Minneapolis, St. P. & S. S. M. Ry. Co. v. Dickey Cnty.

• Decision Date: 29 April 1902
• Citation: 90 N.W. 260,11 N.D. 107
• Parties: MINNEAPOLIS, ST. P. & S. S. M. RY. CO. v. DICKEY COUNTY et al.
• Court: North Dakota Supreme Court

11 N.D. 107

90 N.W. 260

MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

v.DICKEY COUNTY et al.

Supreme Court of North Dakota.

April 29, 1902.

Syllabus by the Court.

1. The county commissioners levied, or attempted to levy, a tax upon the plaintiff's roadbed, franchise, rails, rolling stock, and other property belonging to it in Dickey county, pursuant to the action of the state board of equalization, as certified to them by the state auditor, under section 179, Const. Held, that such tax is a tax upon personal property for taxation purposes, under section 1228, Rev. Codes.

2. The evidence in the case shows that the county commissioners levied, or attempted to levy, a tax for county purposes, without first making an itemized statement of the probable county expenses for the ensuing year, under section 1228, Rev. Codes, and a road and bridge tax, without any petition to them for the building of any bridge or improvement of a road. Held no ground for restraining the collection of a personal property tax.

3. The complaint and evidence considered, and it is held that an injunction will not lie to restrain the collection of such personal property tax, as the plaintiff has an adequate remedy at law. Schaffner v. Young, 86 N. W. 733, 10 N. D. ---, followed.

Appeal from district court, Dickey county; S. L. Glaspell, Judge.

Action by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against Dickey county and another. Judgment for defendants, and plaintiff appeals. Affirmed.W. E. Purcell, H. B. Dike, and L. W. Gammons, for appellant. S. G. Cady, State's Atty., for respondents.

MORGAN, J.

The plaintiff in this action seeks to have certain taxes, claimed to have been illegally levied against it, set aside, and the collection of such taxes perpetually restrained. The grounds on which it seeks to secure such permanent injunction are the following, as recited in the complaint: That the county commissioners failed to make a lawful levy of any taxes in said county for the year 1900, for the reason that such commissioners did not make the itemized statement of the county expenses for the ensuing year, as provided by section 1228, Rev. Codes. The proceedings of the county commissioners, so far as an attempt to levy taxes for the year 1900, as based upon an itemized statement, are the following, viz.: “On motion, the following levy was made for county expenses for the ensuing year: County general fund, $20,000; sinking fund, $2,000; road and bridge, $3,500.” In the published proceedings of such board of commissioners there appears no different or other statement, and it is stipulated that no other statement was ever made or published by such board during said year. This omission to make and publish an itemized statement, as provided by said section of the statute, is urged as a reason why such tax is void, and is urged as a ground for equitable interference by the courts to prevent its collection or enforcement. The second objection urged by the appellant to the validity of such taxes is that the board of county commissioners attempted to levy a road and bridge tax without jurisdiction to do so, inasmuch as no petition for the construction of any bridge was presented to them, and without having made an itemized statement of the proposed cost of such bridge or improvement of the road. No other objections are urged against the validity of the levy or of the tax.

It is strenuously contended by the appellant that the omission to make such itemized statement rendered any attempted levy void, and that no tax levied without a preliminary itemized statement can be a valid tax, and that the attempted levy of a road and bridge tax, without an itemized statement of the cost of such bridge or road, and without a preliminary petition to such commissioners, rendered the whole tax levied for county purposes void. It is admitted that the state tax levied by the state board of equalization is valid, and not subject to attack on any grounds. The tax involved in this suit was levied or attempted to be levied in July, 1900, and its collection was enjoined by a temporary injunction in January, 1901, and before such taxes became delinquent. The case therefore presents the question whether a court of equity will interfere with the collection of this tax, under the circumstances pleaded and stipulated, or whether the plaintiff will be left to pursue its remedies by an action at law. It is claimed by appellant that the facts pleaded and proven bring the case within the rule adopted by courts justifying the interposition of a court of equity to restrain the collection of the tax. The defendant contends that the plaintiff has not brought itself within any of the recognized principles of equity jurisprudence justifying it in passing by remedies at law and resorting to injunctional proceedings. A statement of the allegations of the complaint will show the basis of plaintiff's contention. The complaint alleges (omitting allegation of incorporation): “And as such corporation has during all of said time owned and operated, and now owns and operates, a line of railroad in said state of North Dakota, extending into and through the said county of Dickey, and as such corporation is...