Breeze v. Haley

Stallcup, C. The injunction proceedings of the plaintiff cannot be maintained. He has shown no equity to warrant the same. He had a plain, adequate remedy for the correction of any errors in the enlistment and assessment of his property for the year 1884, by application to the board of county commissioners, sitting as a board of equalization, in July. People v. Lothrop, 3 Colo. 465; Price. v Kramer, 4 Colo. 546; State Railroad Tax Case, 92 U. S. 575; Cooley, Tax’n, 536. He has had, and still has, a plain, adequate remedy for any wrong that may have been done to him in the listing and assessing of his property for the year 1884, under the provisions of our statutes vesting the board of county commissioners with power almost unlimited to correct any errors that may occur in an assessment, either before or after the payment of taxes thereon. Sec. 2825, p. 823, Gen. St. 1883; sec. 1 of Act, p. 317, Sess. Laws 1885. It was the plaintiff’s duty, by himself or his agent, to make and return to the assessor a list of his property liable to taxation, by the 20th day of May, and upon his failure so to do, it became the duty of the assessor to make out such list for such delinquent. Sec. 2841, p. 827, Gen. St. 1883. The plaintiff failed in his dut3r in this regard, so the act of the assessor in listing and assessing the same was but the performance of his duty. The plaintiff asserts that in so doing the assessor listed, charged and assessed him with more property than he owned in the county. If so, he had a plain, adequate remedy under the statutes cited. The plaintiff failed to apply to the board of equalization for a correction of errors in his assessment, and failed to make any satisfactory showing before the board of county commissioners, or to produce any evidence of errors in his [13] assessment; and even down as late as the October meeting of 1886, after solicitation on the part of the commissioners to produce evidence of errors, he failed to appear or to produce any evidence, and has constantly ignored the remedies provided for the wrongs of which he complains. It is urged by counsel for plaintiff that, as the assessor did not complete plaintiff’s assessment for delivery by June 25th, as provided by section 2856 of General Statutes, but did make it out and deliver it during the first meeting of the board in July, that it was thereby without validity. There was no injury caused by the delay, and we think there was a substantial compliance with the statute, so that its objects and purposes were sufficiently met. Burlington & M. R. Co. v. Saline Co. 11 N. W. Rep. 855. It is also urged by plaintiff’s counsel that it is admitted by the state of the pleadings that there were but two commissioners of the county at the time of the meeting, October 6, 1884. This was not alleged as a ground of complaint by plaintiff, and, in any event, only applies to the day mentioned, and, as it does not appear that the plaintiff’s rights were in any manner prejudiced by the circumstances, it must therefore be treated as immaterial to the decision of this case. The fact that the weather, feed and market were unfavorable at the time the defendant proceeded to distrain the horses and cattle of plaintiff for the tax seems to be relied upon as a ground for sustaining the injunction. The position is untenable. Besides, the plaintiff, by his conduct and requests, in a great measure induced the delay to this unfavorable time. The injunction should be dissolved, and the order denying the motion to dissolve reversed. Rising and Macon, 00., concur. Per Curiam. For the reasons assigned in the foregoing opinion the order of the district court denying the [14] motion to dissolve the injunction is reversed, and the cause remanded, with directions that the injunction be dissolved, and the cause dismissed. Reversed.