The opinion
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Opinion of tbe court by
McAtee, J.:
Tbis cause came on to be heard in the lower court upon the petition and demurrer' thereto. The petition averred the invalidity of the assessment and valuation of property under and because of the attempted re-assessment and valuation made by the territorial board of equalization in June, 1895, which is complained of and fully set forth in the case of
Gray v. Stiles,
decided at this term.
The per centage which, under the invalid action of the territorial board of equalization, was added to the taxes of the plaintiffs and other tax payers of “D” county, was 50 per cent., thereby doubling the amount of taxes to be collected from the plaintiffs and those in a like station with them in “D” county, under the action of the territorial board of equalization, thus undertaking the functions of assesment and valuation.
The case will be passed upon upon the same principles and for the same reasons as those which are set forth in the case of
Gray v. Stiles.
The case as brought here does, in fact, make the principles and reasoning in
Gray v. Stiles
of much greater force, since the petition averred that the indebtedness of the Territory and of the several counties of the Territory and particularly of “D” county had already reached, if they did not exceed, the 4 per cent, limit prescribed by the laws of the United States, that is, by the federal statute of 1886, by which all indebtedness of any municipality in any territory is rendered invalid beyond 4 per cent, of the last assessment.
That to avoid said 4 per cent, limit upon the indebtedness of said Territory, and counties respectively, and in order to create further indebtedness of said Territory
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.and of the counties, and to validate debts already incurred in violation of the said statutes above the said 4 per cent, limit, the said increase of 50 per cent, was proposed, and by said board was determined upon, and that the making of such advance was for the purpose of evading the statutory limit of indebtedness as aforesaid.
These declarations of fact having been well pleaded, were, by the demurrer of the defendant, admitted to be true, in as much as they elected, upon the whole face of the petition containing these averments, to stand.
The decision of the district court will be reversed, and the cause will be remanded, with direction for further proceedings in accordance with these views.
Tarsney, J., having presided in the court below, not sitting; Dale, C. J., dissenting; all the other Justices concurring.