Henderson v. Hughes County
| Decision Date | 29 August 1900 |
| Citation | 83 N.W. 682,13 S.D. 576 |
| Parties | SARAH C. HENDERSON, Plaintiff and appellant, v. HUGHES COUNTY et al., City of Pierre, and F. L. Fuller, Treasurer of Hughes County, Defendants and respondents. |
| Court | South Dakota Supreme Court |
HUGHES COUNTY et al., City of Pierre, and F. L. Fuller, Treasurer of Hughes County, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. Loring E. Gaffy, Judge Affirmed Dillon & Sutherland Attorneys for appellant. John A. Holmes Attorneys for respondents. Opinion filed August 29, 1900
The plaintiff, who owned a two-thirds interest in certain real property in the city of Pierre, brought this action for the purpose of having certain taxes thereon declared void, and the cloud caused thereby removed. The trial court decided that none of the allegations. of the complaint were established except such as were admitted by the answer, and concluded that the action should be dismissed upon its merits. An application for a new trial having been denied, the plaintiff appealed.
The decision below is clearly sufficient to support the judgment. Only one error at law occurring at the trial is assigned; hence, with that exception, the only inquiry is whether the complaint contains any material controverted facts which were established by a clear preponderance of the evidence. Reagan v. McKibben,(1898); Randall v. Burk Tp.,(1893). The first six paragraphs of the complaint are admitted. Divested of repetitions and conclusions, the remaining portions of that pleading contain the following issuable facts: (8) That the city made a levy of 15 mills for general purposes, 5 mills for interest and sinking fund, and 10 mills for school purposes in 1890; that such levy was not based upon any estimates of any character whatever; and that the city council did not make any appropriations of the levy, nor pass any ordinance as to such levy, tax, or appropriation. (9) That the county, in 1890, made a levy of 1.5 mills for sinking fund or bonds, and that all county bonds then outstanding were without consideration and void. (10) That the county auditor delivered a duplicate of the 1890 taxes to the county treasurer on December 15th of that year. (11) That the city council attempted to make an appropriation without an ordinance long after the levy was made in 1890; and that the tax of that year was not uniform on all property within the city limits, as the city exempted personal and real property from taxation. (12) That the county treasurer did on the day of November, 1891, pretend to sell plaintiff’s property to one Eva Palmer, but did not deliver to said Palmer any written memorandum, nor did said Palmer pay any sum to the treasurer, and the treasurer afterwards entered on his duplicate that the sale was canceled for want of payment. (13) That on September 7, 1891, the city pretended to make a levy of 12 mills for the ensuing year and 6.5 mills for school purposes; that such levy did not specify for what the same was levied; that it was not based upon any estimate furnished by the auditor or council; and that the council did not make any appropriation of funds whatever, nor did it pass any ordinance appropriating funds, nor any ordinance levying the tax. (14) That in 1891 the county made a levy of 3.2 mills for bond or sinking fund, (15) That the said pretended levy of the said city and said county were each a fraud upon this plaintiff and all other tax payers of said county and city; that the value of the said property of this plaintiff at the time same should have been assessed was not to exceed the sum of $12,000, when said city and county pretended to tax said property at the valuation of $22,500; that in furtherance of the design to defraud this plaintiff said city did not make the levy required by law, but pretended to make a levy about 500 per cent, more than was legally required to pay the running expenses of the city, in order that it could make donations that were prohibited by law; that said city intended to pay out of said pretended assessment illegal and void charges such as are prohibited by the constitution and laws of this state, such as $1,500 for pontoon bridge, $20,000 for the state capitol building, for band $1,000, and for divers other illegal items, including interest on bonds in excess of the constitutional limit. (16) That the county auditor, with full knowledge of the aforesaid illegality of the city and county levy, extended this void assessment and levy, and delivered his duplicate to the county treasurer on December 20. 1891. (17) That about December 21, 1891, the city council pretended to pass an appropriation for said year as follows: Interest, $20,929; sinking fund, $5,000; improvements of streets and alleys and pontoon bridge, $1,500; salaries, $4,000; light and waterworks, $9,461; and contingent expenses, $1,200; that these appropriations were made without any ordinance, and that the city had no interest, pontoon, bonds, sinking fund, improvement, light, or water works to pay. (22) That the county treasurer, on November 10, 1892, pretending that the sum of $1,641,56 was due as taxes upon plaintiff’s property, offered the same for sale, but no one would bid, when he announced that the same was sold to the county for the amount due; that the county claims to hold the property by virtue of the aforesaid proceedings; that the treasurer did not make any certificate or memorandum in writing at the time of this pretended sale; that he acted as auctioneer, and, without any bid from anyone; announced “the county;” that no entry was made as to the terms or purchaser; that the county has never paid any amount whatever, nor has the treasurer ever delivered to the county any certificate, nor has he demanded of the county the amount claimed to be due from the plaintiff for the taxes, or any amount whatever, (23) That during the years 1892 and 1893 the city caused to be returned to the county auditor a pretended list, wherein it was made to appear that plaintiff’s property was assessed at the sum of $15,100 for 1892 and the sum of $13,680 for 1893, when in fact the value of the property did not exceed in either of those years the sum of $6,000; that in 1892 the city made a levy upon this fictitious value of 17 mills for general city purposes, interest on indebtedness and sinking fund, and 6 mills for school purposes; that in 1893 the city made a levy upon this inflated value of 17 mills for general city purposes and 9 mills for school purposes; that these levies did not specify for what they were levied; that they were not based upon any estimate furnished by the auditor or council nor did the city pass any ordinance making any levy or appropriating any funds during either of those years. (25) That the said pretended levies of the city of Pierre and said county where each a fraud upon the plaintiff and all other property owners of said city; that the said plaintiff’s property should not have been placed upon the assessment book at a greater value than $5,000, but said county and city pretended to tax said property as of a value of $13,680, and in furtherance, of the design to defraud this plaintiff the said city did pretend to make a levy each of said years of 25 mills on each dollar of said fraudulent valuation, when in fact there was only required, to meet all the legal requirements of said city and its obligations, not to exceed 10 mills, which amount would have covered all of its legal obligations and running expenses of every description whatsoever; that said levy was made by said city to raise money to make unlawful donations to band, pontoon bridge, pay unlawful and illegal warrants, bonds, interest, rents, and debts of private corporations, and many other items too numerous to mention; and said county made said levy to pay interest on bonds where there never was any consideration for the bonds, and where said county is not under any legal obligation to pay, nor has any right to pay. (26) That the county auditor delivered his duplicate in the years 1892 and and 1893 to the county treasurer on the 5th day of December in each of those years. (27) That on or about April 3, 1893, the council passed appropriations for 1892 as follows: Interest on bonds, $21,000; for other purposes, $19,027; that on or about December 24, 1893, the council passed appropriations for the year 1893 as follows: Interest, $19,706; salaries, expenses, fire hydrants, and lighting streets, $22,493; that neither of these appropriations was by ordinance; that the city had no interest, salaries, expenses fire hydrants or lights to pay to exceed the sum of $2,000. (28) That plaintiff’s property was offered for sale for the taxes of 1892, and bid in by the county in substantially the same manner as is alleged in paragraph 22, (301) That the county levied taxes in the years 1891, 1892, 1893 and 1894 for interest upon certain bonds which were issued without consideration, and which were void upon their face; that the county never at any time provided for any tax to pay the principal of said bonds. (31) That the county treasurer threatens to make deeds to the property to the county and city. (33) That the aforesaid taxes appear upon the tax duplicates of the county, and cast a cloud upon the plaintiff’s title.
We will now proceed to consider these controverted allegations in their order, As to paragraph 8, the evidence discloses that the city levy in 1890 was based upon an estimate made by the auditor, and we are unable to discover in what manner the failure to pass a general appropriation ordinance affected the validity of the levy. Such failure may have interfered with the right of the city to make contracts or expend money during the current fiscal year, but it did not affect the levy in any respect whatever. There is no more connection between the general appropriation ordinance required by the statute and the levy and collection of city taxes than there is between the levy of state taxes and legislative appropriations. Laws 1890, chap, 37 Art, 15, It is contended that the...
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