Bismarck Water Supply Co. v. County of Burleigh

Pobinson, J.

This is an appeal from a judgment of the district court of Burleigh County on an order overruling a demurrer to a complaint in an action to cancel a void tax. The complaint shows that in the years 1901 to 1905, inclusive, the plaintiff was the owner of a system of waterworks and that there was connected with the water mains of plaintiff a line of water mains extending to the state penitentiary, and another line, which belonged exclusively to the state and was used to supply water in the penitentiary and the capitol. That in said years the defendant caused the valuation of said 3 miles of water mains to be added to the valuation of the plaintiff’s personal property. On this false valuation there was assessed and levied against the property of the plaintiff the sum of $4,416.79, which included $1,416.79 on the valuation of said 3 miles of water mai-ns which belonged to the state. Then plaintiff appealed for relief to the county commissioners and appealed to the district court from an order of the commissioners denying it a just abatement of such illegal tax. While the appeal was pending, the plaintiff and the defendant compromised the matter. The plaintiff agreed to pay and did pay the sum of $3,000 in full discharge of the taxes levied against it, and the defendant agreed to abate and cancel the illegal tax. The defendant failed to perform its agreement and caused the void tax to be extended on the tax list against the real property of the plaintiff, which was advertised and bid in by the county for the amount of such void tax, with interest, penalty, and cost. Of course, the demand of the complaint is that the void taxes and tax sale be canceled.

As the stated facts show beyond question that the taxes and tax sales were void, the complaint does state a good cause of action. Indeed, the plaintiff had a good cause of action without applying to the commissioners for any reduction of the assessment. The case d&es not involve any question of compromising a tax, or of an accord and satisfaction. It is merely a suit to declare that a void tax is void.

In reading the decisions of this court and the statutes of the state it must be remembered that under the Constitution every man has a remedy by due process of law for all injuries done him in his person or property. He does not have to run all round Eobin Hood’s barn. He may demand of the courts right and justice, without sale, denial, or delay.

It is needless to waste time in reviewing decisions on so simple a matter. The order overruling the demurrer and the judgment are affirmed.