90 N.W. 260 | N.D. | 1903
The plaintiff in this action seeks to have certain taxes, claimed to have been illegally levied against it, set aside, and the collection of such taxes perpetually restrained. The grounds on which it seeks to secure such permanent injunction are the following, as recited in the complaint: That the county commissioners failed to make a lawful levy of any taxes in said county for the year 1900, for the reason that such commissioners did not make the itemized statement of the county expenses for the ensuing year, as provided by section 1228, Rev. Codes. The proceedings of the county commissioners, so far as an attempt to levy taxes for the year 1900, as based upon an itemized statement, are the following, viz.: “On motion the following levy was made for county expenses for the ensuing year: County general fund, $20,000; sinking fund, $2,000; road and bridge, $3,500.” In the published proceedings of such board of commissioners there appears no different or other
It is strenuously contended by the appellant that the omission to make such itemzied statement rendered any attempted levy void, and that no tax levied without a preliminary itemized statement can be a valid tax, and that the attempted levy of a road and bridge tax, without an itemized statement of the cost of such bridge or road, and without a preliminary petition to such commissioners, rendered the whole tax levied for county purposes void. It is admitted that the state tax levied by the state board of equilization is valid, and not subject to attack on any grounds. The tax involved in this suit was levied or attempted to be levied in July, 1900, and its collection was enjoined by a temporary injunction in January, 1901, and before such taxes became delinquent. The case therefore presents the question whether a court of equity will interfere with the collection of this tax, under the circumstances pleaded and stipulated, or whether the plaintiff will be left to pursue its remedies by an action at law. It is claimed by appellant that the facts pleaded and proven bring the case within the rule adopted by courts justifying the interposition of a court of equity to restrain the collection of the tax. The defendant contends that the plaintiff has not brought itself within any of the recognized principles of equity jurisprudence justifying it in passing by remedies at law and resorting to injunctional proceedings. A statement of the allegations of the complaint will show the basis of plaintiff’s contention. The complaint alleges (omitting allegation of incorporation) : “And as such corporation has during all of said time owned and operated, and now owns and operates, a line of railroad in said state of North Dakota, extending into and through the said county of Dickey, and as such corporation is liable for the payment of all taxes legally assessed and levied on its roadbed, franchise, rails, rolling stock, and other property belonging to said plaintiff, situated in said county of Dickey and state of North Dakota.” Then follow allegations of the levy in question claimed to be void by reason of there being no itemized statement, and the omission of other requisites to making levies, claimed to be mandatory; the extension by the county auditor of the taxes so attempted to be levied against, plaintiff’s property; and the following allegation, given in the language of the complaint:
It follows that the judgment of the district court must be affirmed.