Farrington v. New England Inv. Co.

• Decision Date: 01 April 1890
• Citation: 1 N.D. 102,45 N.W. 191
• Parties: Farrington v. New England Investment Co. et al.
• Court: North Dakota Supreme Court

1 N.D. 102

45 N.W. 191

Farrington

v.New England Investment Co. et al.

Supreme Court of North Dakota.

April 1, 1890.

Syllabus by the Court.

1. In an action in equity brought to cancel certain tax certificates and annul tax proceedings, held, that a county assessment made by the proper assessor, in the proper time and manner, on the proper blank forms for listing and assessing property, but not copied into the assessment roll until after such assessor had resigned, was not void in equity when it appears that said assessment was in fact copied accurately into the assessment roll, and there is no showing that said assessment was in any manner unfair or inequitable. Held, further, that the absence of any verification of such assessment roll did not invalidate the assessment in equity.

2. Presumptions are in favor of the legality of tax proceedings; and a levy properly made will, in equity, be held void only when it clearly appears that such levy was for purposes not authorized by law. The duties of an assessor in fixing values upon property are judicial in their nature, and cannot be performed by deputy, in the absence of an express statute. The city assessor of a city organized under chapter 24 of the Political Code of Dakota Territory has no authority to appoint a deputy; and an assessment of the property of such city by a pretended deputy-assessor, which was never in any manner adopted or ratified by the city assessor, is a nullity, and no tax can be predicated thereon.

3. Courts of equity should, in general, interfere to restrain the collection of a tax, or annul tax proceedings, only where it appears either that the property sought to be taxed is exempt from taxation, or that the tax itself is not warranted by law, or the persons assuming to assess and levy the same are without authority so to do, or where the proper taxing officials have acted fraudulently; and, in addition, plaintiff must bring himself within some recognized head of equity jurisdiction; and, in the absence of statutory provisions regulating the subject, as a condition to relief in equity, the applicant must pay or tender the amount of taxes properly chargeable against his property.

4. Held, further, that such action, in this state, comes within the provisions of section 1643 of the Compiled Laws, and that, instead of requiring the payment of the legal charges as a condition precedent to relief in equity, it becomes the duty of the trial court to enter judgment against the applicant for the amount of such legal taxes.

Appeal from district court, Ramsey county; William B. McConnell, Judge.

Action in equity to set aside and cancel certificates of tax-sale to certain lots in Devil's Lake, in Ramsey county, and to declare the tax upon which said sales were made, and all the proceedings leading up to said sale, null and void. The plaintiff had a decree for the full relief prayed in the lower court, and defendants appeal. This case was once argued in the supreme court of Dakota territory, and a decision rendered. A judgment of affirmance was reached, but no opinion filed. Subsequently, on petition of appellant, a rehearing was ordered by that court; and the case has again been fully argued and submitted to this court.

Wallin, J., dissents.J. F. McGee and D. E. Morgan, for appellants. W. E. Dodge, for respondent.

BARTHOLOMEW, J., ( after stating the facts as above.)

In 1885 the plaintiff, John Farrington, as trustee for the St. Paul, Minneapolis & Manitoba Railway Company, owned a large number of town lots in the city of Devil's Lake, in Ramsey county. At the regular tax-sale in the year 1886, said lots were sold for the delinquent taxes of 1885, as the same appeared on the books of the treasurer of said county. The sale was made by one John W. Maher, who, as treasurer of Ramsey county, was the predecessor in office of the defendant Ole Serumgard. The lots were purchased by, and the certificates of sale issued by, said Maher, to the defendant the New England Investment Company. It is to declare said tax void, and to cancel said certificates, that this action is brought. The lots were sold for both county and city taxes; both taxes being included in one certificate.

The complaint, after the formal allegations as to parties plaintiff and defendant, and a descripton of the property affected, alleges: “That in the year 1885 the officers of said county of Ramsey, and the officers of the said city of Devil's Lake, a municipal corporation situated in said county, which officers were authorized by the laws of this territory to assess property therein for the purposes of taxation, and to levy taxes thereon, pretended to assess all the said parcels of land for the purposes of taxation, and pretended to levy certain taxes thereon, to-wit, territorial, county, city, and other taxes, for that year, amounting in the aggregate to the sum of $1,530.97;” that all of the taxes so assessed against said lands in the year 1885 were null and void, and of no force, for the following reasons: That the board of county commissioners of said county of Ramsey did not, on the first Monday of September, 1885, meet and levy the taxes for the current fiscal year in manner and form as provided by section 35, chapter 28, of the Political Code, nor otherwise, and that in the pretended assessment of taxes was illegally included a pretended road and bridge tax of one mill on the dollar; that the city of Devil's Lake is organized under chapter 24 of the Political Code, and that in said pretended assessment there was a pretended tax levied of seven mills on the dollar claimed to have been levied by the trustees of the city of Devil's Lake for municipal purposes, and claimed to have been certified to the county treasurer as delinquent, and that this tax is wholly illegal and void for the following reasons: The board of trustees of said city did not determine and levy the amount of general tax for the year 1885 in manner and form as required by section 30, chapter 24, of the Political Code, or otherwise; that said board did not prescribe rules and regulations for the assessment of property as prescribed by section 31 of said chapter, or otherwise; that the assessor for the city of Devil's Lake did not assess said property under the rules and regulations prescribed by the board of trustees of said city, or otherwise, nor did he make return of any assessment roll to said board during said year, as required by said section 31, nor otherwise; that the trustees of said city did not deliver a tax duplicate to the collector of said Ramsey county as provided in section 36 of said chapter, or otherwise, nor did they in any manner delegate to said county collector any authority whatsoever for the collection of said pretended delinquent taxes by sale of real estate or otherwise; that the county assessor of Ramsey county did not personally inspect or examine any of said parcels of land for the purpose of ascertaining the actual character or value of the land, but set the same down in the assessment roll, in an arbitrary manner, without regard to value, and thereby plaintiff's lots were unfairly and unjustly assessed at a much higher valuation than other lands of the same value in the same locality; that the assessor did not take and subscribe an oath, and annex it to said assessment roll, as provided by section 12, c. 28, Pol. Code, nor did he subscribe and annex to said roll any oath whatever; that the county clerk failed to make and carry out the lists as provided by section 37 of said chapter, or to deliver any duplicate list to the treasurer as prescribed by section 38 of said chapter, or substantially as so required; that the county commissioners did not attach to said list their warrant, under their hands and official seals, as provided by section 40 of said chapter, or substantially so; that the treasurer did not publish the tax-sale notice for three consecutive weeks, beginning the first week in September, and did not post such notice upon the courthouse door or elsewhere as provided by law. And stating, further, that the lands were sold at the tax-sale in 1886 for said pretended taxes, and that unless such sale, and the certificates issued thereon, were canceled and annulled, said Serumgard would issue deeds to said lands, and thereby cast a cloud upon plaintiff's title, and greatly impair the value of the land, and numerous suits concerning the title to said lands will necessarily follow. And relief was prayed accordingly, and an injunction issued. The answer admits the corporate and official capacity of the parties, admits the assessment and levy of the taxes and the sale of the lands, but denies all allegations of omissions and irregularities on the part of the taxing officers and boards. There is a stipulation in the case that the pleadings are to be considered as amended to correspond with the proofs. No amendments were ever, in fact, made under the stipulation; and we must not be expected in another case to give effect to such a stipulation, as the precise issues in a case should be presented to this court in some form other than by way of evidence.

The trial court made 19 findings of fact, nearly all of which are excepted to by defendants as not being supported by the testimony. We will give them, in substance: The first finds the title of the lands to be in plaintiff. The second finds that the defendant Serumgard sold the lands at the annual tax-sale in October, 1886, for alleged delinquent taxes of 1885, to the defendant the New England Investment Company, and that the charge for which said lands were then sold included an alleged tax of 14.4 mills levied by the county commissioners, and an alleged tax of 7 mills claimed to have been levied by the trustees of the city of Devil's Lake, with the penalties and interest. There is an evident mistake as to Serumgard. The lands were sold by Maher. Serumgard did not become treasurer of Ramsey county until Janaury, 18...