Bismarck Water Supply Company v. Barnes

• Decision Date: 27 May 1915
• Court: North Dakota Supreme Court

153 N.W. 454

30 N.D. 555

BISMARCK WATER SUPPLY COMPANY v. FRANK BARNES, as Sheriff of Burleigh County, et al

Supreme Court of North Dakota

May 27, 1915

From a judgment of the District Court of Burleigh County, Nuessle J., plaintiff appeals.

Affirmed.

Engerud Holt, & Frame, for appellant.

The plaintiff is entitled to equitable remedy, or to injunction. The value of the personal property taken by the sheriff, as well as any damages suffered, cannot be ascertained and recovered in an action at law. Schaffner v. Young, 10 N.D. 245, 86 N.W. 733; 5 Pom. Eq. Jur. §§ 359 362.

Where such is the condition, or where the personal property is of such a character that irreparable injury will ensue, the rule is that resort may be had to equitable remedies. Bank of Kentucky v. Stone, 88 F. 383, affirmed in 174 U.S. 409 43 L. ed. 1027, 19 S.Ct. 880; Schaffner v. Young, supra; Southern R. Co. v. Asheville, 69 F. 359; Wright v. Southwestern R. Co., 64 Ga. 786; Phelan v. Smith, 22 Wash. 397, 61 P. 31; Detroit v. Wayne Circuit Judge, 127 Mich. 604, 86 N.W. 1032; Cummings v. Merchants' Nat. Bank, 101 U.S. 153, 25 L. ed. 903.

County boards of equalization have no jurisdiction to correct individual valuations made by city boards. First Nat. Bank v. Lewis, 18 N.D. 390, 121 N.W. 836; Minot v. Amundson, 22 N.D. 236, 133 N.W. 551.

No tender in such cases is necessary before bringing action. Northern P. R. Co. v. McGinnis, 4 N.D. 494, 61 N.W. 1032; Northern P. R. Co. v. Barnes, 2 N.D. 310, 51 N.W. 386; Farrington v. New England Invest. Co., 1 N.D. 102, 45 N.W. 191; Laws 1903, chap. 157; Rev. Codes 1905, §§ 1623 et seq., Comp. Laws 1913, § 2238.

The court has the right to require the payment of the taxes justly due within a reasonable time, as a condition of relief. Fenton v. Minnesota Title Ins. & Trust Co., 15 N.D. 365, 125 Am. St. Rep. 599, 109 N.W. 363; Powers v. First Nat. Bank, 15 N.D. 466, 109 N.W. 361; State Finance Co. v. Beck, 15 N.D. 380, 109 N.W. 357.

If suit were brought to cancel a specific invalid tax, then tender or offer to pay the valid part of the tax first would be necessary. Powers v. First Nat. Bank, 15 N.D. 466, 109 N.W. 361; Douglas v. Fargo, 13 N.D. 467, 101 N.W. 919.

The statute contemplates that the taxes when not invalid shall be reimposed and resale had. Roberts v. First Nat. Bank, 8 N.D. 513, 79 N.W. 1049; Laws 1903, chap. 158 (Rev. Codes 1905, §§ 1617, 1622, Comp. Laws 1913, §§ 2232, 2237).

No interest or penalty can be exacted. The requirement shall be to pay only to the extent that the taxes are valid. Laws 1903, chap. 157, § 4 (Rev. Codes 1905, § 1623, Comp. Laws 1913, § 2238); Const. § 174.

H. R. Berndt, State's Attorney, and F. E. McCurdy and Geo. E. Wallace, for respondent.

Where the reason for a rule does not exist, the rule itself is suspended. Injunction will not lie, and equity will not interfere, against a distraint of personal property for taxes, as a rule. Schaffner v. Young, 10 N.D. 245, 86 N.W. 733; 5 Pom. Eq. Jur. § 359.

Courts are not instruments to review an assessment for taxes. George C. Bagley Elevator Co. v. Butler, 24 S.D. 429, 123 N.W. 866.

The value of property for taxation purposes is that fixed by the board of equalization. Dakota Loan & T. Co. v. Codington County, 9 S.D. 159, 68 N.W. 314.

There are no limitations on the legislative powers of the legislature except such as are imposed by the state and Federal Constitutions. Re Watson, 17 S.D. 486, 97 N.W. 463, 2 Ann. Cas. 321.

A tax is defined to be a burden imposed by legislative authority to raise money for public purposes. Hanson v. Franklin, 19 N.D. 259, 123 N.W. 386.

The power to raise revenue by taxation is a necessary attribute of sovereignty. Re Lipschitz, 14 N.D. 622, 95 N.W. 157.

OPINION

CHRISTIANSON, J.

This is an action in equity brought to enjoin the defendant Barnes, who is the sheriff of Burleigh county, from enforcing a certain personal property tax levied against plaintiff's property situated in the city of Bismarck, in Burleigh county, for the years 1909 and 1910. The city of Bismarck and the county of Burleigh were also made parties defendant.

The suit was commenced on January 31, 1912, in the district court of Burleigh county. The plaintiff is a foreign corporation organized under the laws of the state of West Virginia, owning and operating the waterworks plant in the City of Bismarck, in Burleigh County, and as far as the pleadings and record in this case show, this is the only property of any kind owned by the plaintiff within the state of North Dakota.

The material allegations of the complaint are substantially as follows:

"That the actual cost value of plaintiff's waterworks plant in Bismarck in the years 1909 and 1910 did not exceed the sum of $ 85,000. That in the year 1909 and ever since that time the municipal government of the city of Bismarck has been and now is vested in a board of five commissioners. That in the month of June, 1909, said board of city commissioners, sitting and acting as the board of equalization of assessments for said city, fixed the value of this plaintiff's said water supply plant, and assessed the same for the purpose of taxation at the sum of $ 40,500, and thereafter at the regular meeting of the state board of equalization of assessments for the state of North Dakota in said year, said state board increased the valuation and assessments of all property in the state 12 1/2 per cent, thereby increasing this plaintiff's assessments to the sum of $ 45,562, and thereupon the annual tax levies for said year were made by the respective taxing officers for the respective purposes provided by law, the taxes for said year for all purposes were imposed and charged upon and against plaintiff's said property and computed and fixed on the basis of said assessment of $ 45,562, resulting in an aggregate tax in the sum of $ 2,237.09. That in the year 1910 said board of commissioners of the city of Bismarck in like manner valued and assessed said property for the purpose of taxation at the sum of $ 36,000, and the taxes for all purposes for said year 1910 were computed, imposed, and charged upon and against said property based on said valuation and assessment of $ 36,000, resulting in an aggregate tax of $ 1,926. That notwithstanding the legal requirements that all property shall be assessed for taxation at its actual cash value, the uniform practice throughout all parts of the state of North Dakota always has been, and was in the year 1909 and 1910, to value taxable property at much less than its actual cash value; and said practice has been universally and uniformly followed and acquiesced in by all assessors, boards of equalization, and taxing officers throughout the entire state of North Dakota.

"That in the years 1909 and 1910 the city board of equalization of said city of Bismarck, as well as all other boards of equalization in Burleigh county, and in all other parts of the state, in fixing the assessed value of property for taxation adopted and used as the assessable value a value which was intended to represent approximately 25 per cent of the actual value of the property assessed; and the assessed value was computed by taking one fourth of the conservatively estimated actual value, as the assessed value.

"That in assessing and equalizing assessments of taxable property throughout the city of Bismarck in the years 1909 and 1910, said city board of equalization acted upon and applied the aforesaid practice of fixing the assessed value of property at approximately 25 per cent of its actual value as to all taxpayers, save and except as to this plaintiff. That with respect to this plaintiff's said establishment, said city board of equalization intentionally and arbitrarily departed from said general rule, and willfully and unjustly assessed this plaintiff's property at a value representing approximately 50 per cent of its actual value, as said board then and there well knew; and this was done with the intent and for the purpose of fraudulently causing to be imposed upon this plaintiff a rate of taxation in excess of the rate of taxation imposed on other taxpayers in said city.

"That the just and true assessable value of said property in the years 1909 and 1910 was not to exceed the sum of $ 85,000, and the just and true amount of taxes that this plaintiff ought to pay for said respective years on said property is for 1909 not to exceed the sum of $ 1,200, and for 1910 not to exceed the sum of $ 900.

"That plaintiff did, on the 11th day of August, 1911, pay to the county treasurer of Burleigh county, in part payment of the 1910 taxes, the sum of $ 692.18, and is now ready and willing to pay, and hereby offers to pay, sums stated in P VI. in this complaint (less the partial payment last mentioned), or such other or different sum as this court may find to be justly due or owing for or on account of the taxes on said property for said respective years.

"That plaintiff has offered to pay to the county treasurer of Burleigh county the just amount of taxes due, but said county treasurer has refused and still refuses to accept any other or different sum than the full amount of said taxes as they appear charged on the tax lists, with interest and penalties.

"That the defendant Barnes, who is the sheriff of Burleigh county has by virtue of his office as sheriff, and pursuant to the statute in such cases made and provided, made distraint upon and seized all this plaintiff's said property for the purpose of selling the same for the satisfaction of said pretended taxes, and asserts and claims that the aggregate sum due for such taxes, exclusive of his fees and costs, is the sum of $ 4,370.-37, and will, unless restrained from so doing, sell and dispose of said...