Brown v. Shupe

• Decision Date: 17 March 1924
• Citation: 233 P. 59,40 Idaho 252
• Parties: HELEN G. BROWN, Respondent, v. W. A. SHUPE, OSCAR BAUM, L. A. WHITTEL, J. JESTER, Jr. and FRED L. EVANS, Appellants
• Court: Idaho Supreme Court

233 P. 59

40 Idaho 252

HELEN G. BROWN, Respondent, v. W. A. SHUPE, OSCAR BAUM, L. A. WHITTEL, J. JESTER, Jr. and FRED L. EVANS, Appellants

Supreme Court of Idaho

March 17, 1924

INJUNCTION-PLAIN SPEEDY AND ADEQUATE REMEDY AT LAW-IRRIGATION DISTRICTS - ASSESSMENT OF BENEFITS - BOARD OF CORRECTION-WAIVER.

1. Where an irrigation district assesses and levies assessments for maintenance and operation in accordance with the provisions of C. S., sec. 4384, an interested party feeling himself aggrieved thereby must appear before the board of correction provided for by C. S., sec. 4386, and present his objections, otherwise he will be deemed to have waived them.

2. A person feeling himself aggrieved by the action of the board of directors of an irrigation district in assessing benefits for maintenance and operation cannot maintain a suit in equity to enjoin the collection of any portion of the tax resulting therefrom, unless he first seeks redress at the hands of the board of correction as provided by statute.

3. Where a plain, speedy and adequate remedy at law exists equitable relief will not be granted.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. B. S. Varian, Judge.

Action to enjoin collection of irrigation district assessments. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellants.

J. M Thompson and W. C. Bicknell, for Appellants.

Equity will not grant relief where a plain and adequate remedy at law exists. (173 F. 200.)

It does not appear from the complaint that plaintiff has applied to the proper authority for relief before bringing this action. (Cosgrove v. City of Chicago, 235 Ill. 358, 85 N.E. 599; George C. Bagley Elevator Co. v. Butler, 24 S.D. 429, 123 N.W. 866; Williams v. Garfield Exch. Bk. of Enid, 38 Okla. 539, 134 P. 863.)

The action of the board of directors in assessing benefits is final and cannot be inquired into except for fraud. (Colburn v. Wilson, 24 Idaho 94, 132 P. 579; Shattuck v. Smith, 6 N.D. 56, 69 N.W. 5.)

H. A. Griffiths and Frank E. Meek, for Respondent, cite no authorities on points decided.

BUDGE, J. McCarthy, C. J., and Wm. E. Lee, J., concur. WILLIAM A. LEE, J., Dissenting.

OPINION

BUDGE, J.

This action was brought to enjoin the collection of certain assessments levied upon property in Caldwell. From the record it appears that respondent is the owner of certain lots in the city of Caldwell and within and a part of the Pioneer Irrigation District, "and subject to taxes for the operation and maintenance of said Pioneer Irrigation District." Appellants are directors and officers of the Pioneer Irrigation District, which district, by ordinance and resolution duly and regularly passed and made by the city of Caldwell, was required to and did reconstruct one of its ditches flowing through that city by building a concrete ditch connected with the curb in front of the lots owned by respondent and other lots in that city. The expenses of the construction work were paid by the irrigation district out of its general maintenance fund. In August, 1920, in accordance with C. S., sec. 4384, an assessment list was prepared by the secretary of the district and the directors of the district thereupon apportioned the benefits received by the lands within the district growing out of the maintenance and operation of the works of the district and thereupon levied assessments upon all of the lands for the expenses of such maintenance, repair and operation. In assessing such benefits the board found that the lots adjacent to the cement curb ditch received as benefits on account of the construction thereof, sixty per cent of the cost thereof, and all other lands in the district were benefited forty per cent thereof, and the taxes upon the lots and land within the district were assessed upon that basis. Respondent thereupon, in her own behalf and in behalf of other owners of lots similarly situated, commenced this action to enjoin and restrain the officers of the district from proceeding to collect the assessments so made, and asked that the same be annulled and canceled. A demurrer to the complaint, filed by appellants, was overruled by the court and they thereupon filed their answer. Respondent filed a demurrer to the answer, which was sustained and upon appellants refusing to plead further, judgment was entered in accordance with the prayer of the complaint. From this judgment this appeal is prosecuted.

Appellants specify as error the action of the court in overruling the demurrer to the complaint, in sustaining the demurrer to the answer and in entering judgment as prayed for in the complaint.

Appellants first contend that respondent has a plain, speedy and adequate remedy at law and is not entitled to equitable relief. This contention is based upon the provisions of C. S., secs. 4384, 4385 and 4386.

C. S., sec. 4384, after prescribing the manner of preparing the assessment list and apportioning the benefits, provides:

". . . . Such assessment shall be carried out by the secretary . . . . and shall be subject to review by the board of correction, hereinafter provided for."

C. S., sec. 4385, relates to the giving of notice of meeting of the directors to sit as a board of correction.

C. S., sec. 4386, provides that:

"Upon the day specified in the notice required by the preceding section of the meeting, the board of directors, which is hereby constituted a board of correction for that purpose, shall meet and continue in session, from day to day, as long as may be necessary, not to exceed five days, exclusive of holidays, and may make such changes in said assessment book as may be necessary to make it conform to the facts. Assessments levied for maintenance as provided in section 4384 may be reviewed by the board of correction upon request of any person interested. Within five days after the close of said session the secretary of the board shall have the corrected assessment book complete."

It is nowhere alleged that respondent appeared before the board of correction or filed objections to the assessments levied. It is admitted in the complaint that the lots of respondent were "subject to taxes for the operation and maintenance of said Pioneer Irrigation District." It is also admitted that the cost of construction of the ditch was paid out of the maintenance fund of the district. The complaint also alleges: "That the property of this plaintiff and those on whose behalf this action is brought, is not especially benefited and has no interest in or use of or benefit from said concrete ditches other than the general benefits common to all other land owners of said Pioneer Irrigation District receiving water from the ditches of said Pioneer Irrigation District," thereby conceding that her land was benefited, at least to some extent, by the construction of the concrete ditch. It therefore follows that respondent's lots were subject, at least, to part of the assessment charged against them, which the district was entitled to collect. However, respondent did not appear before the board of correction nor tender any part of the amount assessed against her property, neither did she tender any part of that amount into court nor offer to pay it. The evident purpose of the legislature in providing a board of correction was to provide for a review of the assessment (C. S., sec. 4384), and to give an opportunity to persons interested feeling themselves aggrieved with reference to their assessment, to appear before the board and present their objections and give the board an opportunity to make any corrections that it might deem proper. The board of correction of an irrigation district is analogous to the board of equalization of a county so far as correcting assessments is concerned. A person failing to make such objections to assessments must be deemed to have waived them. In the case of Carroll v. Gerlach, 11 Okla. 151, 65 P. 844, 845, it is said:

"The rule is well settled that a person aggrieved by the wrongful assessment of his property cannot invoke the powers and jurisdiction of a court of equity to enjoin the collection of a tax resulting therefrom, unless he first seeks redress in the mode prescribed by the statute. Since the legislature has confided the power to abate taxes in the board of county commissioners in the first instance, the courts will refuse to enjoin the collection of an alleged illegal tax on the ground of double or erroneous assessment of the property for taxation until the taxpayer makes an application to abate the taxes before the county commissioners, a hearing is had thereon, and the relief denied. Desty, in his work on Taxation (volume 2, pp. 661, 662), lays down the following rule: 'Equity will not restrain the collection of a tax when there is a full and adequate remedy at law, even though fraud be alleged in the bill. . . . Where the mode is prescribed, and a tribunal established by law to provide against an illegal tax, complainant has a full and adequate remedy at law.' In Investment Co. v. Charlton (C. C.), 13 Sawy. 25, 32 F. 192, it was held that a person who is aggrieved by the wrongful action of an assessor in the valuation of his own or other's property for taxation cannot maintain a suit in equity to enjoin the collection of any portion of the tax resulting from such action, unless he first seeks redress at the hands of the county board of equalization, as provided by statute. In Campbell v Bashford, 2 Ariz. 344, 16 P. 269, in a suit to enjoin the collection of an alleged illegal tax, the complaint having failed to show that the plaintiff had applied to the board of supervisors for correction of the assessment under the provisions of the Compiled Laws of Arizona, it was held that the...