Graves v. Berry

• Decision Date: 01 June 1922
• Citation: 207 P. 718,35 Idaho 498
• Parties: L. A. GRAVES, Appellant, v. R. C. BERRY et al., Respondents
• Court: Idaho Supreme Court

207 P. 718

35 Idaho 498

L. A. GRAVES, Appellant, v. R. C. BERRY et al., Respondents

Supreme Court of Idaho

June 1, 1922

APPEAL AND ERROR-MOOT CASE-MUNICIPAL CORPORATION-TAXATION-PUBLICATION OF ESTIMATE OF EXPENSE AND APPROPRIATION BILL AS LIMITATION OF POWER OF TAXATION.

1. Where only a moot question remains to be determined, an appeal will be dismissed.

2. In order to justify a dismissal of an appeal on the ground that only a moot question remains, the fact that the controversy has ceased to exist must be shown by clear and convincing proof.

3. The court, in support of a motion to dismiss an appeal, will not indulge in presumptions to the effect that a cause of action has disappeared.

4. Upon appeal from an order denying an injunction pendente lite to prevent collection of a tax upon the ground that it was void because levied in excess of the power of the governing authorities of the municipal corporation, unless appellant has paid the tax in such a way that he has no further recourse, or the time for redemption has expired, the question has not become moot.

5. Preparation and publication of an estimate of the probable amount of money necessary to be raised for all purposes, and the passage of an appropriation bill by a municipal corporation organized under the general laws, are conditions precedent to the exercise of the power to levy municipal taxes under C. S., sec. 3940.

6. A plaintiff is not required to make a tender of any portion of a tax levy as a condition for invoking the power of a court of equity to relieve him therefrom when the tax levy is totally void.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County, Hon. James G. Gwinn, Judge.

Appeal from an order denying injunction to restrain collection of tax. Reversed.

Reversed and remanded. Costs awarded to appellant.

Wilkie & Wilkie, for Appellant.

Where the law requires an estimate or ordinance, or both, to be made and published before the time for levying the tax, the requirements are jurisdictional and must be complied with or the tax will be void. (37 Cyc. 971; sec. 2361, McQuillin Municipal Corp; People v. Florville, 207 Ill. 79, 69 N.E. 623; People v. McElroy, 248 Ill. 574, 94 N.E 81; Nelson v. Oklahoma City, etc. R. Co., 24 Okla 617, 104 P. 42; Police Jury v. Bouanchaud, 51 La. Ann. 860, 25 So. 653; Waggoner v. Maumus, 112 La. 229, 36 So. 332; Gilmore v. Hentig, 33 Kan. 156, 5 P. 781; Hentig v. Gilmore, 33 Kan. 234, 6 P. 304.)

"Taxes cannot be levied or collected at any other time or in any other manner nor for any other purpose than that designated by law." (Shoup v. Willis, 2 Idaho 120, 6 P. 124; Hewes v. Reis, 40 Cal. 255.)

Thos. B. Hargis, C. Redmond Moon and H. W. Soule, for Respondents.

The levy of a tax by a municipality, the preparation and publication of an estimate and the passage of an annual appropriation bill, are each a separate, distinct and independent requirement.

The purpose of the estimate and the annual appropriation bill is not to give the taxpayers notice of what rate of levy they may expect, but to divide any levy made into specific funds for specific purposes, to regulate the drawing of warrants, to aid the village treasurer in keeping the village accounts. (Henderson v. Hughes County, 13 S.D. 576, 83 N.W. 682; Standrod v. Case, 24 Idaho 365, 133 P. 651; Oregon R. Co. v. Umatilla County, 47 Ore. 198, 81 P. 352.)

A court of equity will not issue its writ of injunction simply because some formality or legal requirement in levying a tax is wanting, if it is levied for an authorized purpose and by the persons designated by law. (37 Cyc. 1258; 1 High on Injunctions, secs. 484, 486; State v. Johnson, 80 Ore. 107, 156 P. 579; French v. Edwards, 13 Wall. (80 U.S. 506, 20 L.Ed. 702; Sweet v. Boyd, 6 Okla. 699, 52 P. 939.)

RICE, C. J. DUNN and Lee, JJ., concur.

OPINION

RICE, C. J.

This action was brought to obtain a decree to the effect that a tax levy of the village of Ashton for the year 1919 is null and void, and to obtain an injunction restraining respondents and their agents from certifying or placing upon the tax-roll or collecting the tax.

The allegation of the invalidity of the tax is based upon the fact, admitted for the purposes of this case, that the village trustees did not during the first quarter of the fiscal year, or at any time, prepare or publish an estimate of the probable amount of money necessary for all purposes to be raised for the village as required by C. S., sec. 4055, and also that such trustees did not, within the first quarter of the fiscal year, or at any time, pass an ordinance termed "Annual Appropriation Bill" as required by C. S., sec. 4053, and that on account of the failure of the village trustees to make and publish such estimate of expense and pass such appropriation bill, the tax attempted to be levied is null and void.

Upon filing the complaint an order was issued to respondents to show cause why a temporary injunction should not issue. Respondents appeared and demurred to the complaint, and upon the hearing a temporary injunction was denied. The appeal is from this order.

Respondents have moved to dismiss the appeal upon the ground that the questions involved are moot, by reason of the fact that all the acts sought to be enjoined have been performed and any action the court might take would be unenforceable and the decision upon the questions involved would be only upon a mere abstract question of law.

In Abels v. Turner Trust Co., 31 Idaho 777, 176 P. 884, it is held that where only a moot question remains to be determined, the appeal will be dismissed. (Coburn v. Thornton, 30 Idaho 347, 164 P. 1012; Roberts v. Kartzke, 18 Idaho 552, 111 P. 1; Wilson v. Boise City, 7 Idaho 69, 60 P. 84; City of Wallace v. Deane, 8 Idaho 344, 69 P. 62.) In order to justify a dismissal on this ground, however, the fact that the controversy has ceased to exist must be shown by clear and convincing proof. (4 C. J., p. 577, sec. 2383.)

No affidavit was filed in support of the motion to dismiss. Upon the argument, however, it was not questioned but that the tax levy was placed upon the tax-roll and that most of the residents of the village have paid the same. The court, in support of a motion to dismiss an appeal, will not indulge in presumptions to the effect that a cause of action has disappeared. It does not appear that appellant in this case has paid the tax, or if so, that he did not pay it under protest. If appellant has not paid the tax, the time for redemption has not expired. Unless he has paid his tax in such a way that he has no further recourse, or the time for redemption has expired, the question has not become moot. United Real Estate & Trust Co. v. Barnes, 157 Cal. 515, 108 P. 306, is similar to the case at bar. Upon a motion to dismiss the appeal the court said: "The motion to dismiss is based upon the ground that the payment of the assessment, etc., put an end to the controversy and leaves only a moot case. It is not, however, by any means clear that it is a moot case, for evidently the claim of the plaintiff to recover the money paid under protest involves the same questions that are involved in this appeal. . . ." (See, also, Boise City etc. Land Co. v. Clark, 131 F. 415, 65 C. C. A. 399.)

The motion to dismiss is denied.

The legislature has provided a carefully prepared and fairly comprehensive scheme for municipal finance. By C. S., sec 3225, it is provided that prior to the commencement of the fiscal year, the county auditor shall certify to the governing authorities of every city, town and village the total assessed valuation of such municipality for the preceding year, for the purpose of aiding them in the determination of the tax rates to be levied for the current year. Within the first quarter of the fiscal year, the trustees of a village must prepare an estimate of the amount of money necessary for all purposes for the village during the fiscal year for which an appropriation is to be made, and cause the same to be published for four weeks in some newspaper of general circulation within the village. (C. S., sec. 4055.) Thereafter, and during the first quarter of the fiscal year, the board of trustees of the village shall pass an ordinance to be termed the "annual appropriation bill," in which they may appropriate such sums of money as are deemed necessary to defray all necessary expenses and liabilities of the corporation not exceeding in the aggregate the amount of tax authorized to be levied...