Greer v. Richards

• Decision Date: 03 September 1890
• Docket Number: Civil 274
• Parties: NAT. W. GREER (substituted for J. T. Lesueur), Treasurer and Ex-officio Tax Collector of the County of Apache, Plaintiff and Appellee, v. HUGO RICHARDS et al., Defendants and Appellants [*]
• Court: Arizona Supreme Court

32 P. 266

3 Ariz. 227

NAT. W. GREER (substituted for J. T. Lesueur), Treasurer and Ex-officio Tax Collector of the County of Apache, Plaintiff and Appellee, v. HUGO RICHARDS et al., Defendants and Appellants ^[*]

Civil No. 274

Supreme Court of Arizona

September 3, 1890

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright Judge.

Reversed.

Wm. G Hazledine, Solicitor, (E. M. Sanford, J. A. Williamson, of Counsel,) for Appellant.

The decisions of the supreme court of the United States are final and binding upon the territorial courts. The supreme court of the United States has held that counsel fees must not be allowed as part of the damages recoverable upon an injunction bond. Oelricks v. Spain, 15 Wall. 211. Whatever the holding may be in the various states of the Union, this decision of the supreme court settles the question for this territory.

The second proposition, that interest cannot be recovered, is also sound and fully sustained by the authorities. It will be conceded that interest can only be recovered on the strength of a contract to pay interest, or by statutory authority. That there was no contract is apparent from the complaint that there was no statutory authority is evidenced by the law. Desty on Taxation says that taxes are not debts but obligations created by legislative authority, to which the personal consent or individual assent of the party charged is not required. They are not debts so as to be a proper subject of set-off, and cannot, as a general rule, be recovered in a common-law action as a debt. They do not bear interest, except when expressly so provided for by statute, and are not assignable. See Desty on Taxation, p. 9.

A tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract and does not establish the relation of debtor and creditor between the taxpayer and the state. See Perry v. Washburn, 20 Cal. 318; Ormsby v. Louisville, 79 Ky. 202; Louisville etc. R. R. Co. v. Hopkins, 87 Ky. 605, 9 S.W. 497; Homer v. Kirkwood, 25 Miss. 95; State v. Winona and St. Paul Land Co., 39 Minn. 380, 40 N.W. 166.

Baldwin & Johnson, for Appellee.

Kibbey, J.

OPINION

KIBBEY, J.

--On the fifth day of February, 1886, the Atlantic and Pacific Railroad Company, upon proper complaint, obtained in the district court for the third district a temporary injunction restraining the treasurer of Apache County from selling certain lands and the improvements thereon, and the culverts, bridges, grading, rock and earth cuts and fills, etc., property of the said railroad company then advertised by said treasurer for sale for the payment of taxes assessed and levied against said railroad company. On said day said railroad company caused to be executed a bond, with Hugo Richards and Edwards Wells, the appellants herein, as sureties, in the sum of $ 9,732, conditioned for the payment to said treasurer of such damages as he might sustain by reason of said injunction, if the court should finally decide that said railroad company was not entitled thereto. On the ninth day of June, 1887, a motion to dissolve the temporary injunction was denied. On the 10th of November, 1887, after a trial upon the merits, the injunction was dissolved, and the complaint dismissed. The railroad company thereafter appealed from that judgment to this court, and the appeal was there, by the appellant, dismissed. See Railroad Co. v. Lesueur, 2 Ariz. 428, 19 P. 157. This action is for the recovery on the injunction bond of the damages sustained by said treasurer by reason of the injunction. Appellee alleged in his complaint that by reason of the injunction he was prevented from collecting taxes amounting to $ 9,171.44, and penalty and costs amounting to $ 560, from the ninth day of February, 1886, until the twenty-sixth day of January, 1888, and that his damages occasioned thereby are $ 1,863, interest on said taxes and penalties, and the further sum of $ 1,680, expended as attorneys' fees in obtaining the dissolution of said injunction, and $ 400 expended in procuring the attendance and testimony of witnesses in and about the obtaining of the dissolution of the injunction. The appellants demurred to the complaint,--1. Because appellee was not entitled to recover attorneys' fees as a part of his damages; and 2. That the appellee was not entitled to recover interest on taxes, penalties, and costs. The demurrer was overruled. There was a trial, and judgment for appellee for the sum of $ 209.89 and costs of suit, from which this appeal is taken. The overruling of the demurrer and the admission of certain evidence at the trial are assigned as errors.

As the error in admitting evidence, if error it was, was good ground for a new trial, and it not appearing from the record before us that any motion for a new trial was made in the court below, for that or any other cause, that alleged error is not before us for consideration. Putnam v. Putnam, 3 Ariz. 182, 24 P. 320.

The only question properly presented for our consideration is the correctness of the ruling of the court upon the demurrer to the complaint. The statute upon the subject of injunctions in force at the time the bond in suit was executed, was copied from the statute of California. Comp. Laws Ariz. 1877, secs. 2547-2555; Code Cal. (Hittell), secs. 10525-10533. It is by that statute prescribed that the undertaking shall be conditioned "to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled" to the injunction. Substantially similar provisions are found in the statutes of nearly all the states and territories. It is conceded by appellants that it is held by the courts in a very large number of states that counsel fees may be allowed in suits upon injunctions under statutes similar to our own; but they contend that we are bound by the decisions of the supreme court of the United States, and cite Oelrichs v. Spain, 15 Wall. 211, where that court denies the right to recover counsel fees as part of the damages in such a suit. We do not entertain any doubt but that, had the statute provided that attorneys' fees incurred by the defendant in procuring the dissolution of a temporary injunction should be an element of damage recoverable in a suit on the bond, such provision would have been valid. But the statute has failed to do so, and we are left to determine the question by reference to the analogies of the law and a consideration of sound public policy; and in this, inasmuch as this court has never passed upon the question, we are to be guided largely by the declarations of other courts. As we have said, the preponderance of authority in the state courts is that counsel fees are recoverable in a suit upon an injunction bond in a case like this. But the weight we may attach to the decisions of different courts as authority depends to a considerable degree upon the relation in which we stand to these courts. By virtue of the provision in the constitution of the United States that Congress may make needful rules and regulations respecting the territory of the United States, (Const., art. 4, sec. 3, subd. 2,) or that that power is incident to the right to acquire territory, Congress has undertaken to provide for the government of the territories (Insurance Co. v. Canter, 1 Peters 511; Clinton v. Englebrecht, 13 Wall. 434 at 434-447; Nelson v. United States, 30 F. 112). The theory upon which the governments of the various territories have been organized has been to leave to the inhabitants all powers of self-government consistent with the supremacy of national authority, and within the limits prescribed by the organic acts. Clinton v. Englebrecht, 13 Wall. 434. By the organic act of Arizona the legislative power extends to all rightful subjects of legislation not inconsistent with the laws and constitution of the United States. Rev. Stats. U.S. sec. 1851. It is provided that the supreme court of the territory shall consist of the chief justice and two associate justices, to be nominated by the President; that the territory shall be divided into three districts, and a district court shall be held in each district by one of the supreme judges. By section 1908 the judicial power in Arizona is vested in a supreme court and such inferior courts as the legislative council may by law prescribe. These courts are in no sense United States courts, although there is vested in the district courts of the territories the exercise, in all cases arising under the constitution and laws of the United States, of the same jurisdiction as is vested in the circuit courts of the United States. Clinton v. Englebrecht, 13 Wall. 434-447; Good v. Martin, 95 U.S. 90; Reynolds v. United States, 98 U.S. 145; Ex parte Harding, 120 U.S. 782,...