Sinclair v. Com'Rs of Winona Co.

• Decision Date: 20 March 1877
• Citation: 23 Minn. 404
• Parties: DANIEL SINCLAIR and others <I>vs.</I> BOARD OF COUNTY COMMISSIONERS OF WINONA COUNTY and others.
• Court: Minnesota Supreme Court

Page 404

23 Minn. 404

DANIEL SINCLAIR and others vs. BOARD OF COUNTY COMMISSIONERS OF WINONA COUNTY and others.

Supreme Court of Minnesota.

March 20, 1877.

Appeal by plaintiffs from a judgment of the district court for Winona county.

C. H. Berry, for appellants.

Lloyd Barber, for respondents.

BERRY, J.

It is alleged in the complaint that, as directed by Laws 1874, c. 2, amended by Laws 1875, c. 6, c. 8, the defendant, the county auditor of Winona county, had, prior to May 4, 1875, prepared a list of lands delinquent for taxes assessed before 1873, for the purpose of filing the same in the office of the clerk of the district court, on the first Monday of August, 1875, as he intends to do; that, professing to act under the statutes above cited, the defendant, the board of county commissioners of said county, have designated the Novelty Press, which they style a newspaper, as the newspaper in which the auditor shall publish the copy of such delinquent list, and the accompanying notice required to be furnished by the clerk for that purpose; that it is the intention of the commissioners and auditor to publish the copy and notice in said Novelty Press, and that it is also the intention of the commissioners to pay for such publication out of the county treasury. The complaint then proceeds to allege that said Novelty Press is not a "newspaper," within the meaning of the statutes, and, therefore, not such as the county commissioners have any authority to designate for the purposes aforesaid, or to cause the publication before mentioned to be made in. As relief, the complaint prays that the auditor may be enjoined from publishing said notice or list in said Novelty Press, and that the board of county commissioners may be enjoined from paying for any such publication, for or on behalf of the county. The case coming on for hearing in the court below, the defendants moved to dismiss, upon the grounds that "the complaint does not state a cause of action, and that the court has no jurisdiction of the matter." The motion having been granted, the case comes here upon appeal from the judgment of dismissal.

The effect of the motion to dismiss being to admit that the Novelty Press is not a newspaper, within the meaning of the statute, and that, therefore, the publication of the list therein is entirely unauthorized, the case presents two questions: (1) Is an injunction a proper remedy? (2) Are the plaintiffs the proper parties to an action for such remedy?

It is claimed that, as the collection of the delinquent taxes (some $15,000) depends upon the legality and regularity of the proceedings for their collection, they will be imperilled, and the county lose or be in danger of losing them, if the publication is made in the unauthorized manner proposed. It is further claimed that to pay for the unauthorized publication out of the county funds will be a misapplication of the same.

Upon the allegations of the complaint these claims would appear to be well founded. That there is some remedy in a case of this kind is not questioned. Is there an adequate remedy at law? The defendants contend that there is, by certiorari; but, as respects the designation of the Novelty Press by the commissioners, a cerliorari would bring up only the record of the proceedings by the board of county commissioners. Cooley on Taxation, 535. It is not to be presumed that such record would show anything whatever as to the question whether the Novelty Press was or was not a newspaper, within the meaning of the statutes; and upon the answer to this question would depend the authority to pay for the publication out of county funds. In addition, it is to be observed that the action of the board in designating a newspaper, as well as in doing the other things objected to, is ministerial — not...