
    PIERRE & FT. PIERRE BRIDGE RAILWAY COMPANY, Respondent, v. STUART et al, Appellants.
    (168 N. W. 33.)
    (File No. 4235.
    Opinion filed June 11, 1918.
    Rehearing denied July 24, 1918.)
    1. Taxation — School District, Extension of Boundaries, Beyond Two Mile Limit — Conspiracy to Tax' Additional Property to Pay Existing Debt, Invalidity of — Statute;
    Findings of trial court to the 'effect that' petitioners for extension óf boundaries • of an independent' school district, beyond the two mile limit referred to in Laws 1907, Ch. 135, Sec. 176, Subd. 6, conspired "to enlarge the boundaries of the district- for the sole purpose of raising' funds from" taxation of such- additional ‘ property to provide ’ for payment of an existing school district indebtedness, and solely in the interest of such tax paying petitioners, árid not in'the interest nor for benefit of education, etc., held, supported- by the evidence. Provisions of such chapter construed. ■ .,.
    2. Taxation — Unlawful School Taxes; Recovery Back, Annulment of Proceedings for Fraud- — Laches.
    In a' suit by a ‘bridge company against a county treasurer and an independent school district,'’ to recover hack tax'es paid‘by plaintiff and illegally levied, held,-.that..laches-cannot -be imputed to plaintiff, suit having been commenced, seventeen months .afte-r decision of the committee, . (provided for in Laws 1907, Ch. 135,‘Sec. 176,'S-ubd. 2) 'granting a petition for 'addition of adjacent’ territory to defendant school district, and within I6i months after plaintiff made its first payment of taxes thereunder,
    3. Taxes' — Illegal School Taxes — Suit to Recover" Back, and Annul • Proceedings, Whether Collateral Attack.
    A suit by a bridge company to recover back illegal taxes levied, and paid 'by it, and to. annul'tax proceedings involving an alleged illegal addition. . of adjacent territory to an independent school district, is a direct attack upon such proceedings.
    4. Taxation — Illegal School Taxes,' Recovery Back — Limitations— Statute Construed.
    A suit to recover back school taxes illegally assessed, and paid under protest, the first installment having bee(n paid in March, suit having been commenced in September following, was barred by Laws 1915, Ch. 2-89, requiring that actions of this character shall be begun within 30 days from date of payment, and providing that there shall he no 'other remedy therefor.
    5. Taxation — Illegal School Taxes, Recovery Back — Taxes Paid Subsequently to Suit — Amendment of Pleadings, Stipulation For Adjudication Under Supplemental Complaint — Recovery AEowed, Notwithstanding Limitations — Statute.
    In such suit where'- several payments of taxes so assessed were made after suit- began, .the parties having' stipulated that said subsequent payments might he brought into the case by supplemental complaint, which was done, held, that said Laws 1915, Ch. 289, does not require one paying taxes under protest to bring a new and separate action within 30 days after each subsequent payment, nor that he shall seek leave to file supplemental complaint every time he. makes a subsequent payment and within 3 0 days from the time of each payment; hut when such subsequent payments are made under protest and the statutory notice thereof given, trial court acted within the spirit, if not the- letter, of the law, in allowing recovery for such subsequent payments upon filing supplemental complaint at time of trial.
    Appeal from 'Circuit Court, Stanley County. Horn. Alva E. Taylor, Judge.
    Actilani by Pierre & Et. Hierre ’ Bridge; 'Railway Company, against Oscar E. Stuart, County Treasurer of Stanley County, and Ebrt P'ierre Independent School1 District, to recover back certain taxes paid by .plaintiff, antd. to annual certain, tax proceedings. Enoimi a judgment for .plaintiff, and! perpetually enjoying defendants', etc., andl from- an order denying 'a new trial, defendants appeal. Judgment modified!, and! as modified,
    affirmed.
    
      
      Philip & Waggoner, and P. W. Lambert, flor Appellants.
    
      A. K. Gardner, for Respondent.
    (i) To¡ point one of the opinion, Appellants cited): Sarkness v. Board of Goiunty Commissioners, (.Minn.) 154 N. W. 669; Blake v. Jacks, 108 Pac. 534, 27 L. R. A. (N. S.) 1147; Gottsthalk v. Becker, 49 N. W. 715; M'ayOr of Valvede v. 'Shat-tuck, 19 Gol. 104, 41 Ain. St. Rep. 208; State v. Beard df County Commissioners Wright Co., (Minn.) 148 N. W. 53; Independent School District v. District Nto. 37, 106 N. W. 302, 20 iS. D. 349; Am. Ann. Cases i9i'SB, pages) 1152,- 1153;' Seattle School Dist. No. 1 v. King County, 3 Wash. 154, 28 Pac. 376.
    Respondent cited: Pederson y. Stanley 'County, 34 S. D. 56a
   GATES, J.

This action was' brought by the Pierre & Et. Pierre Bridge Railway Company to recover the first half .df the school taxes for tihte year 1914 paid by it in March, 1915, assessed, against its property by the Et. Pierre independent school district, and for an amnulinent of the order hereinafter referred to. The ground of recovery was the alleged invalidity of proceedings had in 1914, whereby the boundaries' of said independent district were extended' to incluidle thle property of plaintiff. A better und’ersltanding. of the situation may be had by reference to the attached plat.,

The congressional township No. 5 north, of range 31 east, of the Black Hills meridian, is a fractional township, being bounded on the east by the Missouri river. Tine property of plaintiff begins ion the easterly bank of said river in Hughes county and ends on the westerly bank of said river in Stanley county. Prior to the proceedings had in 1914, the boundaries of such independent district were coextensive with the city limits of Ft. Pierre, which, as shlolwn by the plat, embraced an area substantially one máte square. The remaining territory in said congressional township was organized amdl known as Badl River school- district No. 5- By such proceedings the boundaries of itbe independent district were extended to embrace the whole congressional township. The trial court entered judgment in favor of plaintiff •adjudging the boundary extension proceedings to be -void 'and -of no effect, adjudging the recovery by plaintiff, of the sum of $13,609.08, being flor the four semiannual payments of school •taxes for the years 1914 -and 1915, with interest from the respective dates of payment, which -taxes were levied! under an assessied valuation of plaintiff’s property -in the sum of $612,226, .and perpetually enjoining defendants from levying and collecting, further school taxes on behalf of the independent district from the prop•eirty of plaintiff. From the judgment and ian order denying a ■new trial, defendants appeal.

The boundary extension proceedings were confessedly had •tinder the provisions of section 176 of chapter 135, Laws of 1907. Subdivision 3 of said section provides:

“The committee shall consider itihe interest of the 'two corporations concerned, the convenience of: the petitioners and the permanent school interest, and -if they deem it proper, shall grant the petition and issue an order authorizing the attaching of such -territory.”

The trial court found:

“That -s,aid petitions were circulated by, on behalf of, and in -the interest of certain interested taxpayers residing in said Ft. Pierre independent school district for the purpose of having the -property located in said Bad River school district Nio. 5, including the property of the plaintiff herein, attached to said Ft. Pierre independent school district, so that the same might be-come subject to levy for school purposes in said city of Ft. Pierre, and thereby subject the said property toi the payment of the indebtedness theretofore contracted by said Ft. Pierre independent school district and then existing, and for the purpose of relieving, to the extent of the amount raised by levy upon saiiidi property in. said Bad river school district No. 5, tire .property ¡of said resident taxpayers situate in Ft. Pierre independent school district, and -of shifting the burden of the indebtedness .theretofore incurred .and then owing by the said Ft. Pierre independent school diistridt and! the taxpayers thereof iupon the taxpayers of and! property ini said Bad River school district No. 5, amid! the said- taxpayers fin said Ft. Pierre school district Conspired and confederated together for said purposes, and for said1 purposes caused 'said petitions to be circulated and signed by certain electors of said two school districts, and for the purpose of inducing said electors to, sign said petitions represented to them that the purpose of the proposed1 annexation; of the territory in said Bad River schoioi district No. 5 was to: include plaintiff’s said property in the said) district, sio that it could be taxed, and by that means decrease the taxes of the said1 electors, and the only inducement held out to said electors) for Ithe signing of said petitions -wias that of shifting the burdlen of taxation upon plaintiff herein, and caused the said! petitions toi be- presented to and filed with the county superintendent of said Stanley county and secured certain action to be taken upon said petitions •hereinafter mentioned!, for the sole 'and! only purpose of- -raising fundís to provide fior foie payment o-f said indebtedness, which had already been -incurred, and1 flor the- payment of school! facilities and bearing the -expense incident thereto! ini said! Ft. Pierre indepenid1ent school district, and solely in foe interest of sUtto taxpayers, and not in foe interest nor for foe benefit olf education, nor for educational -purposes.”

The trial court also found that:

.The committee in granting the petitions acted “in furtherance of -said conspiracy and Collusion to1 shift foe said -burden of indebtedness and' taxation froto the property situate in said Ft. Pierre independent school district upon this plaintiff and others having 'property in said Bad River school- district No. 5, and without reference or regard to -educational facilities for the children of school age in said! Bad River school district No. 5 or Ft. P-ierre independent school district.”

The trial court also found:

“That no changes were made in ithe school facilities afforded! foe -childreni of school age in saidl Bad River school -district No. 5 by the said attempted annexation of said territory to the- said Ft. Pierre independent school district and none were intended or -contemplated, but said children have, since the. pretended annexation of said territory, attended foe public schools! in foe city of Ft. Bierre as they bad' been wont to do before the .pretended annexation oif said territory; that of the said .children practically all ■reside in tire immediate vicinity of the said city of Ft Pierre.”

Subdivision 5 of said section o'f tibe school law provides for the recording of‘the decision lof the committee by the clerks of the respective boards. Subdivision 6 provides:

“Such territory shall, from- the date of the order authorizing sUtoh Change, be considered a part of the independent district of [or] tihe said school district;
“Provided, that such order shall niat be issued until after the action and decisions of 'the committee are recorded by the board of education and itihe district school board.”

The trial court found:

“That the said' alleged action and decision of the committee was not recorded by the board of education or the district school board, or any of the officers of either of said districts, prior to tihe making of said pretended order by said committee, nor at any other time, and there never has been any record of any kind or character made in the records or bololcs. of the "Said Bad River school district No. 5 .of the said alleged action or decision af .he said committee, and the order attempted to foe made by said committee purporting to attach said' Bad River school district No. 5 to s'aid Ft. Pierre independent school district was so made without jurisdiction .or authority by said Committee.”

A further proviso of subdivision. 6 of s'aid section provides:

“Provided, that territory more than two miles from the limits of such city or town shall not be considered1 adjacent territory to which the provisions of this section may apply unless tihe electors-of such territory shall unanimously petition to be thus attached and considered as adjacent territory,”

The trial court found:

“That at the time of the fiM-nfg of said petitions and prior thereto there were -electors residing in said Bad River school .district No. 5 beyond! and' Outside oif .the two-mile limit, who. had not andi did not sign the said petition, and the court finds chat John Rea, Hornier Cannon, and Mins. Homer Cannon were at said times electors of said Bad River school .district No. 5, residing beyond said 2-mile limit, who did not sign- the said oetiitiion.”

The trial count further found thait ¡which is perfectly obvious, from the plat, viz:

“That the saa.di city of Ft. Pierre is mot mear tice center of said tolwnship No.' 5, but is', situate ini the extreme southeast corner thereof, and hence the' greater portion of the territory pretended! ta be attached) by said proceedings lies outside and beyond the tiwo.-mile limit.”

The court thereby negatived! the claim' of the appellants that tflie last proviso of said subdivision 6 is applicable to' the situation.

The argument of appellants rests chiefly upon the alleged insufficiency oif the evidence to sustain' the finding's Respondent insists that the court should' not look into this question because' the record affirmatively" shows thiait appellants are not •entitled to have the sufficiency oif the evidence considered. It 'appears that the notice of intention to amove for a new trial specified that the mto'tfiom was to be based upon a settled 'record and upon tine judgment roll. The motion was heard and denied on June '8, 1917. The record' was not settled until July 5, 1917, and! the settled record was. mot filed until July 16, 1917. There is therefore nothing before us to show 'that the trial’ court considered the settled record when, it 'acted upon the motion for a 'new trial'. The situation, is similar to that in Hardin v. Graham, 36 S. D. 525, 155 N. W. 782, Id.; 38 S. D. 57, 159 N. W. 895, where' under similar circumstances we held that we could 'not consider the suffiiicency Of the evidence to' support the findings. But if we should pass on! that question it would avail' appellants nothing, for we could not' escape the 'correctness of the finding of the trial coUrtf- as. ¡to tile fraudulent 'nature oif the acts' by which the independent district was sought to. be enlarged. '•

Appellants contend that the action whs 'barred by-plaintiffs laches, and that thé order in question! cimnOt be collaterally attacked. The action ' was-' begum 17 months after die decision of the '.committee; and within 6'months after' plaintiff íhadé its first payment of ’¡taxes thereunder. In so 'far as 'the action' sought an' annulment of the proceedings, we are clea!r that- laches 'carin’ot be "'imputed' te» ¡plaintiff because the action'-is based in part, at least,'upon fraud. ' It'staroély néeds to be'assertedl that this is a direct attack upon the proceedings. • ■'

Appellants -contendí that recovery of the two 1914 installments of taxes Was improperly allowed because the action was not timely -begun. In so' far as the- fir-st payment .is concerned! we think appellants’ position is well founded. The action was begun in September, 1915, before the ¡second installment of the 1914 taxes -was .paid, the first installment having been- paid in March, 1915, and the original -complaint sought recovery only for that payment. 'Chapter 289, Laws 1915, -requires' that actions for recovery of taxes paid- under protest shall be begun within 30 -days from the díate of .payment, and -provi-des- that there shall be met lather remedy therefor. By their answer the -defendants pleaded this 30-day limitation, and by motion for dismissal of the action at the clos-e of plaintiff’s testimony and again at -the conclusion of all of the testimony they presented this question. Were- it not for the pr-ovisliloos -oif that act we- should1 affirm the judgment ini whole, but we think -that under the terms of that act the trial court should have denied recovery for the first installment -of the 1914 taxes. In Zimmerman v. Corson County, 39 S. D. 167, 163 N. W. 711, we held that act applicable to the situation there presented. W-e think' it is applicable here for the -reason that it provides 'among -other thing-s:

“But in ail cases in which, far ¡any reason it shall be claimed that the tax [was] collected- 'or about to - be collect ed, was or is wro-ngfuly -or illegally collected' or about to be 'collected! for any reason whatever, in .'whole-, or in- ipart, the remedy shall be as above .provided and! im.ma other manner.,”

While, the answer of defendants .pleaded that the second installment of the 1914 taxes- was ipaidl November 2, J915, and that no action for its recovery was 'brought within 30 days from such payment, -the original complaint naturally contained no -allegation to which that portjiom of the an-swer was responsive. By stipulation the payments -of the second 'installment for 1914 and of -the two installments for 1915 were brought into- the case ■by supplemental icomplaint. We are not inclined to ho-l-d that the act -of 1915 required respondent to- bring a new and! separate a-cticn within 30 days after' every - subsequent .paym-ent,' nor even that "it -compelled '-respondent to seek leave to' file- a supplemental complaint every -thnie it" triadle subsequent payments 'and within 30 dlays from the time of each payment. When it paid its subsequent taxes under protest and gave the notice that the law required, and when the grounds of the protest were the same as the groiundls of the pending action, the trial court acted within the spirit of this statute, if not within its-, letter, in allowing a reioovery for such subsequent payments upon the filing of a supplemental complaint at the time of the trial.

The judgment appealed from is modified by Striking from the mioney judgment the item of $2,938.69, with interest from March 31, 1915; and as so modified it is affirmed. No costs will be taxed in this court.

The judgment was entered! in February, 19117. At that time the 1916 taxes, if any were levied upon the property of appellant for the benefit of the defendant school district, were payable. Nothing appears in the record or briefs in regard thereto. Therefore, in affirming the judlgment, we do not pass upon the question whether, in view of the act of 1915, the trial court could lawfully enjoin- the collection of those taxes.  