13 S.D. 576 | S.D. | 1900
The plaintiff, who owned a two-thirds interest in certain real property in the city of Pierre, brought this action for the purpose of having certain taxes thereon declared void, and the cloud caused thereby removed. The trial court decided that none of the allegations of the complaint were established except such as were admitted by the answer, and « concluded that, the action should be [.dismissed upon its merits. An application for a new trial having been denied, the plaintiff appealed.
The decision below is clearly sufficient to support the judgment. Only one error at law occurring at the trial is assigned; hence, with that exception, the only inquiry is whether the complaint contains any material controverted facts which were
We will now proceed to consider these controverted allegations in their order. As to paragraph 8, the evidence discloses that the city levy in 1890 was based upon an estimate made by the auditor, and we are unable to discover in what manner the failure to pass a general appropriation ordinance affected the validity of the levy. Such failure may have interfered with the right of the city to make contracts or expend money during the current fiscal year, but it did not affect the levy in any respect whatever. There is no more connection between the general appropriation ordinance required by the statute and the levy and collection of city taxes than there is between the levy of state taxes and legislative appropriations. Laws 1890, chap. 37 Art. 15. It is contended that the levy was in excess of the amounts permitted under Comp. Laws, §§ 1155-1158, inclusive. This is untenable. The law applicable reads as follows: “The city council shall at the first regular meeting in September, or within ten days thereafter, levy a tax for gen
Paragraph 9: It is not shown by a clear preponderance of the evidence that the county levy of 1.5 mills was made for the purpose of paying Illegal bonds. The most that can be claimed is that there may have been county bonds issued with
Paragraph 10: The statute then in force directed the county auditor to prepare a duplicate of the tax list, and deliver the same to the county treasurer on or before the 1st day of November following the date of the levy for the current year. Comp. Laws, § 1591. Since 1891 the time for delivering the duplicate has been the 1st day of December. Laws 1891, chap. 14, § 75; Laws 1897, chap. 28, § 74. It would be sacrificing substance to form to hold that a failure on the part of the auditor to strictly comply with the statute as to the date of delivering the duplicate should invalidate all taxes levied in the county for the current year. If the duplicate be delivered before, the taxes become due, no one can possibly suffer any injury by reason of its not having been handed to the treasurer on or before the date fixed by the statute. It was not reversible error for the trial court to find against the plaintiff as to this fact, because it was wholly immaterial.
Paragraph 11: What has been said disposes of the allegation relative to the appropriation. The allegation relating to exemption's is not sufficiently definite and certain, as to the amount of such exemptions, to raise an issue; but this objection may have been waived by the admissions of the defendants. We will assume that it was, and consider the facts to be as admitted upon the trial. The admission is in the following
Paragraph 12: The treasurer may not have resorted to all the methods provided by the statute for collecting the taxes against plaintiff’s property. Laws 1891, Chap. 14, § 107. His
The only matter contained in Paragraph 13 which has not been heretofore considered is that the city levy did not specify for what it - was made. The statute required that the levy be for “general purposes,’’but there was no substantial de parture from this'requirement. The action of the council was thus recorded: “Resolved, that the sum of 12^- mills be levied on each dollar of valuation of the taxable property of the city of Pierre, South Dak., for the ensuing year.” This was equivalent to a levy of that amount for general purposes, and the omission of any levy for interest and sinking fund did not invalidate the levy for general purposes. As heretofore observed, this levy was not.in excess of any statutory limitation, and could have included “general purposes” and “sinking fund” in one item. Laws. 1890, Chap. 37, Art. 10, § 7.
Paragraph 14: In 1891 the county was authorized to levy for “sinking fund such rate as in the estimation of the board of county commissioners will pay one year’s interest on all outstanding debts of the county, with not to exceed 15 per cent on the principal.” Laws 1891, Chap. 14, § 73. In the absence of any evidence to the contrary, it will be presumed the board properly performed its duty in this respect.
Paragraph 15: We have been unable to find any evidence as to the value of plaintiff’s property, and we cannot say, after a careful examination of the record, that any of the allegations in this paragraph are proven by a clear preponderance of the evidence. Hence, under the established rule in this jurisdic
Paragraphs 16 and 17 contain no material facts not heretofore discussed, and the decision below respecting the same is sustained.
Concerning the facts alleged in Paragraph 22, the treasurer testified as follows: - “Lots 1, 2, and 6 in Block 7 of Original Plat to Pierre and Lots 13 and 14 in Block. 3 of First Railway-addition to Pierre were sold November 10, 1892, for the taxes of 1890 and 1891, for the following amounts: Lots 1 and 2 in Block 7, together, for $728.46, Lot 6 in same block for $536.61, and Lots 13, and 14 in Block 3 of First Railway addition, both together, for $276.49. These were all sold to Hughes county. All the memorandum that was made of these sales at the time of sale was a note on the tax list indicating that county was the bidder. The only memorandum made for Lots 1, 2, and 6, Original Plat, was ‘Co.,’ and for Lots 13 and 14, Block 3, of First Railway'addition was ‘See 1890 tax,’ and there is no memorandum on the page referred to except- “No. of certificate 288.’ This memorandum was made after the sale as soon as we could get to it. It may have been ten days after sale. There was no memorandum made on day of sale. The treasurer has the certificates of sale on file, and they were issued to Hughes county under date November 10, 1892. I mean that is the date they were offered for-, sale. They were not made at that time. They were made five or six or-ten days afterwards. As soon as the sale closes, we commence to write the certificates. They are written up in rotation. The certificates have remained in my possession ever since. The taxes for which these sales were made have never been canceled on
For reasons heretofore given the trial court did not err in finding that the allegations of paragraph 23 were not proved.
The allegations of paragraph 25 not having been established by a clear preponderance of the evidence, the decision of the trial court in relation thereto is sustained. The matters alleged in paragraphs 26, 27, and 28 have been already considered. The allegations of paragraph 301 are not established by a clear preponderance of the evidence. Paragraphs 31 and 33 are sustained by the evidence, but the failure of the trial court to so find was not reversible error, for the reason that, in view of the plaintiff’s failure to establish any fact which invalidated the taxes in question, a finding in her favor as to these paragraphs would have been of no benefit whatever. The plaintiff offered in evidence the county levy of 1892 for the purpose of showing that the same was not in compliance with law. So much of it as is presented by appellant’s abstract reads as follows-
“ sinking fund......................................... 4.004 “
“ insane fund.......................................... -J.0005 “
Total.................................................. 13.0013 “
School district Pierre........................................ 6.006 •
Pierre city................................................ 17.0017
Defendants objected to the offered record on the ground that it does not appear to be illegal, but in strict comformity to statute. The court ruled that it should be presumed that the record was intended to levy so many mills on the dollar valuation, that there was nothing on the face of the record to preclude such presumption, and excluded the evidence. Error cannot be predicated upon this ruling. 1 ‘The law respects form less than substance.” Comp. Laws, § 4715. However inartistic the arrangement of these words, numerals, and signs, there can be no doubt as to what was intended. In the absence of any showing that the levy was so construed, in the computation of taxes, as to be illegal, and in the absence of the entire record made by the county in connection with the levy, and in the absence.of the entire record offered in the court below1, we cannot hold that the ruling of the learned circuit court was erroneous. The judgment appealed from is affirmed.