Green Mountain Stock Ranching Co. v. Savage , 15 Mont. 189 ( 1895 )

Pemberton, C. J.

— The plaintiff in this action is a corporation. It instituted this suit in the court below to enjoin defendant Savage, as treasurer aforesaid, from the collection of sj>ecial school taxes claimed to be due to said school districts for the year 1890, said taxes amounting, in the aggregate, to nine hundred and ten dollars and seventy-three cents. Seven hundred and thirty-five dollars and fifty-eight cents of said amount alleged to be due as such tax to school district No. 4, and one hundred and seventy-five dollars and fifteen cents alleged to be due to said school district No. 13. The complaint alleges that said districts levied such tax upon the property of plaintiff for the same year, for the same purpose, and upon identically the same property. The plaintiff alleges in its complaint that its particular place of business was not located within the limits'of said school district No. 4 at the time of the levy of said tax claimed to be due said district, and therefore claims that it could not be compelled to pay taxes in said school district. As to the tax levied by school district No. 13, the plaintiff seeks to avoid the payment thereof by attacking the organization of said district, claiming that the same was never, at any time, legally organized as a school district, with anthority to levy taxes, but admits its place of business to be within its boundaries if properly organized. The case was tried to a jury. The court submitted special findings of fact, involving the question as to the particular place of business of said corporation, as well as the legality of the organization of school district No. 13. The jury returned findings in all these matters in favor of defendants, and rendered a general verdict against the plaintiff. The court set aside the findings of fact and the general verdict, and thereupon dismissed the complaint of plaintiff, for the reason, as contended, that it did not state a cause of action, and rendered judgment against the plaintiff for costs. From this judgment, and an order refusing a new trial, this appeal is prosecuted.

The only material error assigned in this case is the action of the court in dismissing the complaint of plaintiff upon the ground that it did not state a cause of action.

The plaintiff alleges in its complaint that the pretended school district No. 13 never had any legal existence, for the reason that nothing whatever was ever done by the county superintendent of schools, or the board of county commissioners, or any other person, which section 1875 of the Compiled Statutes of 1877 required to be done in order to organize a school district. If the facts stated in the complaint in relation to the organization of this district are true, then it never had any legal existence. It is a nullity. The organization of this district is not attacked on account of irregularities. But the facts alleged show that there never was in fact any such corporate entity as school district No. 13 in Custer county. In order to give a school district existence, at least some thing ought to be done which the law requires to be done in order that it may claim organization and assume to exercise the privileges and franchises of a corporation. If this district were plaintiff in this case and alleged its corporate existence, it certainly could not prove it if the facts are as alleged in the complaint herein. The arguments of counsel for this district, and the authorities cited, are applicable to cases where the organization is sought to be attacked for irregularities merely. We think they do not apply when the actual existence of such a corporation is the issue presented.

Tlie' plaintiff alleges that its principal place of business is not within school district No. 4, and that for this reason it was not subject or legally liable to taxation in and by this district. If this be true, and it must be so considered for the purpose of this ease, then the tax levied and sought to be collected for this district is void.

It is contended that plaintiff should have gone before the board of equalization for these districts in the first instance and sought relief) and that its complaint should state this fact to give it standing in court in this case. If the place of business and property of plaintiff are without the limits of school district No. 4, then said school district never had any jurisdiction to levy a tax against the plaintiff. If the pretended school district No. 13 never had any existence, then, of course, it never hád any jurisdiction to levy the tax it claimed or to do any thing else.

From this consideration we are of opinion that the complaint stated a cause of action as to district, No. 4, as well as to the pretended district No. 13. The case is therefore reversed and remanded for such further proceedings as may be appropriate to the conditions of the case. (Woolman v. Garringer, 2 Mont. 405; Collier v. Ervin, 2 Mont. 556.)

Reversed.

De Witt, J., and Haewooc, J., concur.