Schaffner v. Young
| Decision Date | 24 May 1901 |
| Citation | 86 N.W. 733,10 N.D. 245 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Mercer County; Winchester, J.
Bill by Henry B. Schaffner against John Young, as sheriff of Mercer county, to restrain the latter from levying on complainant's property for taxes. From a judgment in favor of defendant, plaintiff appeals.
Affirmed.
F. H Register, James B. Kerr and J. B. McNamee, for appellant.
Section 3, Chap. 25, Laws of 1895, purported to increase the area of Mercer county by including therein twenty-four townships belonging within the unorganized county of Williams. This act was held unconstitutional. Richards v. Stark County, 8 N.D. 392, 79 N.W. 863. Chap. 57 of the Laws of 1899, was passed to meet the difficulties presented by the issues in the Richards case. Where the law under which a tax is imposed is in conflict with the constitution of the state, a court of equity will entertain jurisdiction by injunction to prevent the enforcement and collection of the taxes. High on Injunctions, § 490; Bristol v. Johnson, 34 Mich. 123; Gage v. Graham, 57 Ill. 144; Knowlton v. Supervisors, 9 Wis. 410. If there is a total want of authority to levy the tax, relief by injunction may properly be allowed. Town of Lebanon v. Ry. Co., 77 Ill. 539; Kimball v. Company, 89 Ill. 611; Marsh v Supervisors, 42 Wis. 502; Salscheider v. City, 45 Wis. 519. Where, under a mistake, personal property of a railroad company is taxed in the wrong locality an injunction will be allowed. Mohawk Co. v. Clute, 4 Paige 384; Chicago Etc. Ry. Co. v. Cole, 74 Ill. 591. Relief is granted for the purpose of preventing the enforcement of a tax by a municipality other than that to which the property assessed rightfully belongs. High on Injunctions, § 540; Union Pac. Ry. Co. v. Carr, 1 Wy. 96; Dorn v Fox, 61 N.Y. 264. Plaintiff is not estopped from complaining of the levy and assessments of taxes by the payment of taxes levied for state purposes. Plaintiff having delayed seeking relief until his property is advertised for sale, does not constitute such laches or acquiescence as to debar him from relief by injunction. High on Injunctions § 550; Holland v. Mayor, 11 Md. 186; Mayor v. Grand Lodge, 44 Md. 436; Stroesser v. City of Fort Wayne, 100 Ind. 443; Longworthy v. City, 13 Ia. 86; City v. Combs, 16 O. 181; Greencastle v. Black, 5 Ind. 557; Armstrong v. City, 36 Kan. 432, 13 P. 843; Storey v. Murphy, 81 N.W. 23. Chap. 57 of the Laws of 1889, is unconstitutional. The legislature cannot validate void legislation. Reading v. Savage, 120 Pa. 198; Stange v. Dubuque, 62 Ia. 303; Kimball v. Rosendale, 42 Wis. 407; Cain v. Goda, 84 Ind. 209; Strosser v. Ft. Wayne, 100 Ind. 443. This act is void for the reason that it fails to provide for the submission to a vote of the qualified electors the proposed change in the county boundaries. § 168, Const.; Wayne County v. Cobb, 52 N.W. 1102. The vote of the electors taken under the unconstitutional act of 1895 was not sufficient compliance with the constitution. Cooley's Const. Lim. (5 Ed.) 224; Clark v. Wallace Co., 39 P. 225; Cahoon v. Iron Gate Co., 23 S.E. 767; Meagher v. County of Storey, 5 Nev. 251; State v. Baker, 31 S.W. 924; Smith v. Sherry, 50 Wis. 210; Smith v. Sherry 54 Wis. 114; Lane v. Nelson, 79 Pa. 407; Richards v. Rote, 75 Pa. 248, 256; State v. Commissioners of Garfield Co., 38 P. 559; Sutherland on Statutory Construction, § 41.
E. C. Rice, Cochrane & Corliss, for respondent.
A court of equity will not hamper the administration of government by restraining the collection of a tax where the citizen has a remedy for the collection of the same by suit if he has paid the same. 1 High on Injunctions, § 505. The illegality of the tax alone, or the threat to sell if it is satisfied, cannot, of themselves, furnish any ground for equitable interposition. The party must find his remedy in the courts of law. Cooley on Taxation, 536; 2 Dillon's Municipal Corporations (3 Ed.) 924; Wason v. Magor, 50 P. 741; Lineham Etc. Co. v. Pendergas, 70 F. 1; Dows v. Chicago, 11 Wall. 109; Railway Co. v. Cheyenne, 113 U.S. 526; Shelton v. Platt, 139 U.S. 594; City v. Johnson, 51 P. 1004; Insurance Co. v. Bonner, 49 P. 366; Hall v. Fayetteville, 20 S.E. 373; St. Anthony & Dak. Elev. Co. v. Bottineau County, 83 N.W. 212, 9 N.D. 346; Erskine v. VanArsdale, 15 Wall 77. Restraining the collection of this tax would, of course, affect every other case of property situated as plaintiff's was in the territory sought to be brought by the act of 1895 within the limits of the three counties named in that act. The court therefore should be extremely cautious in awarding on the complaint of an individual which may reach the cases of others not complaining and embarrass the operations of the government. Cooley on Taxation, 536. The financial condition of the county is not vital, as it is elementary that the officer collecting the tax is liable himself for the money, and his act being an official one, his bondsmen are likwise responsible. St. Anthony & Dak. Elev. Co. v. Bottineau County, 83 N.W. 212, 9 N.D. 346; Erskine v. Van Arsdale, 15 Wall. 75; Western Union Tel. Co. v. Mayer, 28 O. St. 521; Shephan v. Dan, iels, 27 O. St. 527; Dunnell Mfg. Co. v. Newell, 2 At. Rep. 766; Shoup v. Willis, 6 P. 124; DeFremery v. Austin, 53 Cal. 380; Atwell v. Yeluff, 26 Mich. 120; Rumford Chemical Works v. Ray, 34 At. Rep. 814; Lindsay v. Allen, 36 At. Rep. 840; Wood v. Stirman, 37 Tex. 584; Powder River Cattle Co. v. Board of Comrs., 29 P. 361; Board of Comrs. v. Searight, 31 P. 268. Mercer county is a de-jure corporation within its original boundaries, and it is a de facto corporation within the new boundaries. The only way to oust the corporation from acting as a corporation over this new area is by an act of quo warranto. In this suit no such judgment can be secured. If plaintiff is successful it does not preclude Mercer county from establishing, in a direct suit brought to test its right to act as a corporation over the disputed territory, that the act of 1895 is constitutional. That quo warranto will lie where a municipal corporation is assuming to exercise corporate functions over an enlarged territory, is elementary. People v. Oakland, 28 P. 807; State v. Fleming, 44 S.W. 760; State v. Westport, 22 S.W. 888; State v. McMillan, 18 S.W. 784; East Dallas v. State, 11 S.W. 1030; People v. Peoria, 46 N.E. 1075; State v. Cram, 16 Wis. 343; People v. Maynard, 15 Mich. 463; 2 Spelling on Extraordinary Remedies, § 1802. Private suitors cannot raise the question whether Mercer county is lawfully exercising powers over the disputed territory, and in a collateral suit involving private interests. The questions must be raised in a direct proceeding, public in character, brought to settle once for all, so as to bind the whole world, the question of the legality of such corporate claim. Coler v. Dwight School Twp., 3 N.D. 249; State v. Ry. Co., 25 P. 296; Stuart v. School Dist., 30 Mich. 69; Mendenhall v. Burton, 22 P. 558; City of St. Louis v. Shields, 62 Mo. 247; Wason v. Magor, 50 P. 741. Richards v. Stark Co., 8 N.D. 392, in which the court held against the constitutionality of the act of 1895, was a direct proceeding by quo warranto attacking the right of Stark county to act as a corporation over the disputed territory.
This is an action in equity brought to enjoin the defendant, who is sheriff of Mercer county, from selling certain personal property belonging to the plaintiff, which property the defendant, under a warrant of authority issued by the treasurer of said county, had seized and was threatening to sell in satisfaction of certain alleged personal property taxes charged against the plaintiff on the tax lists of Mercer county. At the commencement of the action the District Court issued a preliminary injunctional order, whereby defendant was restrained from selling said property until the further order of the court. Later, and by an order dated September 8, 1900, the District Court dissolved and set aside the said preliminary order. Plaintiff has appealed to this court from said last mentioned order.
The facts in the record, which in our judgment, control the result in this court, are uncontradicted, and they may be briefly stated: The plaintiff's personal property in the years 1897 and 1898 was valued for taxation by one of the qualified and acting assessors of the county of Mercer, and in each of said years the county officials of Mercer county levied taxes for county revenue against the plaintiff, based on such assessments, and such taxes were later extended upon the tax lists of that county. The warrant of authority under which the defendant seized and distrained the plaintiff's property as above stated was issued by the treasurer of Mercer county, and delivered to the defendant, as sheriff of that county, under the provisions of § 1243 of the Rev Codes of 1899, relating to the collection of delinquent personal property taxes. This section authorizes the sheriff, when a delinquent list is delivered to him, if the taxes are not paid on demand, to "distrain sufficient goods and chattels belonging to the person charged with such taxes, if found within the county, to pay the same with the said penalty," etc. In support of his contention the plaintiff claims that the taxes charged against him on the tax list of Mercer county are absolutely void, for want of authority to levy and extend the same, and this contention rests upon the following state of facts. It is conceded that at all times in question, and long prior thereto, the plaintiff resided on section 10 of township No. 142 N., of range 92 W., and that the property of plaintiff assessed by the assessor of Mercer county in 1897 and 1898...
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