23 Minn. 404 | Minn. | 1877
It is alleged in the complaint that, as directed by Laws 1874, c. 2, amended by Laws 1875, c. 6, c. 8, the defendant, the county auditor of Winona county, bad, prior to May 4,1875, prepared a list of lands delinquent for taxes assessed before 1873, for the purpose of filing the same in the office of the clerk of the district court, on the first Monday of August, 1875, as he intends to do ; that, professing to act under the statutes above cited, the defendant, the board of county commissioners of said county, have designated the Novelty Press, which they style a newspaper,, as the newspaper in which the auditor shall publish the copy of such delinquent list, and the accompanying notice required to be furnished by the clerk for that purpose ; that it is the intention of the commissioners and auditor to pub
The effect of the motion to dismiss being to admit that the Novelty Press is not a newspaper, within the meaning of the statute, and that, therefore, the publication of the list therein is entirely unauthorized, the case presents two questions r (1) Is an injunction a proper remedy? (2) Are the plaintiffs the proper parties to an action for such remedy ?
It is claimed that, as the collection of the delinquent taxes (some $15,000) depends upon the legality and regularity of the proceedings for their collection, they will be imperilled, and the county lose or be in danger of losing them, if the publication is made in the unauthorized manner proposed. It is further claimed that to pay for the unauthorized publication out of the county funds will be a misapplication of the same.
Upon the allegations of the complaint these' claims would appear to be well founded. That there is some remedy in a case of this kind is not questioned. Is there an adequate
This brings us to the other question, viz.: Are the plaintiffs, the proper parties to an action for an injunction?
It is to be observed, at the outset, that it is not the object of this action to restrain or interfere with the collection of taxes. It is true that the designation.of a proper newspaper in which the delinquent list shall be published-, and proper publication, are parts of the machinery provided for the collection of taxes. But in the case, at bar the designation
The effect upon the tax-payer is to increase his burden of taxation, at least indirectly. Upon the question whether an individual tax-payer may, in his own name, and on his own behalf, maintain a suit in equity to restrain unlawful municipal action which leads, directly or indirectly, to taxation, the adjudications disagree; but, in accordance with the decided preponderance of authority, we are of opinion that a tax-payer, as specially damaged by the increase of the burden of taxation upon his property, has a special interest, distinct from that of the general public, in the subject of a suit brought to restrain unlawful municipal action, from which such increase will result. In a case, therefore, like this at bar, in which irreparable injury will result from unlawful municipal action, an individual tax-payer, whose burden of taxation will be thereby increased, may, in his own name, and in his own behalf, maintain a suit for an injunction by which such unlawful action maybe restrained. Cooley on Taxation, 548 ; 2 Dillon Mun. Corp. §§ 731 — 736.
It follows that the plaintiffs, who allege themselves to be
Judgment reversed.