Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-11-30
COURT MAKES IMPORT
ANT DECISION.

ANT DECISION.
Tax Decision Rendered In Case Of
Douglas. VS.. City Of Fargo, One Of
the Most Important Handed Down
by the Supreme Court In Recent
Years. :.
In the case of Flora J. Douglas, ap-
pellant, against the city Of Fargo, the
city auditor, the board of education of
the city, the county of Cass and the
county auditor and treasurer of the
county, respondents, the supreme
court has handed down the most i'm
portant tax decision in its history. At
the annual tax sale for the year 1897
in Cass county 81 lots owned by the
plaintiff and appellant were sold for
taxes and hidden in by the county, no
other purchasers appearing. The
taxes on the lots for the years from
1897 to 1902 were not paid, and their
validity and the right of the county
to enforce payment are the questions
involved in the action. The plaintiff
brought the action to set aside the
taxes levied on the lots for the year
subsequent to 1896 and to enjoin their
collection. The grounds on which this
relief was asked were: that the as
sessment roll was not authenticated
by the assessor; and in this connec-
ton the supreme court goes back to
the rule laid down in the case of
Harrington VS.. New England Invest
ment company, decided fifteen years
ago. In that case the court held that
the person who asked equity must do
equity-that is, that the person must
pay the tax properly chargeable
against the property before he can
ask courts to enjoin the collection of
taxes or ask such other relief as the
circumstances warrant.
A number Of other technical objec-
tions were made to the taxes but the
supreme court holds that these do not
go to the validity of the assessment
or. fundamental matters. In its sylla.
bus the court lays down the law in
such matters as follows: )
1. In an equitable action brought to
set aside tax sale made in 1897 fo1
the delinquent taxes of 1896, and tc
cancel the assessment of taxes and
levies of taxes for subsequent years
up to and including 1902, the absence
of an assessors affidavit from the as
sessment does not invalidate the sale
or levies in such equitable action
Harrington VS.. New England Invest
ment company, N. d. 1902 followed.
2. The omission to attack the as
SCISSORS affidavit to an assessment roll
is an illegal act and renders such as
sessment void in an action at law, but
such omission will not invalidate an
assessment where there is no allega
ton that the assessment is unjust, un.
fair or fraudulent, in an equitable &C.
ton to cancel sales or certificates, or
taxes made, issued or levied under
such assessment.
3. Courts of equity should in sgener.
al interfere to restrain the collection
of tax, or annual proceedings, only
where it appears either that the
property sought to be taxed is not sub.
ject to taxation, or the tax itself is not
wholly authorized by law, or the taxes
are assessed or levied by unauthorized
persons, or the taxing officers have
acted fraudulently, or the taxes have
been unjustly levied, or the assess.
ment made unjustly or without uni
formity, and the plaintiff must, in ad.
dition, bring himself within some
recognized head of equity jurispru
dence, and must also tender or pay
the taxes justly chargeable upon his
property before an injunction should
issue to restrain the collection OF the
taxes unless statutory provisions make
Il "
such tender unnecessary. Harrington
VS.. New England Investment Co.
supra, followed. y: i,
4. Sections 1910 and 1913, Compiled
Laws, authorizing the court to render
judgment for the taxes due, ii lieu o,
tender, were repealed in 1897, and nt
substitute therefor has since been en-
acted. .5
s. In such an action the complain
should show payment Or tender of til
taxes Justly due or 1t will be held no
to state cause Of action.
R the complaint or eyidenc,
shows that 4 portion Of the taxes 81,
legal and the amount ascertainable