The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-01-19
CITY WINS A VICTORY
The Syndicate Fighting the Tax Levy
Knocked Out.
A. DEMURRER SUSTAINED
The Real Question at Issue Was
Not Reaohed-The Plaintiffs Did
oo1 Not Get Started Right-They
May Try Again.

Cd8t VI ~. u. BECK vs.. II. T.
county treasurer. was handed down to-
day. The grounds of demurrer were
that the plaintiff had not taken the
course Of procedure expressly provided
by law for cases of this kind. Attorney
O'Leary. who appeared as counsel for
the defendant, the real defendant be-
ing the City of Anaconda, ably sup
ported this contention in his argument,
and the court to-day decided in his
favor by sustaining the demurrer. This.
however. was merely a preliminary
skirmish, as the main question as to the
legality of the Anaconda tax levy was
not reached. The opinion rendered by
Judge Brantly was very lengthy and
complete. Its main points are as fol-
lows:
"At the outset II may be remarked
that this suit involves matters of so
much Importance to the plaintiff and
the public, for the defendant is only
nominally such. that the court feels
constrained to act with caution, and
undertake to adjudicate no question
which was not fully presented and dis
cussed at the hearing. No investiga-
ton will now be entered into for the
purpose of determining whether the
levy complained Of is illegal and void.
According to the view taken by the
court of the vital question in this case,
this Is not necessary. This question
was not argued at the hearing, except
In an incidental way by reference to
the provisions of the code touching the
limit of the levy that may be made by
municipal corporation. 1t may be re-
marked incidentally, however, that a
somewhat careful examination OF the
sections of the code cited as bearing
upon this question would lead to the
conclusion that the city council had no
warrant of law for levying- the tax for
fire. light and water. The allegation is
made in the complaint that no ordin-
ance was ever passed by the council
providing for taxes of any kind. An
examination of the title of the code
from which the sections above quoted
are taken fails to reveal any provision
for an assessment for fire, light or
water. Under section 1900. in sub-sec-
ton 2. the council Is empowered to levy
and collect taxes for general and spe-
cial purposes on all property within
the town or city subject to taxation
under the laws of the state This ap-
parently confers the power to levy for
general or administrative purposes, up
to the limit OF one per cent, as provtd-
ed in section 1914 supra. and for sucb
special levies as are provided in the
other sections above Cited, but for no
other. 1t Is general rule that in lew
Ing taxes, @ municipal CORPORATION
must act within the powers expressly
conferred by law or necessarily Implied
from DUTY imposed by law. Dillon
on Nun. Corp. Vol 4, 763-7es Inclusive
The power to levy the tax Complained
OF seems not expressly conferred by
statute. nor does II seem to be Implied
from any duty thereby imposed. II
therefore appears, from this examina-
ton OF the provisions OF the statutes on
tne subject, that the levy complained
vxHf Nrrt
In saying this. however, the court does
not desire to be understood as announc- |
ing definite conclusion, as this might |
preJudge this question and prevent a |
fair determination Of II after a com
plete and careful examination of other
sections OF the statute. which may have |
peen overlooked and the authorities
constituting them. The second ones
ffon raised by counsel for defendant Is
the only one requiring a definite an
swer. For this involves a consideration
OF remedies for cases of this kind and
the proper application thereof. Our
cooes seemingly provides two remedies
ed, and the determination of the rights
OF the parties in this case turns on the
question whether the PLAINTIFF has
choice OF the two. Assuming then For
the purposes of this discussion. that
the levy complained of is illegal and
volo, 90 the facts set forth in the COM
plant show such an unusual and e,rtro
ordinary condition of things as ~ t,,s-
tify the court in issuing the writ
prayed for? In the absence of
statute providing an adeonata
remedy. the plaintiff under the aIleqa-
tions of his complaint would be entitled
10 the writ. Prima facie the tax co.,
planned of is illegal, under our assnunn-
ton. The threatened sale will cast a
cloud upon his title. For, every tax e.
lien upon real property. See Political
Code. Sections assesses inclusive. Mai
ters recited in the treasurer's certifcata
Or sale are prima facie true. ana the
certificate is sufficient to vest The M
chaser at the sale with an eouitahIa
10 me property. A deed issued after the
expiration OF the time for redemption
gives absolute title, except In cases of
actual fraud. 1t seems also to be the
ttii settled rule. however, that. IL the
s1atute provides a speedy and perfectly
suequate remedy at law, the court will.
9rdinarlly, grant a writ TO restrain a
,uoiie onicer in the discharge of his
statutory duty In the collection of tax
3: Spelling, Ext, Rel, Vol. l., Sec. $40
'So' me, rs Am, Dec. 10 and note. Also |
~ MASS, 1874. There are many other
authorities on this point, but all seem TO
'e pretty wei agreed that the court
will not interfere by Injunction unless
1sTeI are special equities I'm the case
re only special equity presented in
ms case Is the allegation that the
nr1ealshsu sale or the property of
he defendant will cast a cloud ,non
ne plaintiff's title. AS indicated above
his is sufficient upon the assumptfon
nat the levy is illegal, TO warrant the ,
Injunction. in the absence OF a stafu-
CRY provision on this subject. Our
tatute. however, appears to furnish a
omplete and adequate remedy for inst
uch cases as the present, and by other
neans than the writ of injunction" The
ourt here quotes sections 4023-4O26 in
iusiye. Pol Code. as applicable TO the
ase. and adds: Section 1924. in connec-
ION with the implied prohibition in sec
on 1926, seems 10 require the construc-
on that these sections were designed
, limit the APPLICATION OF the provisions :
I section 1923 to those unusual extra :
roinary cases where the new remedy
ou!d not be applied without hardship.