139 N.W. 525 | N.D. | 1912
This is a proceeding in mandamus to compel the county treasurer of Richland county to credit a collection made by him of interest and penalty collected to the particular drain fund for which such interest and penalty and special assessment was paid. Viking-township, the relator, was assessed $2,641 for special benefits received by highways within its limits from the construction of Viking drain Ho. 14. Upon payment thereof after delinquency, it also paid in addition thereto the sum of $185 as interest and penalty upon such special assessment, which sum was so received by the county treasurer of Richland county. The total payment was then divided, and said offi
On the merits, appellant’s contentions are summarized by him to be: “First, that there was no law authorizing the collection of either interest or penalty at the time of this collection, it being prior to the enactment of chap. 125 of the Session Laws of 1911; and, second, that under the law this interest and penalty collected belonged to the county.” To the first of these propositions we unqualifiedly agree. We have held in Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433, that on special assessments levied for drainage purposes prior to the 1911 statute, no interest and penalty can legally be collected. Until the enactment of the 1911 statute, no authority existed for the collection of interest and penalty upon drainage assessments. We may here remark that cities have always had statutory authority for the collection of interest and penalty on special assessments for city purposes, so this holding concerning interest and penalty on drain assessments is not to be understood as applying to the collection of special assessments for cities. Rev. Codes 1905, Sec. 2807; Fargo v. Ross, 11 N. D. 369, 92 N. W. 449; Pine Tree Lumber Co. v. Fargo, 12 N. D. 360, 96 N. W. 357; Red River Valley Nat. Bank v. Fargo, 14 N. D. 88, 103 N. W. 390.
The question then is, Conceding that the amount so paid for and as interest and penalty on delinquent special assessments could not have been collected if it had not been voluntarily paid for such purposes, does it belong to the county or to the said drain fund ? The statute, § 1832, Rev. Codes 1905, as amended by the Session Laws of 1907, at page 127, concerning the collection of drainage assessments, provides: “The drain taxes shall be collected by the county treasurer, and all moneys so collected shall be credited to the drain fund to which they belong, and the county treasurer shall be the treasurer of such drain: funds.” The excess part of this special assessment collection then was so collected by the treasurer of this drain fund, the county treasurer
But appellants contend that § 1575, Rev. Codes 1905, operates to transfer the right to this penalty and interest collection to the county. The statute reads: “All penalty and interest collected on taxes shall belong to the county and become a part of the general fund, or such other fund as the county commissioners may direct; except the penalty
But there is another all-sufficient reason why the appellant, the county- treasurer, should not prevail. Appellant cannot he heard to urge any irregularity or illegality in this collection as against the respondent so interested in the Yiking township drain fund. Acting as the treasurer of such drain fund, the county treasurer has collected this $185 as interest and penalty and as a part of a total collection made for this particular drain fund of which he is, by virtue of his office, custodian, with the county also a trustee for the fund. He should not he heard to question the legality of his own act in collecting the same. It must, so far as distribution of public funds is concerned, be regarded as drain funds voluntarily paid and legally collected for such purpose. The county having no interest therein, the only duty of its officer and the treasurer of this fund is to credit the amount thereof to this drain fund, and “it is wholly immaterial that the tax collected by him may have been unconstitutional or otherwise illegal and void; or that it was improperly collected as under the authority of a defective assessment or warrant or even without any warrant at all. . . . He cannot impeach his own acts, or question the right of the state or other political.
We should state here that the 7 per cent interest exacted in Hackney v. Elliott, 23 N. D. 373, 137 N. W. 433, was under the principle of compelling equity of one seeking equity. The county had there sold the assessed property at a tax sale and received the purchaser’s money thereon. The sale being adjudged illegal for reasons stated, the county was obliged by statute (§ 1705, Eev. Codes 1905) to reimburse the purchaser with 7 per cent interest from date of sale. Hence, before granting relief from such sale, such repayment with interest should be compelled. But in the absence of a sale, or prior to a sale, no interest can be collected on special drain assessments prior to collections made under the 1911 statute explicitly giving such right.
The appellant has attempted to urge that Eichland county is a proper and necessary party to this proceeding, and that because of the nonjoinder of the county therein there is such a defect of parties as will preclude a judgment on the merits involved. We note that issue was joined by answer to the affidavit and alternative writ after a demurrer had been interposed and sustained and amendments thereafter made to the affidavit and writ, and that the defendant has not demurred because of a defect of parties defendant. And he has answered and joined issue on the merits and thereafter tried such issues. He has therefore waived any defect in parties defendant, granting there may have been such a defect. Sections 6854 & 6858, Rev. Codes 1905; Ross v. Paige, 11 N. D. 458, 92 N. W. 822; Olson v. Shirley, 12 N. D. 106, 96 N. W. 297; Van Gordon v. Goldamer, 16 N. D. 323, 113 N. W. 609, at page 331.
If authority for the remedy of mandamus is necessary, see 26 Cyc. 33,4: “Upon the collection of taxes, mandamus will lie to compel a proper apportionment or division thereof among the municipalities and officers lawfully entitled thereto.” Such only is the relief here sought, in effect a tax apportionment to a particular fund to the credit
As to the extent of the relief to which relator is entitled, the writ properly covered all payments similar to that made by relator, which were paid as a part of, or as interest and penalty upon, special assessments to create the drainage fund for Viking Drain Ho. 14. “The right of a taxpayer to institute an action to enjoin municipal officers from unlawfully dissipating public funds is a right common to all taxpayers, great and small.” Engstad v. Dinnie, 8 N. D. 1, page 12, 76 N. W. 292. This relator township has an interest analogous to that of a taxpayer in the application of all assessments levied to meet the construction of said Viking drain. The township’s interest in real property, like all in said drainage district, is, or may be, subject to reassessment for any deficiency not met by the collection of the assessment made. Therefore, like any ordinary landowner in said drainage district subject to assessment, relator township is entitled to have all funds so collected as penalty and interest, by whomsoever paid, and belonging to said Viking drain fund, and unlawfully diverted therefrom to Richland county, ascertained in amount and retransferred into said drain fund. It was proper for the judgment to so direct.
Judgment for the issuance of a peremptory writ of mandamus is ordered affirmed, with costs.