
    Woodworth et al v. Gibbs et al.
    1. Practice: certiorari.to test validity of taxes: misjoinder of parties and causes. Where several townships separately voted taxes to aid in the construction of a railroad, and in the proceedings in each ■ ■ township a defect was alleged to exist which avoided the taxes, taxpayers in the several townships could not unite as plaintiffs in certiorari to test the validity of the taxes. And where the writ in such case was quashed below, and plaintiffs have appealed to this court, the objection to the misjoinder may be urged here, though it was not urged below. '
    2. Certiorari: duty of'court: discretion. In an action'of certiorari, it is peculiarly the duty of the court to scrutinize the petition, and interfere only in a cas® properly made; and, even then, the court may exercise a measure of discretion in granting or quashing the writ.-
    
      Appeal from Palo Alto Circuit Court.
    
    Friday, June 15.
    Action of certiorari brought to test tbe validity of certain taxes voted in different townships in Palo Alto county to aid in the construction of a certain railroad. The plaintiffs are tax-payers, one of whom owns property in each township, respectively. The persons made defendants comprise the present county supervisors, the county auditor, and county treasurer. The petition sets up the fact of the vote, the- levy of the taxes, and the attempt to collect the same by the county-treasurer; and, as ground for the issuance of the writ prayed for, it sets, up certain alleged defects in the proceedings,by reason of which it is averred that the. board of supervisors never acquired the right or power to make the levy in question. The writ was issued, and afterward, upon hearing, the court quashed.the writ and dismissed the plaintiffs’ petition. They appeal.
    
      T. W. Harrison and George E. Clarice, for appellants.
    Soper, Crcmford c& Carr, for appellees.
   Adams, J.

— The .defendants insist that the plaintiffs, being each a taxpayer in a different township, cannot properly unite ™ an acHon of certiorari to test the validity of the taxes in the different townships. And we have to say that it appears to us that their position is well taken. They are not interested in defeating the same taxes. They do not, therefore, seek the same relief, but only a similar relief. The plaintiffs’ theory, doubtless, was that while it is true that the taxes sought to be defeated by each are different from those sought to be defeated by any other, they aim at a common result, and that is, the annulment of the levy. The plaintiffs, we think, misconceived the true character of the levy, so far as the question before us is concerned. They doubtless regarded it as a single act. Possibly the levy of the taxes in the different townships was made by a single resolution. The record does not show how it was made. But it is not important to know. The levy of the taxes in one township was, in the nature of -the case, something distinct from the levy of the taxes in another township, and this constitutes the controlling circumstance. It may be that if the levy had been made by a single resolution, and the defect complained of had inhered in the resolution itself, and . had been of a common character, the plaintiffs might be said to have a common interest in the ■annulment of the levy. But such are not the defects.. One pertained to the character of the election held in Freedom township; one pertains to the character of the election held ■in Emmetsburg township; others pertain to the.mode in which, the different township clerks certified to the county auditor the result -of the elections in their respective townships; and while the defect complained of is of the same kind in each certificate, the different certifications were different acts, and bore no relation to eacli other. The interests of the plaintiffs, it appears to us, would not have been more distinct if the taxes in the different townships had been voted, certified and levied in different years. The levy of the taxes, then, in one township must, we think, ho treated as something distinct from the levy of the taxes in any other township. And if the tastes are invalid, and the plaintiffs are entitled to relief, it could properly be granted, we think, only by distinct judgments, annulling tlpe levy in each township as a distinct levy. Such being the case, it appears to us that there was both a misjoinder of pffaintiffs and of causes of action.

■ We come next to consider whether the defendants are entitled, to insist upon tiffs defense in the present condition of the case. They did not demur to the plaintiffs’ petition, but made return to the writ, and proceeded to a hearing upon the petition and return and a certain agreed statement of facts; the plaintiffs having first filed a written motion for ■judgment, and the defendants having filed a written motion to quash the writ and dismiss the petition. Appended to the defendants’ motion is a statement of various reasons why the writ should be quashed and the petition dismissed, being in effect a brief legal argument. In this argument the point is •not' made that there is a misjoinder of plaintiffs or of causes of action. We do not think, however, that the defendants •are precluded from insisting upon the point now. It may be that if they had been unsuccessful, and were now appellants, they could not be allowed to insist upon it as a ground of reversal. But the case is quite different when all they ask is that the action of the court below should be sustained. It is said in equity practice that “where the defendant omits to demur for multifariousness, the court may sua sjponte take tlie objection and dismiss the bill.” Chew v. Bank of Baltimore, 14 Md., 316. See also Oliver v. Piatt, 3 Howard, 412; Nelson v. Hill, 5 Howard, 127.

In an action of certiorari, the object of which is to annul the action of an inferior tribunal, board or officer, it is peculiarly the dnty of the court to scrutinize the petiJ J . r Uon, arLC^ interfere only in a case properly made, and everL then, it is said that the court may exercise a certain measure of discretion. Drown v. Stimpson, 2 Mass., 445; Lees v. Childs, 17 Mass., 352; People v. Supervisors, 1 Hill, 200; People v. Stilwell, 19 N. Y., 532; and in general should exercise its power sparingly. Farrell v. Taylor, 12 Mich., 115.

It is not bound to grant the writ on mere technical grounds, and where no prejudice is shown. See Johnson v. Board of Supervisors, ante, p. 89, and cases cited. It Was proper for the court to take all these matters into consideration, as we have no doubt it did, and we are not able to say that its action in quashing the writ was not a proper exercise of its discretion in view of the whole case.

Affirmed.  