Duluth Elevator Co. v. White
| Citation | 90 N.W. 12,11 N.D. 534 |
| Decision Date | 23 April 1902 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Application of the Duluth Elevator Company for a writ of certiorari to Frank White and others, members of the board of equalization. Writ denied.
Writ denied.
Tracy R. Bangs, for plaintiff.
O. D Comstock, Atty. Gen., for defendants.
In this proceeding application was made in plaintiff's behalf to the Honorable N. C. Young, a judge of this court in vacation, to issue the writ of certiorari. The judge to whom the application was made denied the application to issue the writ without notice and a hearing, but plaintiff's counsel was given leave to make his application to the court upon notice of not less than 10 days given to the state auditor and the attorney general; whereupon, such notices having been given, the application to issue the writ came on to be heard before this court at a session which convened at Fargo on the 25th day of March, 1902, said counsel for both parties being present at the hearing.
The written motion for the writ is as follows: The grounds of the application are contained in an affidavit made by the general manager of the plaintiff, together with a copy of the record of the proceedings of the state board of equalization had at a session thereof which convened at the office of the state auditor on the 6th day of August, 1901.
It has become unnecessary, in the view taken of the case by this court, to detail the grounds of the application for the writ, as such grounds are set forth in the motion papers, further than to state that it appears that the plaintiff corporation is a taxpayer in this state, and that it owns and operates a number of grain elevators and warehouses, which are situated in various counties in this state; that the defendants collectively constitute the state board of equalization, and that said A. N. Carlblom is and was at said session the secretary of said board, and that the defendants were assembled and acted together as a board at said session thereof; that said Carlblom, as such secretary of the board, proceeded to certify the result of the action taken by said board at said session to the several county auditors of the state, and that the county auditors, pursuant to such certification, have severally extended the tax upon their tax duplicates in conformity with the action of the state board as embodied in the said certification of its secretary.
Said affidavit further sets out, in substance, that said state board, at its session in August, 1901, did not confine its action to a discharge of its statutory duties as a state board of equalization, but on the contrary, radically departed from its province and duty as a board of equalization, and proceeded unlawfully and in excess of its powers, and in manner and form as set out in the affidavit, to reassess and revalue the property of the state and increase the valuation of numerous classes of property, with which the board dealt separately and unlawfully, and that such reassessment and increase was made, not to produce uniformity of valuation as between counties, but was done as a means of enlarging the aggregate valuation of the property of the state as a basis of taxation; that said board of equalization, by its said action at said session in 1901, unlawfully raised the valuation of the property of the state for purposes of taxation to an amount exceeding $ 8,000,000 in excess of its proper aggregate value, as officially fixed by the several taxing officers and boards whose duty it is to officially value the property of the state for purposes of taxation; and that such unlawful action of the state board being certified to the several county auditors of the state, has had the result of unlawfully spreading upon the tax lists in all the counties of the state an unlawful tax, and that the said action of the state board resulted in an apparent tax upon said elevators and warehouses of the plaintiff, which tax is unlawful; and, upon the assumption that the action complained of was unlawful and without jurisdiction, the plaintiff asks that the writ of certiorari be issued to bring up the record of the action of the state board at its said session, with a view to the annulment of said alleged unlawful action which led up to the tax complained of. At the hearing before this court the entire matter was considered upon its merits, there being no substantial dispute as to any of the controlling facts of the case.
Something was said by counsel upon the oral argument as well as in their briefs as to the proper parties to a controversy such as this, the attorney general contending that the state should be made a party, while counsel for plaintiff insisted that the matter involved was simply a private controversy, in which a single taxpayer is endeavoring to resist and annul an unlawful tax assessed against its property. We fully agree with plaintiff's counsel as to this proposition. The controversy is not one in which the state, as such, is a party in interest. In this case the state can have no other or different interest than it has in any other case in which a taxpayer is seeking to defeat the unlawful action of taxing officers or boards and thus defeat an unlawful assessment upon his individual property. In such a controversy the statute in terms declares that the state need not be joined as a party plaintiff. Rev. Codes 1899, § 6096. In this case the plaintiff, as a result of this proceeding, asks only that the tax upon its property be canceled, and does not even assume or ask to champion the cause of any other taxpayer. We further agree with plaintiff's counsel that the manager of the plaintiff was, as plaintiff's representative, qualified to make the affidavit in behalf of the plaintiff, the party beneficially...
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