189 N.W. 240 | N.D. | 1922
Lead Opinion
The plaintiff, as a taxpayer, seeks to enjoin the assessment, levy, and collection of school taxes and to adjudge, as illegal, the proceedings had in the organization of a special school district. The record discloses the following facts: The plaintiff owns three quarter sections of land in Banner township. Pie is a resident, citizen, and taxpayer in such township and in Banner school district, a common school district situated within Banner township. In July, 1920, the village of Alsen was organized as a village. It comprises 30 sections of land — six in Henderson township; nine in Gordon township; nine in Storlie township; and six in Banner -township. Four of these sections in Banner
Upon this complaint, the trial court issued a temporary injunctional order restraining the defendants as demanded. A general demurrer was interposed which asserted lack of legal capacity to sue, lack of grounds for issuing a restraining order, impropriety of restraining public officers, and the failure to state a cause of action. Separate answers were interposed alleging, generally, the legal' organization of the special
Plaintiff has demanded trial de novo. He contends that the village of Alsen was organized for the special purpose of permitting such organization to be used in the creation of the special school district; that the record clearly discloses that the Alsen special school district was organized pursuant to § 1243, C. U. 1913; that such section is inapplicable and would serve to permit the detaching of territory from a common school district without notice and without its consent; that •§§ 1230 — 1239, C.-L,. 1913, provide for notice and for an election where it so attempted to detach territory from a common school district, and are the sections applicable. ,
Decision.
Upon this record plaintiff’s right to maintain this action depends upon his residence and status as a taxpayer in Banner school district. The gravamen of his injury alleged is the detriment to be suffered as a taxpayer. The remedy sought is restraint in the assessment, levy, and collection of school taxes through a determination of illegality of procedure in organizing a special school district. Irrespective of the propriety of his status as a plaintiff or that of some of the defendants as necessary or proper defendants in this proceeding, it is manifest, for some evident reasons, that this court, at this time, and upon this record, is not in a position to restrain the assessment, levy, or collection of the school taxes involved, or to determine the illegality- of the organization of Alsen special school district. This court cannot award to the plaintiff now the relief sought. The plaintiff does not challenge the validity of the proceedings which organized Alsen as a village. After the judgment was entered herein dismissing the action, the temporary injunctional order issued by the trial court was dismissed. Plaintiff did not secure a stay thereof. - He did not appeal until nearly two months after such injunctional order was dismissed. Manifestly from October, 1921, until the present time the special school district has acted and continued to act as a de facto corporation. Presumably statutory provisions with respect to the assessment and levy of taxes have been fulfilled. Accordingly the taxes concerning which complaint has been made have been levied and assessed against the individual tracts of land concerned in this proceed-ing. - Perhaps such taxes have been paid. The time within which such payment might have been made without penalty has elapsed. The
The appeal is dismissed.
Concurrence Opinion
(concurring). Plaintiff’s cause of action is predicated upon the propositon that the proceedings had- for the organization
“The plaintiff has alleged that the proceedings taken by the Alsen special school district for its organization were illegal and void, and therefore the court holds as a matter of law that the burden of proof was upon the plaintiff to show the court all the proceedings that were taken by the Alsen special school disrtict in the organization of said special school district. They have only seen fit to introduce the papers found with the county auditor. The evidence in the case shows that there were other proceedings and other elections, and plaintiff did not see fit to introduce or produce them.”
The court therefore concluded that the plaintiff had failed to sustain the burden of proving that the proceedings for the organization of Alsen special school district were void. The record sustains the statement made in the memorandum opinion. And, of course, it fpllows that the trial court was right in dismissing the action.
