Wood v. Bangs

• Citation: 46 N.W. 586,1 Dak. 179
• Parties: Wood et al. v. Bangs et al.
• Decision Date: 31 December 1875
• Court: Supreme Court of South Dakota

46 N.W. 586

1 Dak. 179

Wood et al.

v.Bangs et al.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1875.

Appeal from district court, Bon Homme county.Bartlett Tripp, for appellants. Moody & Cramer, for appellees.

BARNES, J.

This action is brought by the plaintiffs, residents and tax-payers of Bon Homme county, against the defendants, Bangs, Zitka, and Donley, as county commissioners of Bon Homme county, George J. Rounds, treasurer of said county, A. M. English and H. H. Calhoun, as contracting parties for the building of a court-house for Bon Homme county, and W. A. Burleigh and A. J. Faulk, persons having purchased and holding county orders, issued to English and Calhoun, in payment of said court-house contract, and by them transferred to defendants Burleigh and Faulk. The plaintiffs ask that a certain contract made between the commissioners on the part of the county and English and Calhoun, the contractors for the building of the court-house, be set aside, annulled, and declared void, that the county warrants issued in pursuance of that contract, and in the hands of Burleigh and Faulk, be returned and canceled, the same having been issued without authority of law, and that the treasurer, Rounds, be perpetually enjoined from paying warrants issued in payment for building the court-house. The court below refused the demands of the plaintiffs, and judgment was entered for the defendants. From that judgment the plaintiffs appeal.

The first question to be considered is this: Under what circumstances will a court of chancery interfere by injunction to restrain the acts of a corporation, or the acts of an administrative officer or board? An injunction will not be granted to restrain the doing of an act which is unlawful and irregular, unless substantial and positive injury will result from a refusal to grant the writ. High, Inj. § 9. An injunction will never be granted when it will be productive of hardship, oppression, or injustice, or public or private mischief. Sheldon v. Rock well, 9 Wis. 168.The court of equity will not interfere or restrain the execution of a deed for land sold for taxes, on the ground that the tax proceedings were irregular or void, unless it further appears that the tax proceedings are inequitable, and that it would be against equity and good conscience to refuse the writ. See 1 U. S. Dig. (N. S.) § 6, and cases there cited; Warden v. Board, 14 Wis. 618. See, also, Pettibone v. Railroad Co. Id. 443. In the case just cited the court uses this somewhat significant language: “The inconvenience which would result from an injunction, adds great weight to the reason for refusing it.” The granting or refusing an injunction rests in the sound discretion of the court, and will never be granted when productive of hardship, oppression, or public mischief. Injunction will not be granted when the benefit secured by it to one party is of but little importance, while it will operate oppressively, and to the great annoyance and injury of the other party, unless the wrong complained of is so wanton and unprovoked in its character as properly to deprive the wrong-doer of the benefit of any consideration as to its injurious consequence. Railroad Co. v. Prudden, 20 N. J. Eq. 530, (1869.) An injunction will not be granted when the injury complained of is slight compared to the inconvenience to the defendant and the public that would result from the granting of the injunction. Higbee v. Railroad, etc., Co., 20 N. J. Eq. 435. But perhaps the strongest case bearing on this question is that of Kneeland v. City of Milwaukee, 15 Wis. 454. The legislature of Wisconsin passed a law allowing the railroad corporations to pay a certain percentage upon their earnings each year to the state treasurer, in lieu of all taxes, state, county, and municipal. This mode of taxation had been followed for a number of years, when the present case was before the court. The court declared the act of the legislature void, as being in conflict with the provision of the state constitution which provides that taxation shall be equal, and both the Chief Justice and Justice Paine, in unmistakable language declare that whatever the consequence of their decision may be, they being satisfied that the law referred to was in violation of the provisions of the constitution, they must and will so declare it. It was soon discovered that that decision would unsettle and make void a large proportion of the assessments and collection of taxes in the state for several years past; that the confusion, embarrassment, and litigation that would flow from it would be disastrous. They therefore ordered a reargument of the case, and while adhering to their formerly expressed opinion that the law was unconstitutional, yet, in view of the disastrous consequences that must follow their decision, they reverse that decision, and thus allow the wrongful, unequal, and inequitable tax to be collected, and this, too, solely upon the ground that granting the plaintiff that which the court says he was equitably entitled to, would work a great hardship to the public generally.

I will now consider the facts in this case, and for the purpose of this argument, and that only, will assume that the county commissioners exceeded their authority, and will also assume for the purpose of this argument that the plaintiffs, as tax-payers, unitedly have a right to maintain this action. From the facts disclosed in this case, it appears that by an act of the legislature of the territory, two terms of the district court are required to be held in Bon Homme county each year. It further appears that the county has no court-house nor place for holding court or transacting county business, nor is there any place at the county-seat that can be procured by the county for that purpose. The law makes it the duty of the commissioners to provide a place for holding court, and the transaction of other county business. The law also authorizes them to make contracts for the erection of county buildings, and also to make contracts for the repair of the same, whenever necessary. From these facts it clearly appears that there was a pressing, if not an imperative, necessity for action on the part of the county commissioners. Recognizing this necessity, they assemble at their usual and accustomed place of meeting; they cause public notice to be given that proposals will be received for the building of a court-house. Proposals are submitted to them, are duly examined by them, and the fact disclosed that the defendants English and Calhoun are the lowest responsible bidders, and to them is awarded the contract for building the court-house. The plaintiffs, it appears, or some of them, are present at these meetings, and enter their objection or protest against the action of the board. Now, we will not stop to inquire whether these plaintiffs, feeling aggrieved by the action of the commissioners, should not have appealed from that decision, and whether that was not the proper and only remedy. But we examine the action of the commissioners for the purpose of noting the fact that they appear to have acted in perfect good faith,-an important consideration in an equity proceeding. It further appears that the contract was made with the defendants English and Calhoun to build the courthouse, for the sum of $3,333; that that sum was to be paid in county warrants. It also appears conclusively that it was worth in cash to build the court-house the sum which the defendants English and Calhoun received, or were to receive, in warrants, and it appears with equal clearness that these warrants were in part worth not to exceed 50 cents on the dollar. I think, too, it also appears from the evidence that the defendants Burleigh and Faulk, being solicitous for this improvement, purchased these county warrants of English and Calhoun, and paid their face or par value. Be this as it may, the fact nevertheless appears that Bon Homme county have their court-house at about one-half its value, when we reduce the warrants in which payments for the improvement have been made, to a cash basis. From the statement it will be at once seen that the building of the court-house has not depreciated the value of county warrants. It should now be observed that the defendants the commissioners, in contemplation of law, represent all the residents, the tax-payers, and freeholders of their county; that they thus represent the plaintiffs, who, being tax-payers, have no interest that is not an interest in common with all tax-payers. Assuming, therefore, that the commissioners exceeded their authority in entering into a contract in the precise terms of this contract, or assuming even that this contract is void, the question of the building of the court-house not having been submitted to a vote of the electors, the fact is nevertheless clear that the...