Chicago & N.W. Ry. Co. v. Rolfson

• Decision Date: 26 June 1909
• Citation: 122 N.W. 343,23 S.D. 405
• Parties: CHICAGO & N.W. RY. CO. v. ROLFSON, TREASURER, ET AL.
• Court: South Dakota Supreme Court

122 N.W. 343

23 S.D. 405

CHICAGO & N.W. RY. CO. v. ROLFSON, TREASURER, ET AL.

Supreme Court of South Dakota

June 26, 1909

Appeal from Circuit Court, Kingsbury County.

Action by the Chicago & Northwestern Railway Company against J. H Rolfson, as Treasurer, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

R. W Stewart and A. W. Burtt, for appellant.

C. P Warren, for respondents

McCOY J.

The plaintiff claims that in October, 1905, two written notices and demands for payment of personal property taxes were caused to be issued by defendant Peterman, as sheriff of Kingsbury county, one of which notices and demands required that plaintiff pay the sum of $469.45, tax, $4.69, penalty and interest, $19.96, expenses, total $494.10, for personal property taxes charged against plaintiff in De Smet township for the year 1904, and which other notice and demand required plaintiff to pay $95.44, tax, $7.64, penalty and interest, $5.12, expenses, total, $108.20, charged against plaintiff in De Smet township, for road taxes for the year 1904, and both which notices and demands recited: "This sum I will collect forthwith as provided by chapter 48, Laws of 1901, and unless you pay said taxes before I call it will be necessary for me to charge you mileage, expense of levy and keeping and other expenses, which fees must be turned into the county treasury. You will save trouble and expense by paying at once. This notice is sent to give you an opportunity to avoid costs, as the law directs me to levy on your property"--and both of which notices were signed by W. E. Peterman, sheriff of Kingsbury county. The plaintiff further claims that the said tax of $469.45 was the second installment of a personal property tax of $938.91, charged against plaintiff in said De Smet township, and that plaintiff duly paid the first installment thereof, and that in September, 1905, plaintiff offered and tendered to defendant Rolfson as treasurer, the second installment of $469.45, but that said Rolfson refused to receive and accept the same, for the alleged reason that there was a further tax of $95.44, charged against plaintiff for a road tax in said township, but which road tax plaintiff claims is illegal and void in not having been authorized by the township electors, as provided by law, and that said road tax was never legally levied or assessed by the board of supervisors of said township. The plaintiff commenced this action in circuit court to restrain the collection of the said taxes mentioned and referred to in the said notices and demands, and in its complaint, in substance, alleged the foregoing statement of facts. Defendants answered, admitting the service of said notices and demands for payment, and admitted that plaintiff had offered and tendered said $469.45, and that defendant Rolfson refused to receive and accept the same, for the alleged reason that there was charged against plaintiff the further sum of $95.44, road tax. Defendants denied the illegality of said road tax, and alleged that the same had been duly authorized by the township electors, and that said road tax had been duly and legally levied and assessed. There was trial by the court, without jury, on the issues thus presented, and findings and judgment in favor of defendants.

At the outset we are met with the proposition that the remedy of injunction will not lie to restrain the collection of a personal property tax under the circumstances of this case. The respondents contend that injunction should not lie because plaintiff had adequate remedy at law, and should not be permitted to resort to the equity side of the court. It is the contention that plaintiff should have first paid said tax under protest, and then brought action to recover back the portion alleged to have been illegal or irregularly charged against plaintiff; that plaintiff might have waited until its property had been seized for such tax, and then maintained an action for...