Bramwell v. Guheen

• Decision Date: 24 February 1892
• Citation: 3 Idaho 347,29 P. 110
• Parties: BRAMWELL v. GUHEEN, ASSESSOR
• Court: Idaho Supreme Court

29 P. 110

3 Idaho 347

BRAMWELL v. GUHEEN, ASSESSOR

Supreme Court of Idaho

February 24, 1892

SPECIAL TAX BY SCHOOL DISTRICT-LITERAL COMPLIANCE WITH PROVISIONS OF STATUTE REQUIRED.-1. Where the statute provides for the levying of a special tax by a school district, and prescribes the manner in which such levy must be made, a literal compliance with the requirements of the statute is necessary to the validity of the tax.

INJUNCTION LIES TO RESTRAIN COLLECTION.-2. Injunction will lie to restrain the collection of an illegal tax, where it creates a cloud upon title to real estate.

(Syllabus by the court.)

APPEAL from District Court, Bingham, County.

Reversed and remanded, with instructions. Costs to appellant.

Hawley & Reeves, for Appellant.

If the collection of a tax would lead to a multiplicity of suits or produce irreparable injury, or if the property be real estate, and the tax throws a cloud upon the title of the complainant, a court of equity will interfere by injunction and prevent the collector from enforcing the collection of the tax. (Dows v. City of Chicago, 11 Wall. 110; Society v. Austin, 46 Cal. 488; High on Injunctions sec. 500.)

S. C Winters, for Respondent.

No brief filed by respondent.

HUSTON, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

HUSTON, J.

This action was brought by the plaintiff to enjoin the defendant, who is the assessor and tax collector of Bingham county, from collecting a school tax assessed on certain real estate of plaintiff by the board of trustees of school district No. 15 of said county.

The ownership and description of the real estate is set forth in the complaint, as are, also, the facts constituting the claimed illegality of the levy and assessment, and the complaint further alleges that such tax constitutes a cloud upon the title to said real estate of plaintiff, etc. A general demurrer was filed to the complaint, which, after argument, was overruled by the court, the court holding that the complaint stated facts sufficient to warrant the relief prayed for. This ruling was correct, we think.

From this point the case seems to have been heard and determined by "H. W. Smith, pro tem. Judge," as he is styled. The case was heard before said pro tem. judge without a jury. After hearing the proofs and the argument of counsel, the said judge pro tem. rendered his findings of fact, wherein nearly, if not all, the facts are found as set forth in the complaint. The court then finds as conclusion of law "that plaintiff is not entitled to the relief prayed for, or to any relief, in this action; that defendant is entitled to judgment for his costs"--and judgment was thereupon rendered for the defendant and against plaintiff for costs, and from this judgment appeal is taken. His honor, the judge pro tem., also files an opinion, which appears in the record, and from which we learn the grounds upon which he based his conclusions of law and judgment; and it seems he reverses the decision made by the district court upon the demurrer, in holding that an injunction will not lie to restrain the collection of an illegal tax, where it is alleged that such tax creates a cloud upon title. This question has been so long settled that it does not require the citation of authorities to show the error of the conclusion to which the learned judge pro tem. arrived. (1 High on Injunctions, sec. 524, and cases cited in note.) "Where, by statute, a tax deed is made prima facie evidence of regularity [as in this state] of all proceedings incident to the assessment and sale, if the tax has been imposed contrary to law, such a cloud upon the title will result as to warrant the interference of equity." (1 High on Injunctions, sec. 525, and cases cited in note 3.) As to the illegality of the tax, the findings of fact of the judge pro tem. are quite full, and serve to present us with all the facts essential to be considered in passing upon the question of the legality of the tax, the collection of which is sought to be enjoined.

Subdivision 7 of section 667 of the Revised Statutes of Idaho provides as follows: "They [the trustees] may, by giving ten days' notice in writing, posted in three conspicuous places in their district, call, at any time prior to the second Monday of September, an election of the legal voters of their district, for the purpose of deciding whether or not a special tax, specifying the rate proposed to be collected, which must not exceed ten mills on the dollar of the taxable property, be levied on said district for the building or repairing of schoolhouses or for the support of public schools in the district; and they may appoint two judges and a clerk of said election. The voting at each election must be by ballot, on which ballot must be written or printed 'Tax, yes,' or 'Tax, no'; and none but actual freeholders or heads of families of said district are entitled to vote at such election," etc. The notice of the meeting, as the same appears in the record, is as follows:

"Notice.

"There will be a school meeting held in the district school-house in the 15th district on May 17, 1890, at 12 o'clock sharp, to take into consideration the voting of a tax of ten mills.

"W. H. DYE,

"Clerk of the Board of Trustees.

"N. W. McMILLAN."

The court then finds that "on the seventeenth day of May, at about fifteen minutes before 12...