* Corpus Juris-Cyc. References: Injunctions, 32 C.J., p. 304, n. 31 New. During the latter part of the year 1920, certain petitioners filed a petition for the creation of a drainage district, under chapter 197 of the Laws of 1912. Commissioners were appointed to make a preliminary examination of the matter, and the commissioners employed an engineer to make a survey, under the provisions of this chapter. On the hearing, a drainage district was not created, but the scheme was abandoned. Thereafter the drainage commissioners certified an expense account *Page 572 under the act to the county drainage board, and thereafter the county drainage board certified the expenses to the board of supervisors, requesting that an acreage tax be levied on the lands embraced in the proposed district; and the board of supervisors levied an acreage tax of one dollar and thirteen cents per acre.
The bill in this case was filed to prevent the sheriff from selling the lands of the complainants under the said acreage tax order. The bill alleged that, when the certificate of indebtedness, incurred in the preliminary service, etc., was presented to the county board of drainage commissioners and approved by them, a certiorari was taken by certain of the property owners to the circuit court from the order approving such certificate of indebtedness, and the suit had never been disposed of in the circuit court, but was still pending at the time of the filing of the injunction. That allegation in the bill was denied by the answer filed by the appellants. The bill further alleged that, when the acreage tax was levied upon the lands of the persons owing the lands in the district, an appeal was taken to the circuit court, and that the judgment in the circuit court was that the judgment of the board in levying the said tax was reversed and said order annulled, so far as it affected the lands of those appealing in that cause, but no other. The answer while admitting this allegation, asserted that an appeal was taken from the judgment of the circuit court and was undisposed of. The original bill was filed against the sheriff and a part of the holders of certificates of indebtedness, and an injunction was prayed for against the sheriff alone. A preliminary injunction was issued against the sheriff alone prohibiting his making the sale under the acreage tax.
The holders of certificates of indebtedness who were made defendants to the suit filed an answer contesting the rightfulness of the issuance of the injunction, and seeking to make their answer a cross-bill, in which cross-bill they sought to recover damages for the wrongful suing out of the injunction, and for judgment against *Page 573 the injunction bond for the amount of their indebtedness. The sheriff did not answer. The complainants filed a motion to be permitted to dismiss their bill as against the appellants and proceed against the sheriff alone, which motion was sustained by the court. The appellants sought then to be permitted to file an answer in the name of the sheriff, contesting the injunction, which was refused by the court, and the bill was dismissed against the appellants here without prejudice to their rights, and the court below then permitted the complainants in the injunction suit to take a decree pro confesso against the sheriff and a final decree thereon making the injunction perpetual, from which order the appellants have appealed, and insist under the appeal that they were necessary parties defendant to the suit, and that they should have been permitted to litigate the issues in the name of the sheriff although they may not have been necessary parties.
The appellee justifies the decree below on the theory that the judgment of the court below was correct, because the appellants were not necessary parties and their rights are not precluded; and also upon the theory that an acreage tax is unconstitutional, being in conflict with section 112 of the state Constitution, and also in conflict with the Fourteenth Amendment of the Constitution of the United States, in that the tax imposed taxes on the property of the complainants without due process of law. Appellee also contends that the appeal from the order of the board of supervisors assessing the acreage tax was an adjudication that the said tax was unlawful, and, being reversed as against some of the parties, could not be enforced against the others without a reassessment. Appellee also attacks the drainage act as being unconstitutional, in that it undertakes to confer appellate jurisdiction upon the chancery court. Without deciding whether the appellants were necessary parties in the court below, we think the court should have permitted them to litigate the issues in the name of the sheriff on *Page 574 giving bond to protect the sheriff from expenses and other liabilities.
We do not undertake, in this opinion, to pass upon the constitutional questions here involved, because, in our view, these matters should be heard by parties litigant whose rights may be affected by the judgment rendered on the final disposition of the cause.
The questions presented for decision are not so clear and free from difficulty that the court would feel warranted in proceeding to the decision of them without the benefit of argument of counsel of the parties whose interest may be affected, and without the decision of the court below upon such questions. We reserve all the questions for further consideration on the final disposition, should an appeal be made therefrom, except that the complainants should have been permitted to defend the suit in the court below. The injunction will be retained until the final hearing in the court below, and the judgment will be reversed and the cause remanded for further proceedings in accordance with this opinion.
McGOWEN, J., took no part in the decision of this case.
Reversed and remanded.