Hanson County v. Gray

• Decision Date: 02 September 1899
• Citation: Hanson County v. Gray, 12 S.D. 124, 80 N.W. 175, 76 AmStRep 591 (S.D. 1899)
• Parties: HANSON COUNTY, Plaintiff and appellant, v. I.J. GRAY, Defendant and respondent.
• Court: South Dakota Supreme Court

12 S.D. 124

80 N.W. 175

HANSON COUNTY, Plaintiff and appellant,

v.

I.J. GRAY, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Hanson County, SD Hon. E. G. Smith, Judge Affirmed P. A. Zollman Attorneys for appellant. Gamble & Dillon Attorneys for respondent. Opinion filed September 2, 1899

HANEY, J.

This appeal is from an order sustaining a demurrer to the complaint. It appears upon the face of the complaint that the plaintiff is one of the organized counties of this state; that in 1888 certain personal property, then owned by defendant and situate within the plaintiff county, where defendant then resided, was duly assessed, and certain taxes for territorial, county, and other purposes were duly levied thereon, which have not been paid; that, before the taxes so levied became due, defendant disposed of and removed from the territory all of the personal property thus assessed; that he has when such taxes became due and delinquent, defendant owned no real property to which the lien of such taxes could attach.

Since prior to the levy of these taxes, the statutes of this state have provided for the collection of taxes on personal property by distress and sale, and have not at any time, so far as we are aware, authorized the collection of such taxes by action. Comp. Laws, § 1609-1618, inclusive. The special method thus provided is plain, speedy, and adequate. There may be decisions which announce a different doctrine, but the overwhelming weight of authority sustains the view that a tax is not a “debt,” in the ordinary sense of that word; that, when the statute prescribes no special manner for its collection, it may be collected by an action at law, but. when an adequate method is provided by statute, an action for its collection cannot be maintained. Gatling v. Commissioners, 92 NC 536; Board of Com'rs. v. First Nat. Bank (Kan. Sup.) 30 Pac. 22; Water-Supply Co. v Bell (Colo. Sup.) 36 Pac. 1102; City of Camden v. Allen, 26 NJ Law, 398; City of Detroit v. Jepp, 52 Mich. 458, 18 NW 217; Hibbard v. Clark, 56 NH 155; Richards v. Com'rs., 40 Neb. 45, 58 NW 594; Louisville Water Co. v. Corn., 89 Ky. 244, 12 SW 300; State v. Piazza, 66 Miss. 426, 6 So. 316.

Appellant cites the following cases in support of its contention that the special statutory method is not exclusive: McLean v. Myers, 134 NY 480, 32 N E. 63; People v. Seymour, 16 Cal. 332; City of Davenport v. Chicago, R. I. & P. R. Co. 38 Iowa, 633; City of Dubuque v. Illinois Cent. R. Co. 39 Iowa, 56; City of Burlington v. Burlington & M. H. R. Co. 41 Iowa, 134, and Dollar Sav. Bank v. U.S., 19 Wall. 227. McLean v. Myers does not sustain the contention, because the New York statute under discussion in that case, as shown by the opinion, expressly provides that the tax “may be recovered with interest and costs, by the receiver of taxes of said city in an action in any court of record in this state,” 134 NY 484, 32 NE 63. People v. Seymour is not in point. In that case the court construed and considered the constitutionality of a statute expressly authorizing the collection of taxes by action. Undoubtedly, the legislature has power to authorize the collection of taxes by action, in addition to any special method, but it has not exercised such power in this state. In City of Davenport v. Chicago, R. I. & P. R. Co. the question was not properly before the court, and it expressly refrained from intimating any opinion thereon. Careful examination of the other Iowa cases cited show that only two of the four judges then...