86 N.W. 733 | N.D. | 1901
This is an action in equity brought to enjoin the defendant, who is sheriff of Mercer county, from selling certain personal property belonging to the plaintiff, which property the defendant, under a warrant of authority issued by the treasurer of said county, had seized and was threatening to sell in satisfaction of certain alleged personal property taxes charged against the plaintiff on the tax lists of Mercer county. At the commencement of the action the District Court issued a preliminary injunctjonal order, whereby defendant was restrained from selling said property until the further order of the court. Later, and by an order dated September 8, 1900, the District Court dissolved and set aside the said preliminary order. Plaintiff has appealed to this court from said last mentioned order.
The facts in the record, which in our judgment, control the result in this court, are uncontradicted, and they may be briefly stated: The plaintiff’s personal property in the years 1897 and 1898 was valued for taxation by one of the qualified and acting assessors of the county of Mercer, and in each of said years the county officials-of Mercer county levied taxes for county revenue against the plaintiff, based on such assessments, and such taxes were later extended upon the tax lists of that county. The warrant of authority under which the defendant seized and distrained the plaintiff’s property’ as above stated was issued by the treasurer of Mercer county, and delivered to the defendant, as sheriff of that county, under the provisions of § 1243 of the Rev. Codes of 1899, relating to the collection of delinquent personal property taxes. This section authorizes the sheriff, when a delinquent list is delivered to him, if the taxes are not paid on demand, to “distrain sufficient goods and chattels belonging to the person charged with such taxes, if found within the county, to pay the same with the said penalty,” etc. In support of his contention the plaintiff claims that the taxes charged against-him on the tax list of Mercer county are absolutely void, for want of authority to lev}'- and extend the same, and this contention rests upon the following state of facts. It is conceded that at all times in question, and long prior thereto, the plaintiff resided on section 10 of township No. 142 N., of range 92 W., and that the property of plaintiff assessed by the assessor of Mercer county in 1897 and 1898 as above stated, was and ever since has been in the possession and custody of the plaintiff at his said place of residence. It is conceded that the plaintiff’s place of residence was originally located within the county of Williams, which county is claimed by both par
But the defendant further contends that the void act of 1895 has-been validated by subsequent legislation, and cites Chap. 57 of the-Laws of 1899 to sustain his contention. This last named act took effect on March 9, 1899, and, if it operated to relate back and reenact the law of 1895, then defendant would be within the protection of the later law when he seized the plaintiff’s property. But it is obvious that the act of 1899 did not operate to validate the void, act of 1895. The act of 1899, including its title, is as follows:
*250 “An act to settle disputes as to county boundaries and to confirm the acts of officials in counties that have exercised jurisdiction over territory not clearly within county boundaries.
“Be it enacted by the legislative assembly of the state of North Dakota:
“Section 1. That all territory within the state of North Dakota over which any county has exercised jurisdiction in civil 'and criminal matters and which has for all intents and purposes been treated as a portion of such county for not less than two years last past, shall be and the same is hereby declared a part of such county, and all of the official acts and doings of all state, county, township, school, district or other officials within such county in the exercise of such jurisdiction are hereby ratified in so far as to give such acts the same validity as they would have had if such territory had been a part of such county when such acts were performed.”
Without commenting upon the fact that this statute embraces two distinct and independent subjects, both of which are expressed in its title, it will suffice to say that the legislature has omitted from the act any provision for submitting, the same to the voters of the county concerned for ratification. This omission renders the act unconstitutional and void in so far as it attempts to change the boundaries of Mercer county, which county is conceded to be an organized county. See § 168, Const. To hold the act of 1899 to be a valid enactment would involve, among other anomalies, the absurd conclusion that the statute, which was invalid under one provision of the organic law, could be rehabilitated by a later statute, which is itself unconstitutional under another feature of the organic law.
But defendant’s counsel contend further that the act of 1899 embraces a curative feature, and it does attempt to ratify the action of all officers over airy territory within the state over which .any county for a period of two years “last past” have exercised jurisdiction in both civil and criminal matters, and which territory “has for all intents and purposes been treated as a portion of such county.” The defendant insists that the effect of this curative feature of the act of 1899 is to validate the action of the officers of Mercer county in all they did during the years 1897 and 1898, and hence that the taxes in question were, under the operation of this act, in all respects valid. But we deem it unnecessary in the present action to pass upon the interesting questions presented by this contention of counsel. The act of 1899, by its terms, is retrospective only. It does not look forward or attempt to cure or validate any action which might be taken by any officer or officers after the date of its passage. The curative feature of the act, therefore, cannot be made available as a shield for any action taken by this defendant, inasmuch as the acts complained of were not committed by the defendant until a date long subsequent to the approval of.the curative act.
Another point made is that the officers of Mercer county, in levying and extending the county and other local taxes of 1897 and 1898,
The considerations already advanced lead to a matter which we regard as controlling. As has been seen, this action is brought in equity, and the relief sought is to enjoin the collection of an alleged tax. The plaintiff claims that such relief may be had in exceptional cases, and that the facts of the present case entitle it to be classed as an exceptional case. Upon the general question whether the injunctional remedy is available to restrain the collection of an illegal or void tax there is abundant authority, but as to the particular circumstances under which this relief will be granted there is a lamentable divergence of judicial opinion, and no end of direct conflict in the cases. It will be conceded, however, that this remedy is, as a general rule, withheld where it is sought to restrain the collection of a personal property tax. In such cases the remedies at law are ordinarily deemed to be adequate, and hence the general rule is that equity will not intervene in such cases. Upon this point, see Cooley, Tax’n, p. 772, and cases in note 2; Clark v. Ganz, 21 Minn. 387; Society v. Austin, 46 Cal. 417. The general rule is stated in 2 Dill Mun. Corp. (4th Ed.) § 924, as follows: “Equity will not, according to the rule generally adopted, restrain even an illegal and void tax assessment, where it is sought to be enforced against personal property only.” See cases cited in note 1. Nevertheless courts of equity will intervene, even in personal property cases, upon a few grounds if in connection with such grounds the bill or complaint embodies other facts sufficient to bring the case within some acknowledged head of equity. . Among the grounds are the following: (1) Where it appears that the property taxed is exempt from taxation; (2) where the tax is not warranted by an}'- law; (3) where the tax is imposed by officers acting outside of their territorial jurisdiction; (4) where the statute under which the tax is levied is unconstitutional. And there are some other grounds deemed to be- sufficient by some courts. We are of the opinion that the case at bar presents ample ground for equitable interference, so far as the mere matter of the tax is concerned. But it is our opinion that the complaint in this action fails wholly to bring the case within the cognizance of a court of equity. There are no facts averred showing that the remedies afforded at law are not adequate. Nothing in the way of facts is alleged tending to show that the seizure and sale of the plaintiff’s property would re-
We deem it proper to add a few words by way of explanation: In formulating this opinion, certain features of the case found in the