Armstrong v. Ogden City

Decision Date21 December 1895
Docket Number598
Citation12 Utah 476,43 P. 119
CourtUtah Supreme Court

APPEAL from the District Court of the Fourth Judicial District. Hon William H. King, Judge.

Action by J. C. Armstrong and others against Ogden City and others to enjoin the levying of a special assessment for street improvements, and for other relief. From a judgment for plaintiffs, defendants appeal.


Mr. R H. Whipple, City Attorney, and Mr. J. N. Kimball, for appellants.

The allegations of the complaint do not bring this case within any of the recognized exceptions to the rule that equity will not grant relief in this class of cases by way of injunction to restrain the collection of a tax. These exceptions are:

First--To prevent a multiplicity of suits.

Second--To prevent irreparable injury.

Third--To remove a cloud from the title.

The question is, whether the case is within either of these exceptions. If the record by which the tax is levied is void upon its face, then the plaintiffs have a plain remedy at common law. If the record does not show the invalidity of the tax, that fact must be clearly alleged in the complaint because, if that is not the case, no cloud would be cast upon the title, and no extrinsic evidence, or evidence de hors the record could be introduced. A failure to make this allegation is fatal. Heywood v. Buffalo, 14 N.Y. 534; Guest v. City of Brooklyn, 69 N.Y. 506; page of opinion, 513; Curtis v. East Saginaw, 35 Mich. 508; Ewing v East St. Louis, 5 Wall (U.S.) 413. Dillon on Municipal Corp., 4th edition, section 611 and cases there cited; Dows v. City of Chicago, 11 Wallace (U.S.) 109.

The fact that the assessment is divided into ten installments does not bring the case within the first exception. A decision upon one installment would be effective upon all. Guest v. City of Brooklyn, supra, 513.

The plaintiffs nowhere allege "irreparable injury to the freehold," or to anything or anyone, and if the taxes, on the face of the proceedings, are illegal and void, as alleged, no irreparable injury can follow from the sale of the property. High on Injunctions, 3d edition, § 491; Dows v. City of Chicago, 11 Wallace 112.

Plaintiffs nowhere allege that the collection of the tax will "engender a multiplicity of suits," nor do they anywhere allege that the collection of the tax will "work irreparable injury."

The allegations as here stated, are mere matters of inference. Shelton v. Platt, 139 U.S. 596.

The cause of gravamen which entitles plaintiff to equitable relief, if they are so entitled, are, "multiplicity of suits," "irreparable injury to the freehold," or "cloud upon the title to the freehold," caused by a collection of the tax.

They cannot be adopted by reference to them in that way. "The distinct causes and their effect must be particularly pleaded in the supplemental complaint." Haskell v. Haskell, 54 Cal. 256. No court shall entertain any complaint that the party was authorized to make and did not make to the city council sitting as a board of equalization, nor any complaint not specified in said notice fully enough to advise the city of the exact nature thereof, nor any complaint that does not go to the groundwork, equity and justice of the tax.

The supreme court of California has just construed a similar statute to this and holds "that the objection made to the council is a condition precedent to a suit to set aside the assessment," and says, "he apparently thought (speaking of the plaintiff), that he could rest quietly upon his oars until the sale, and then invoke the powers of a court of equity. We do not think he can do this. He should have presented his objection to the council. That question cannot be raised for the first time in the courts. Metzch v. Berkhout, 35 P. 321, page of opinion, 323; High on Inj. § 493.

"A court of equity is not a court of errors, to review the actions of public officers in the assessment and collection of taxes, and will not revise their decision. The law has provided a particular mode for the settlement and decision of errors in behalf of persons dissatisfied with the tax, and they must avail themselves of the legal remedy thus prescribed, and will not be allowed to waive such relief and seek in equity to enjoin the collection of the tax." Sundrun v. Mamstee, 53 N.W. R. 161; Warden v. Board of Supervisors, 24 Wis. 672; Macklot v. City of Davenport, 17 Iowa 385; Saving and Loan Society v. Austin, 46 Cal. 488-89-90; see 139 U.S. 596; Houghton v. Austin, 47 Cal. 651; page of opinion 649-50-51.

"If the tax, as assessed, is illegal and void, as insisted by the plaintiff, he had ample remedy at law--could have paid the tax under protest and recovered it back by a suit at law against the city." High on Inj. § 29; C. P. R. R. Co. v. Corcoran, 48 Cal. pp. 69, 70; Roberts v. Greenbush, 4 Am. Rep. 292; Dill on Municipal Corp. § 906 and note.

"If there is a remedy by statute by suit at law, either before or after payment, equity will not grant relief." R. R. Tax Cases, 92 U.S. 575, p. of opinion, 614-15; Shilton v. Platt, 139 U.S. 591, p. of opinion, 594-5-7; Cheatham v. United States, 92 U.S. 89; Snyder v. Marks, 109 U.S. 189, p. of opinion, 193; Dows v. Chicago, 11 Wall. 110; High on Inj. §§ 484 to 487.

"If the preliminary facts are sufficient to authorize the tribunal to proceed in the matter there is jurisdiction, and, although subsequent errors and irregularities may intervene, the proceedings will be valid unless avoided by appeal or certiorari." Elliott on Roads and Streets, p. 224.

"Where, however, there is a petition not plainly insufficient upon its face, but sufficient in form and substance to require a judgment upon its sufficiency, the judgment, whether formerly expressed or not, will uphold the proceedings as against a collateral attack made after the work has been completed." Elliott on Roads and Streets, p. 383.

"In all cases where there is a permanent tribunal to approve or reject a report, there is a tribunal competent to render a judgment strong enough to resist collateral attack." Van Fleet on Coll. Attack, § 63; Elliott on Roads and Streets, p. 259; Beach on Public Corporations, § 1130.

"A common council is such a tribunal." Van Fleet on Coll. Attack, § 801.

"No error of fact makes the judgment void." Van Fleet on Coll. Attack, § 526 and notes.

The plaintiffs have had one trial in this matter before the city council; they were summoned into court by virtue of a notice of intention and submitted the controversy to the judicial decision of the city council, and now they are asking another trial in this court by making a collateral assault upon that decision, and that this is a collateral assault; see Montgomery v. Wassam, 15 N. E. R., p. 795; S. C. 19 N. E. R., p. 184; Van Fleet on Coll. Attack, §§ 3, 4. "Acts of the council in deciding the sufficiency of the protest is a judicial one." Elliott on Roads and Streets, pp. 218, 219. "The record need not show a formal judgment. If the preliminary facts are sufficient to authorize the tribunal to proceed, then there is jurisdiction. The proceedings will be valid until avoided by appeal or certiorari." Elliott on Roads and Streets, p. 224.

"Findings of fact must be responsive to all the material issues raised by the pleadings." Carson v. Thews, 9 P. 605; Hathaway v. Ryan, 51 Cal. 191; Le Cort v. Oullahan, 52 Cal. 252.

"To limit the time of bringing action to sixty days is not unconstitutional." Dillon Municipal Corp., section 67 and note.

"On the ground that legislation concerning municipal corporations is of a peculiar character on account of their being agencies of the government, the court of appeals of Kentucky holds that a charter provision limiting the right to bring actions to recover money improperly paid for taxes to six months when the general statutes of limitations allow five years in such cases, was not unconstitutional for granting a special privilege." Covington v. Hoadley, 83 Ky. 444.

An amended (or supplemental) complaint, which brings in new parties or which states a new cause of action does not relate back to the date of filing the original complaint nor have the effect to escape the statute. Nugent v. Adsit, 53 N.W. 620; Link v. Jarvis, 33 P. 206.

Statute applies to suits in equity as well as in law. (Of course this is elementary.) Chemical Bank v. Kissimee, 32 F. 429.

That case must be started in sixty days. See Cheatham v. United States, 92 U.S. 85; Fogg v. Price, 14 N. E. 741; Dist. Twp. of Spencer v. Dist. Twp. of Riverton, 62 Iowa 30. My contention is that there is misjoinder of parties in the complaint. The right to join as plaintiffs is either several, so that each of the plaintiffs must sue separately, or joint, so that all must sue together. The parties never have the option to sue jointly or severally at their pleasure. Pom. Code Rem. p. 232.

"Where the interests, right and damages are both several, plaintiffs must sue separately." Pom. Code Rem. p. 224. Plaintiffs claim an accounting in this suit. If that contention is true, then the supplemental complaint must fail, for in an action asking an accounting, all persons interested must be made parties. Pom. Code Rem. p. 321 and sec. 257. My contention is that there is a misjoinder of parties in the complaint. The right to join as plaintiffs is either several so that each of the plaintiffs must sue separately, or joint, so that all must sue together. The parties never have the option to sue jointly or severally at their pleasure. Pom. Code Rem. p. 232.

That plaintiffs cannot join in an action of this kind. Barnes v. Beloit, 19 Wis. pp. 93 and 94; Fleming v Mershow, 36 Iowa, p. 413; Burt v. Baldwin, 46 Iowa, p. 323; ...

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