12 S.D. 124 | S.D. | 1899
This appeal is from an order sustaining a demurrer to the complaint. It appears upon the face of the complaint that the plaintiff is one of the organized counties of this state; that in 1888 certain personal property, then owned by defendant and situate within the plaintiff county, where defendant then resided, was duly assessed, and certain taxes for territorial, county, and other purposes were duly levied thereon, which have, not been paid; that, before the taxes so levied - became due, defendant disposed of and removed from the territory all of the personal property thus assessed; that he has since then been a nonresident of the territory and state; that when said taxes became due and deliquent the treasurer of said county was unable to collect same by distress and sale of personal property, by reason of his inability to find any such property of, or belonging to, the defendant in said county; that,
Since.prior to the levy of these taxes, the statutes of this state have provided for the collection of taxes-on personal property by distress and sale, and have not at any time, so far as we are aware, authorized the collection of such taxes by action. Comp. Laws, §§ 1609-1618, inclusive. The special method thus provided is plain, speedy, and adequate. There may be decisions which announce a different doctrine, but the overwhelming weight of authority sustains the view that a tax is not a “debt,” in the ordinary sense of that word; that, when the statute prescribes no special manner for its collection, it may be collected by ap action at law, but, when an adequate method is provided by statute, an action for its collection cannot be maintained. Gatling v. Commissioners, 92 N. C. 536; Board of Com’rs. v. First Nat. Bank (Kan. Sup.) 30 Pac. 22; Water-Supply Co. v Bell (Colo. Sup.) 36 Pac. 1102; City of Camden v. Allen, 26 N. J. Law, 398; City of Detroit v. Jepp, 52 Mich. 458, 18 N. W. 217; Hibbard v. Clark, 56 N. H. 155; Richards v. Com’rs., 40 Neb. 45, 58 N. W. 594; Louisville Water Co. v. Com., 89 Ky. 244, 12 S. W. 300; State v. Piazza, 66 Miss. 426, 6 South. 316.
Appellant cites the following cases in support of its contention that the special statutory method is not exclusive: McLean v. Myers, 134 N. Y. 480, 32 N E. 63; People v. Seymour, 16 Cal. 332; City of Davenport v. Chicago, R. I. & P. R. Co. 38 Iowa, 633; City of Dubuque v. Illinois Cent. R. Co. 39 Iowa, 56; City of Burlington v. Burlington & M. R. R. Co. 41 Iowa, 134; and Dollar Sav. Bank v. U. S. 19 Wall. 227. McLean v. Myers does not sustain the contention, because the