Wood v. Bangs

1 Dakota 179

• Court: Supreme Court Of The Territory Of Dakota
• Decided: December 15, 1875
• Status: Published

Opinion

BarNes, J.

This action is brought by the plaintiffs, residents and tax-payers of Bon Homme county, against the defendants, Bangs, Zitka and Donley, as county commissioners of Bon Homme county, G-eorge J. Rounds, treasurer of said county, A. M. English and H. H. Calhoun, as contracting parties for the building of a court house for Bon Homme county, and W. A. Burleigh and A. J. Paulk, persons having purchased and holding county orders, issued to English and Calhoun, in payment on said court house contract, and by them transferred to defendants Burleigh and Paulk.

The plaintiffs ask that a certain contract, made between the commissioners on the part of the county, and English and Calhoun, the contractors for the building of the court house, be set aside, annulled and declared void, that the county warrants issued in pursuance of that contract, and in the hands of Burleigh and Paulk, be returned and cancelled, the same having been issued without authority of law, and that the treasurer, Rounds, be perpetually enjoined from paying warrants issued in payment for building the court house.

The court below refused the demands of the plaintiffs, and judgment was entered for the defendants. From that judgment the plaintiffs appeal.

The first question to be considered is this: Under what circumstances will a court of chancery interfere by injunction to restrain the acts of a corporation, or the acts of an administrative officer or board?

An injunction will not be granted to restrain the doing of an act which is unlawful and irregular, unless substantial and positive injury will result from a refusal to grant the writ. (High on injunction, § 9.) An injunction will never be granted when it will be productive of hardship, oppression or injustice, or public or private mischief. (9 Wisconsin, 166.)

The court of equity will not interfere or restrain the execution of a deed for land sold for taxes, on the ground that the tax proceedings were irregular or void, unless itfurther appears that the tax proceedings are inequitable, and that it would be against equity and good conscience to refuse the writ. See U. S. Digest, § 6, vol. 1, new series, and cases there cited, 14 Wis. 618. See also, Pettibone v. The Milwaukee & LaCrosse R. R. Co., 14 Wis., 443. In the case just cited the court uses this somewhat significant language: “ The inconvenience which would result from an injunction, adds great weight to the reason for refusing it.”

The granting or refusing an injunction rests in the sound discretion of the court, and will never be granted when productive of hardship, oppression or public mischief. Injunctions will not be granted when the benefit secured by it to one party is of but little importance, while it will operate op - pressively, and to the great annoyance and injury of the other party, unless the wrong complained of is so wanton and unprovoked in its character as properly to deprive the wrong doer of the benefit of any consideration as to its injurious consequence. (20 New Jersey, 1869, page 530.)

An injunction will not be granted when the injury complained of is slight compared to the inconvenience to the defendant and the public that would result from the granting the injunction. (20 New Jersey, 435.) But perhaps the strongest case bearing on this question is that of Kneeland v. The City of Milwaukee, 15 Wisconsin, 414. The legislature of Wisconsin passed a law allowing the railroad corporations' to pay a certain per centage upon their earnings each year to the state treasurer, in lieu of all taxes, state, county and municipal. This mode of taxation had been followed for a number of years, when the present case was before the court. The court declared the act of the legislature void, as being in conflict with the provision of the state constitution which provides that taxation shall be equal, and both the Chief Justice and Justice Paine, in unmistakable language declare that, whatever the consequence of their decision maybe, they being satisfied that the law referred to was in violation of the provisions of the constitution, they must and will so declare it. It was soon discovered that that decision would unsettle and make void a large proportion of the assessments and collection of taxes in the state for several years past; that the confusion,.. embarassment and litigation that would flow from it would be disastrous. They therefore ordered a re-argument of the case, and while adhering to their former expressed opinion that the law was unconstitutional, yet, in view of the disastrous consequences that must follow their decision, they reverse that decision, and thus allow the wrongful, unequal and inequitable tax to be collected, and this, too, solely upon the ground that granting the plaintiff that which the court-says he was equitably entitled to, would work a great hardship to the public generally.

I will ndw consider the facts in this case, and for the purpose of this argument, and that only, will assume that the county commissioners exceeded their authority, and will also assume for the purpose of this argument, that the plaintiffs, as tax payers, unitedly have a right to maintain this action.

From the facts disclosed in this case, it appears that by an act of the Legislature of the Territory, two terms of the district court are required to be held in Bon Homme County each year. It further appears that the county has no court house nor place for holding court or transacting county business, nor is there any place at the county seat that can be procured by the county for that purpose. The law makes it the duty of the commissioners to provide a place for holding court, and the transaction of other county business. The law also authorizes them to make contracts for the erection of county buildings, and also to make contracts for the repair of the same, whenever necessary. From these facts it clearly appears that there was a pressing, if not an imperative necessitj” for action on the part of the county commissioners.

Recognizi ng this necessity, they assemble at their usual and accustomed place of meeting, they cause public notice to be given that proposals will be received for the building of a court house. Proposals are submitted to them, are duly examined by them, and the fact disclosed that the defendants, English and Calhoun, are the lowest responsible bidders, and to thém is awarded the contract for building the court house. The plaintiffs, it appears, or some of them, are present at these meetings, and enter their objection or protest against the action of the board.' Now, we will not stop to inquire whether these plaintiffs feeling aggrieved by the action of the commissioners, should not have appealed from that decision, and whether that was not the proper and only remedy. But we examine the action of the commissioners for the purpose of noting the fact that they appear to have acted in perfect good faith — an important consideration in an equity proceeding.

It further appears that the contract was made with the defendants, English and Calhoun, to build the court house, for the sum of three thousand, three hundred and thirty-three dollars. That that sum was to be paid in county warrants. It also appears conclusively that it was worth in cash to build the court house the sum which the defendants English and Calhoun received, or were to receive in warrants, and it appears with equal clearness that these warrants were in part worth not to exceed fifty cents on.the dollar. I think, too, it also appears from the evidence that the defendants Burleigh and Faulk, being solicitous for this improvement, purchased these county warrants of English and Calhoun, and paid their face or par valué, Be this as it may, the fact nevertheless appears that Bon Homme county have their court house at about-one half its value, when we reduce the warrants, in which payments for the improvement have been made, to a cash basis. From the statement it will be at once seen that the building of the court house has not depreciated the value of county warrants. It should now be observed that the defendants, the commissioners, in contemplation of law, represent all the residents, the tax payers and free holders of their county; that they thus represent the plaintiffs, who, being:tax payers have no interest that is not an interest in common with all tax payers.

Assuming, therefore, that the commissioners exceeded their authority in entering into a contract in the precise terms of this contract, or assuming even that this contract is void, the question of the building of the court house not having been submitted to a vote of the electors, the fact is nevertheless clear that the commissioners have so discharged their duty that the tax payers of the county have secured the building of a court house, absolutely and indispensibly necessary for the county, and on terms exceedingly advantageous to the tax payers, the plaintiffs included.

I thus reach the conclusion that the plaintiffs suffer no loss, present or prospective, by refusing the injunction asked for. That on the contrary, it is clear the defendants would suffer irreparable loss and injury, by setting aside and declaring void the contract for the building of the court house, and granting the injunction asked for.

But another, and equally important question is this: Can persons having no interest except that which is common to all the tax payers, maintain a suit in equity to set aside the acts of town or county officials? A leading case, and one that seems to me to be decisive of this question, is the case of Doolittle v. The Supervisors of Broome County, 18 N. Y., 155. The opinion is by Justice Denio. The object of this suit was to obtain a judgment declaring null and void a certain act of the board of supervisors of Broome county, by which that board divided the former town of Chenango into three towns, to be called respectively Chenango, Binghampton and Port Craine. The plaintiffs, seventeen in number, representing themselves to be, and to have been for more than four months, residents and free holders of that part of the town of Chenango, which, by the act of the board of supervisors, was sought to be erected into a separate town, by the name of Port Craine. They state that they commence the action on behalf of themselves and all other persons who have an interest with themselves in restraining the organization of the new towns. The court say: “ The first question is this: Has the plaintiffs such an interest as will enable them to maintain this action? This raises a question of much importance, which if it be now doubtful, ought to be definitely settled. It is not pretended that the plaintiffs have any interest which is not in common with all resident free holders of the proposed new town of Fort Craine. The grievance is that they are all threatened to be subjected for the-purposes of local administration to a jurisdiction not created according to law. This will affect not only the other free holders besides the plaintiffs, but all the inhabitants of that local district, whether they are free holders or not. Assuming that the proceedings under which the new towns are proposed to be organized, were void, as claimed by the plaintiffs, no private interest of the plaintiffs’ has been invaded, and no injury peculiar to them is threatened.” The court further say: “The acts of the supervisors have no bearing on the plaintiffs’ individual interest. Whatever concerns they have in the question belongs to them only as citizens, and members of the community. If this action can be sustained, then any tax paying citizen may compel the public authorities to litigate in the courts the acts of any administrative board or officer in the state, and thus proceedings of this kind can only be perfected by the judgment of the court of final appeal. Every person may legally question the constitutional validity of any act of the legislature which, affects his private rights, but if a citizen may maintain an action for such a purpose, in respect to his rights as a voter and tax payer, the courts may regularly be called upon to revise all laws that may be passed. They may at the instance of any tax payer beTequired to enjoin the comptroller from drawing warrants on the treasurer, and that officer from paying them, in every case where it may be conceived that the law authorizing the expenditure was passed without constitutional authority. The state tax of 1855 was lately impeached upon plausible grounds as having been unconstitutionally enacted. This was done by a direct proceeding by the attorney general against the board of supervisors. But upon the plaintiffs position in this case, the state and county officers might be compelled to litigate the question of constitutionality with every tax payer, and thus the fiscal business of the state would be transacted mainly in the courts. The law, in my judgment, does not afford such ati opportunity for excessive litigation.”

No private person or number of persons can assume to be the champions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts. In the case of Hale v. Cushman, 6 Metc , 425, a town in Massachusetts had passed a vote to pay certain expenses, which, the plaintiffs who were legal voters, and who together were liable to pay more than one half of all the taxes to be assessed on the inhabitants of the town, claimed to be illegal. They filed a bill to enjoin the payment. The bill was dismissed upon the ground above recognized. This, too, is an elementary principle. Blackstone says: “It would be unreasonable to multiply suits by giving to each man a separate right of action for what damnifies himdn common only with the rest of his fellow citizens.” (Book 4, 167. See also 16 Howard, term reports, 512 and 137; 19 How., 525, and 35 How., 82; 27 N. Y., 348. This case refers to the decision in 18 N. Y., 157, and expressly approves the same.

In Newcomb v. Horton, 18 Wisconsin, 566, the plaintiff sues in behalf of himself and other tax payers of a school district to prevent the collection of a tax to pay a certain judgment fraudulently obtained, and to cancel the judgment. The first objection is in substance that the respondent could not bring this action in his own behalf, and on behalf of several tax payers of the school district. That there is no common right or common interest of those persons in the property affected by the tax. That the tax is upon and against the individual property of each tax payer, and that if there is any injury, it is an injury to the property and rights of each tax payer alone, and not an injury affecting a common right or interest, and this objection must prevail.

There is no general or common interest affected by the assessment tax in this case. The property is owned in severalty, and each tax payer may sue alone and obtain a complete relief, so far as his rights and property are concerned. There is no necessity for one tax payer to unite another with him in a suit for this purpose. It is true, selling iand for an illegal or void tax would be injurious to all persons whose property was sold. But this does not prove that one tax payer may bring this suit for himself and others. Their rights and interests are entirely distinct, and one tax payer may obtain complete relief without making another a party. From, a careful examination of all the cases I have been able to find, I am satisfied that the doctrine enunciated in the above cases is sound and may be safely followed.

It occurs to me that in holding to the contrary (holding that two or more tax payers may unite in one action) is to assume that because the same state of facts exist, as touching each of the tax payers, and because the same defense may be interposed in each case, that that constitutes a united and joint interest. That cannot be true. But to authorize two or more tax payers to unite in the same action, it must appear that the lien if created, or the tax if collected, would be collected from property owned in common.

There is still another consideration not to be lost sight of, which I will only allude to, namely: that generally a party that comes into court asking for equitable relief must first restore that which he has received from the defendants. It may be said that these plaintiffs have received nothing from the defendants. That answer will not suffice. The tax payer has, in fact, received the labor, material and money of the defendants English and Calhoun, and if these plaintiffs now represent the tax payers of Bon Homme county, and as such, seek to set aside and avoid the contract under which English and. Calhoun performed valuable^ services and expended their money, then these tax payers must do that which is'equitable.

I come now to the consideration of the only remaining question which I regard as important in this case. Section 27, chapter 4, laws of 1869, gives the county commissioners authority and power to erect and repair court houses, jails and other county buildings, and expressly authorizes them to make contracts for that purpose. Section 3T of the same chapter authorizes an appeal from the decision of the commissioners upon all matters properly before them, by any person aggrieved, to the District Court of the county. Section 34 provides, that all appeals taken from the decision of the commissioners shall be docketed as other causes pending therein, and the same shall be heard and determined de novo. Section 35 provides that the District Court sliall render final judgment, and cause the same to be executed, or the District Court may send the same back to the commissioners with an order how to proceed, and require the board to comply with the order by mandamus or otherwise. Here, then, is a plain, simple, sensible, cheap and adequate remedy given by statutes to all persons aggrieved by the action and decisions of the board of commissioners.

The record in this case discloses the fact that the plaintiffs well knew of the -action of the commissioners; they were, in fact, present and protested, as appears of record, against the action and determination of the board. If they were dissatisfied it was their duty to have pursued the remedy given by statutes. Here is a plain statute empowering the commissioners to build a court house, and the same statutes gives all parties aggrieved by the decision of the commissioners, the right of appeal. It seems hardly necessary to cite authorities in support of this position, that where a statute confers upon public officials authority to do one act, and then the same statute points out the remedy secured or given to all parties aggrieved, that the aggrieved party must pursue his legal or statutory remedy, and that such aggrieved party has no standing in a court of equity. See 15 Wallace, 227. This is the language of the Court.

It has been insisted by the counsel for the appellants that there is a complete remedy at law, and that the bill must, therefore, be dismissed. Such must be the consequence if the objection is well taken.

In the jurisprudence of the United States this objection is regarded as jurisdictional and may be enforced by the court though not raised by the pleadings nor suggested by the counsel. See also 2 Black, 551, and 15 Wallace, 373, and cases there cited.

We are, therefore, unanimously of the .opinion that so much of the preliminary injunction as remains in force, should be dissolved, and that this action be dismissed.

It is accordingly ordered, adjudged and decreed that said injunction be dissolved, and the action dismissed, at the proper costs of the appellants; and the court below is directed to take such further proceedings in the premises as may be required by law.