In re Appeal of Cunningham
| Decision Date | 20 December 1932 |
| Docket Number | 6062 |
| Citation | 245 N.W. 896,63 N.D. 62 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Richland County, McKenna J. From a judgment dismissing an appeal from an order of the Board of County Commissioners of Richland County denying his application for a refund of taxes paid under protest, J. P Cunningham appeals.
Reversed.
Maurice S. Aker and I. A. Acker, State Tax Commissioner, for appellant.
A cause of action is merged in the judgment. Upon entry of judgment the claim on which the judgment is based becomes changed in form and substance and its original character is extinguished. Olson v. Dahl, 99 Minn. 433, 109 N.W. 1001.
Special assessment warrants are only payable out of a special fund and the warrant holders must look to this special fund for payment therefor. Vallelly v. Park Comrs. 16 N.D. 25, 111 N.W. 615, 15 L.R.A.(N.S.) 61.
The party recovering a judgment in any common-law cause, in any circuit or district court shall be entitled to similar remedies upon the same by execution or otherwise, to reach the property of the judgment debtor, as now provided in like cause by the laws of the state in which such court is held. Street R.R. Co. v. Hart, 114 U.S. 654; Ex parte Boyd, 105 U.S. 647, 26 L. ed. 1200.
Arnold C. Forbes, for respondent.
Matthew W. Murphy, C. L. Young and Hugh H. Barber, amici curiae.
When it becomes necessary to enforce payment of the judgment by the issuance of mandamus to the municipal officers to levy and collect a tax, none of the citizens of the municipality can by instituting proceedings to prevent the levy or enforcement of the tax re-litigate any of the questions which were or could have been litigated in the original action or in the mandamus proceedings. 1 Freeman, Judgm. 1090, § 507.
Circuit courts are wholly independent of the state tribunals. Weber v. Lee County, 6 Wall. 210, 18 L. ed. 781; United States v. Keokuk, 6 Wall. 514, 18 L. ed. 933; The Mayor v. Lord, 9 Wall. 408; Hawley v. Fairbanks, 108 U.S. 543, 27 L. ed. 820; State ex rel. Wilson v. Rainey, 74 Mo. 229; McEntire v. Williamson, 63 Kan. 275, 65 P. 244; Clark v. Wolf, 29 Iowa 107, 63 Am. Dec. 627; Cannon v. Nelson, 83 Iowa 242, 48 N.W. 1033; Orcutt v. McGinley, 96 Neb. 619, 148 N.W. 586.
A judgment against a county or its legal representatives, in the matter of general interest to all its citizens, is binding upon the latter, though they are not parties to the suit. State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706; Holt County v. National L. Ins. Co. (C. C.A.) 80 F. 686.
A judgment creditor has all the rights which appertain to the obligation upon which judgment is rendered. Ralls County v. United States, 105 U.S. 733, 26 L. ed. 1220.
If judgment is recovered against a municipality which can only be paid by taxation, the levy of a tax to pay the same may be compelled. 4 Cooley, Taxn. § 1602, p. 3195; Coler v. Coppin, 19 N.D. 86, 85 N.W. 988; Phelps v. Lodge, 60 Kan. 122, 55 P. 840; Board of Commissioners v. Schradsky, 43 Colo. 84, 95 P. 312.
The payment of a judgment recovered on a tort claim cannot be voided by setting up any tax limitation. 6 McQuillin, Mun. Corp. 311, § 2544, note and cases cited; Flagstaff v. Gomez, 29 Ariz. 481, 242 P. 1003; Menar v. Sanders, 169 Ky. 285, 183 S.W. 949, L.R.A.1917E, 422.
Where a municipality is bound to levy a special tax to pay judgments or for other special purposes, mandamus will lie to compel performance of such duty. McQuillin Mun. Corp. 2d ed. § 2536.
The incurring of a legal debt carries with it the constitutional obligation to levy and collect the tax required for its payment. People v. Railway Co. 323 Ill. 493, 154 N.E. 193.
A statute providing that the municipality "may" levy a special tax to pay an indebtedness is mandatory. Supervisors v. United States, 4 Wall. 435, 18 L. ed. 419; Coler v. Coppin, 10 N.D. 86, 85 N.W. 988.
The powers of the Federal courts to enforce their own decrees are not limited or circumscribed by state legislation. Canal St. R. Co. v. Hart, 114 U.S. 654, 6 S.Ct. 1127, 29 L. ed. 226; Evans v. Yost, 255 F. 726; United States v. Union P.R. Co. Fed. Cas. No. 16,599; East St. Louis v. United States, 120 U.S. 600; United States v. Capdeville, 118 F. 809; Buttz v. Muscatine, 19 L. ed. 490; United States v. Burlington, 154 U.S. 568, 19 L. ed. 495.
A proceeding to enforce a judgment is collateral to the judgment and therefore no inquiry into its regularity or validity can be permitted in such a proceeding whether it is a direct attack on the judgment or a proceeding supplementary to execution. 34 C.J. 522; McLeod v. Selby, 10 Conn. 390, 27 Am. Dec. 689.
A judgment against a school district cannot be impeached collaterally by an inhabitant whose property has been taken to satisfy it. 34 C.J. 516; Board of Commissioners v. Platt, 79 F. 568; United States v. Ft. Scott, 99 U.S. 152, 25 L. ed. 348.
The legislature might if it choose repeal or restrict the operations of a municipal corporation in the levy of taxes, or destroy its charter, nevertheless under constitutional principles the city still continued and its power still existed for the enforcement of any judgments recovered upon contracts or obligations created while the city charter was in force. United States v. New Orleans, 103 U.S. 358, 26 L. ed. 396; Canal Street R. Co. v. Hart, 114 U.S. 655, 29 L. ed. 226; Graham v. Folsom, 200 U.S. 248, 50 L. ed. 464; Menar v. Sanders, 169 Ky. 285, 183 S.W. 949, L.R.A.1917E, 422.
A municipal corporation cannot escape liabilities which are cast upon it by operation of law, under a plea that its indebtedness has reached the legal limit. People v. May, 9 Colo. 404, 12 P. 838.
The theory under which the right to levy special assessments is conferred on cities in this state militates against the levying of a general tax so long as there remains a reasonable probability that any existing deficiency can be met by imposing the burden thereof upon the property deriving the benefit from the improvement. Bismarck Water Supply Co. v. Bismarck, 23 N.D. 352, 137 N.W. 34; McQuillin, Mun. Corp. 2d ed. §§ 2374 and 2377; Lillard v. Melton, 100 S.C. 10, 87 S.E. 421; Quill v. Indianapolis, 124 Ind. 292, 23 N.E. 788; People v. Arguello, 37 Cal. 524; Cochrane v. Middletown, 125 A. 459; Moffit v. Decatur, 152 N.E. 602.
A grant of power authorizing payment for public improvements by special assessments is usually construed as not affecting the power of a municipal corporation to make improvements and pay therefor out of the general revenue. Pine Tree Lumber Co. v. Fargo, 12 N.D. 360, 96 N.W. 357; McQuillin, Mun. Corp. 1st ed. § 1863 and id. 2d ed. § 2010.
Double taxation has no application to a tax imposed because of the special benefit accruing to the party by whom it is to be paid. Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; Page & Jones, Taxn. by Assessment, § 719; Corey v. Ft. Dodge, 133 Iowa 666, 111 N.W. 6; Grunewald v. Cedar Rapids, 118 Iowa 222, 91 N.W. 1059; Re Beachwood Ave. 194 Pa. 86, 145 A. 127; Klemm v. Davenport, 129 So. 904; Wickliffe v. Greenville, 170 Ky. 528, 186 S.W. 476; Trygg v. Henderson Cotton Mills, 177 Ky. 613, 197 S.W. 1074; Redwood County v. Winona & St. P. Land Co. 40 Minn. 512, 41 N.W. 465, 42 N.W. 473; State ex rel. Frazer v. Holt County Ct. 135 Mo. 533, 37 S.W. 521.
Where special assessment warrants are issued by a city which is not generally liable therefor under the contract or statutes, it becomes the duty of the city issuing the warrants to levy the assessments necessary for the payment thereof and to take the statutory steps provided to collect the same. Barber Asphalt Pav. Co. v. Denver, 72 F. 336; Reilly v. Albany, 112 N.Y. 30, 19 N.E. 508.
Limitations of municipal indebtedness are applicable to debts created by voluntary acts of the municipality and not to those which are imposed upon it against its will. Thomas v. Burlington, 69 Iowa 140, 28 N.W. 480; Springfield v. Edwards, 84 Ill. 626; State v. Everett, 101 Wash. 561, 172 P. 752; People v. May, 9 Colo. 404, 12 P. 838.
Indebtedness to the amount of a city's debt limit is no defense to an action upon an involuntary obligation. Bloomington v. Perdue, 99 Ill. 329; Ft. Dodge Elec. L. & P. Co. v. Ft. Dodge, 115 Iowa 568, 89 N.W. 7; Little v. Portland, 26 Or. 235, 37 P. 911; Conner v. Nevada, 188 Mo. 148, 86 S.W. 256.
This is an appeal from a judgment of the district court dismissing an appeal from an order of the Board of County Commissioners of Richland county denying the application of J. P. Cunningham for a refund of taxes paid under protest.
The facts are stipulated. From this stipulation the following facts appear: The city of Hankinson is a municipal corporation. In 1920 a special improvement district including the whole of the city, was created in order to enable the city to construct a water system. The improvement was made. In November, 1920, special assessment warrants were issued to pay for it. These warrants were each for $ 500 and were payable on April 15th from year to year during the years 1921 to 1930, both inclusive. One W. D. Lovell became the owner of a large number of the warrants. The Drake-Ballard Company, a corporation, also became the owner of some of them. The warrants were not paid. Lovell brought several actions to recover on warrants so held by him and procured the entry of four judgments on April 4, 1929. The Drake-Ballard Company also sued and judgment was entered in its favor against the city on May 3, 1929. These several judgments aggregated in...
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