Smith v. Comm'rs of Leavenworth

1. Injunction—Taxes; Irregularities. The remedy of injunction will not lie to restrain the collection of a tax for mere irregularities. 2.--- Assessors/ Valuation. The failure of the township assessors to meet and agree upon an equal basis of valuation is a mere irregularity. 3. ---Excessive Levy. An excessive levy of a tax, where the excess is only slight, is a mere irregularity.

Error from Leavenworth District Court. Henry D. Smith and fourteen other persons united as plaintiffs, and brought an action against the Board of Comity Commissioners, and Alexander Repine, treasurer of said county, to enjoin the collection of certain taxes levied upon their real property in and for the year 1870. The petition shows that each of the fifteen plaintiffs owns certain lands in severalty, describing such lands, and giving the assessed value of each parcel, the amount of taxes levied on each parcel, and the aggregate amount of taxes demanded from each plaintiff upon the property owned by him — and alleges that said taxes are illegal and void, and that Repins, as treasurer, is about to sell said lands for said taxes, etc. The petition avers that the assessment was made by township assessors, and not by a' county assessor; that the assessors neglected “to meet and agree upon an equal basis of valuation,” etc.; that the board of commissioners levied taxes upon said assessment for state, county, township, school, and road purposes, support of schools, etc., (specifying the rate of each,) and that all such taxes have been paid by plaintiffs. The complaint is, that the commissioners levied a tax of 11 mills oh the dollar of said assessment “for the payment of K. & M. Bridge Bonds,” (8 mills for principal, If mills for deficiencies in previous levy, and If mills for interest,) and “11 mills for sinking fund,” and that these two taxes are unauthorized, excessive and illegal. The petition was verified, and was supported by copies of the assessment, extracts from the proceedings of the county board, etc. The action was brought pursuant to the provisions of §253 of the civil code of 1868, to-wit: “Sec. 253. An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same; and any number of persons whose property is affected by a tax or assessment so levied, may imite in the petition filed to obtain such injunction.” * Upon their verified petition, affidavits, etc., the plaintiffs moved for a temporary injunction, which motion was duly heard before the district judge, and on the 29th of May 1871 was overruled and denied. Plaintiffs excepted, and bring said order and record here by petition in error for review. [The reporter has made several applications to be furnished’ with plaintiffs’ brief, but has been unable to obtain it.] 1. The injunction was properly refused. The facts stated ip the petition taken with the facts presented in the affidavits on the hearing do not bring the application within the jurisdiction of a court of equity. It was a matter resting in the sound discretion of the court, and is not' the subject of review, unless it is manifest that the court has inconsiderately exercised its discretion; and this power is to be exercised according to the circumstances of each case: Thompson’s Prov. Rem., §41; 5 Kas., 114; 9 Wis., 166; 14 id,, 443. Section 253 of the civil code is permissive, not imperative, and only authorizes the injunction to be issued whenever the wrong that is complained of is discovered. It simply modifies the chancery power as to time alone. The same ground for granting an injunction must exist as formerly, with the exception that the party is not required to show “ irreparable injury,” or that “a cloud” is about to be cast on his title to real estate. 4 Duer, 200. And the informality or irregularity, if any, on the part of the board is not sufficient reason for interfering. This is an appeal to the extraordinary powers of the court, and plaintiffs are bound to make out a clear necessity for its exercise. 5 Kas., 114; 12 Barb., 555; 15 Abb. Pr., 445; 6 Johns. Ch., 46. 2. Plaintiffs have not paid or tendered that part of the tax admitted to be legal or just; and without this they are not entitled to.relief. 11 Wis., 497; 16 id., 185; 17 id., 287, 598; 10 Ohio St., 614. It must appear that the party applying is in danger of losing a substantial right, and is in no fault. It is not enough to show that the proceedings were irregular or even void. 7 Kas., 210; 14 111., 254; 26 Wend., 134. 3. Even if the facts are sucli as to bring the case within the jurisdiction of an equity court, yet no injunction will be g-ranted, if productive of public mischief. Any delay in the proceedings of the officers upon whom the duty is devolved of collecting the taxes may derange the operations of government, and thereby cause serious detriment to the public. Dows v. City of Chicago, 4 Am. Law Times, 107; 14 Wis., 618; 16 id., 666. 4. To determine the necessity of the taxes complained of, and whether they were authorized or not, the court must constitute itself a court of review on the action of the county board. It has no jurisdiction to set aside and amend the proceedings of subordinate tribunals, like the board of county commissioners, especially in the case where the tax assessed is not a cloud on the titles of plaintiffs, or will not produce a multiplicity of suits or irreparable injury.' 6 Johns., 28'; 4 Barb., 16; 26 Wend., 132;' 9 Paige, 16, 288; 7 How. Pr., 205. The county commissioners may defer levying taxes to create a sinking fund: §171, ch. 25, Gen. Stat., 292. The record shows that the, eleven mills levied for sinking-fund purposes, was the ascertained amount found to be necessary to meet the matured liability of the county on bonds and coupons, and was made on an itemized estimate of the respective amounts due by the county, as furnished by the county clerk. At most, the designation of this fund as a “sinking fund” would be an irregularity, not affecting the rights of the plaintiffs, nor increasing the amount of tax each person would otherwise be required to pay. 7 Kas., 210; 16 Wis., 1. It is urged that the tax for the payment of the K. & M. Bridge Bonds is void, because there was no statute authority under which they, could be lawfully issued, and therefore no legal tax can be levied on the property of plaintiffs to pay them. Ample authority exists: see special laws of 1868, p. 51, ch. 16, §§ 3, 8. And the commissioners .may borrow money for the purpose of paying assessments levied to pay such bonds; id., §§ 7, 8, p. 52.