Hallett v. Board of County Commissioners

Mr. Justice Gabbert delivered the opinion of the court: The grounds upon which counsel for plaintiff rely in support of their contention that the assessments are illegal and void in the first three cases, are, that they were the product of fraud, prejudice, bias and ill-will of the assessor, and at the time of making them, he had no knowledge, reason to believe, or evidence that plaintiff was the owner of any money, notes or credits subject to taxation. In the last ease it is claimed the assessment is illegal and void because arbitrarily made by the assessor, without reason to believe that plaintiff was the owner of the property assessed. It is also claimed, that the assesment in each case is illegal because plaintiff, for the years mentioned, was. not the owner of any property subject to taxation of the character described except the amount admitted in the first case, and that-the assessments in controversy in the second and third cases are illegal and void because all notes of which the plaintiff was the owner in 1898 and 1899 were secured by mortgages on real estate, and not taxable. In each case it is also claimed there was an unjust discrimination against plaintiff, and that the respective assessments were not predicated upon “value” but upon “amount.” In brief, counsel for plaintiff contend the respective complaints allege facts from which it appears the assessments were fraudulent; that he did not possess property of the character described subject to taxation in the amount scheduled by the assessor; that in the years 1898 and 1899 he possessed no notes or other evidences of indebtedness except such as were secured by mortgages on real estate; that the — 315 — assessor unjustly discriminated against him in valuing the property which he scheduled, and that such assessments were based upon “amount” instead of “value.” It will be observed that neither of the complaints contain any averments with respect to any attempt on the part of the defendants to collect taxes levied upon the assessments in controversy, but that the only averments on this subject are to the effect that the board and treasurer claim the right to collect these taxes. It will also be observed that neither of the complaints contains any statement of issuable fact’s from which it can be said to appear that the plaintiff will suffer irreparable injury because of the assessments complained of, or that he has not an adequate remedy at law, to protect him from the consequences of the assessments in question, if they are illegal and void, as contended. Many authorities are cited by counsel for plaintiff which hold that collection of an illegal tax will be enjoined; but illegality alone is not sufficient to invoke the interposition of a court of equity to enjoin the collection of a tax. In addition it must appear, as a general rule', -that its collection will result in irreparable injury to the person against whom it is enforced, or lead to a multiplicity of suits, or that he has no adequate remedy at law to redress the wrong which will result from the enforcement of its collection against him.- — State Railroad Tax Cases, 92 U. S. 575; Boyd v. Selma, 96 Ala. 144; Dodd v. City of Hartford, 25 Conn. *232; Green v. Mumford, 5 R. I. 472; DoWs v. City of Chicago, 11 Wall. 108; Messeck v. Board of Supervisors, 50 Barb. 190; Hannewinkle v. Georgetown, 15 Wall. 547; Odlin v. Woodruff, 31 Fla. 160; Loud v. City of Charlestown, 99 Mass. 208; Sayre v. Tompkins, 23 Mo. 443; Barrow v. Davis, 46 Mo. 394; McPike v. Pew, 49 Mo. 525; Henry v. — 316 — Gregory, 29 Mich. 68; Youngblood v. Sexton, 32 Mich. 406; Ritter v. Patch, 12 Cal. 298; Conley v. Cheddic, 6 New. 222; Susquehanna Bank v. Board of Supervisors, 25 N. Y. 312; Van Cott v. Board of Supervisors, 18 Wis. 259; City of Highlands v. Johnson, 24 Colo. 371; Ins. Co. v. Bonner, Ib. 220; Ins. Co. v. Bonner, 7 Colo. App. 97; High on Injunctions (4th ed.), § 491. The reasons for this rule have been variously stated by the courts, to the effect that a state cannot exist unless taxes are regularly and promptly paid into its treasury; that a court of equity never assumes jurisdiction where the party invoking its aid may redress his alleged grievances in an action at law; that the levy of taxes is a legislative, and not a judicial function; and that a court can neither make, nor cause to be made, a new assessment if the one complained of be erroneous. In State Railroad Tax Cases, supra, it was held (quoting from the syllabus): “While this court does not lay down any absolute rule limiting the powers of a. court of equity in restraining the collection of taxes, it declares that it is essential that every case be brought within some of the recognized rules of equity jurisdiction, and that neither illegality or irregularity in the proceedings, nor error, or excess of valuation, nor the hardship or injustice of the law, provided it be constitutional, nor any grievance which can be remedied by a suit at law, either before or after the payment of the tax, will authorize an injunction against its collection. “This rule is founded on the principle that the levy of taxes is a legislative, and not a judicial, function, and the court can neither make, nor cause to be made, a new assessment, if the one complained of be erroneous; and also in the necessity that the taxes — 317 — without which the state could not exist should be regularly and promptly paid into its treasury. ’ ’ On these questions the court, at page 614, says: “We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes, but we may say, thát in addition to illegality, hardship or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction, and tliat mere errors, or excess in valuation, or hardship, or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after the payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. One of the reasons why a court should not thus interfere as it would in any transaction between individuals, is, that it has no power to apportion the tax, or to make a new assessment, or to direct another to be made by the proper officers of the state. These officers and the manner in which they shall exercise their functions are wholly beyond the power of the court, when so acting. The levy of taxes is not a judicial function. Its exercise by the constitutions of all the states, and by the theory of our English origin, is exclusively legislative. A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of in whole or in part, without any power of doing complete justice by making, or causing to be made, a new assessment on any principle it may decide to be the right one. In this manner it may, by enjoining the levy, enable the complainant to escape wholly the tax for the period of time complained of, though it be obvious he ought to-jpay a tax, if imposed in the proper manner. ” — 318 — Applying these principles to the case at bar, it appears that the respective complaints do not state a canse-of action, which entitle the plaintiff to the relief prayed. He states no issuable facts from which it is made to appear that he will suffer irreparable injury in the event the collection of the tax for the respective years assessed against him is enforced, nor does it appear from any averments of the complaint that the wrongs of which he complains may not be adequately redressed in an action at law. Besides, our statutes appear to afford a legal remedy. By § 3795, Mills’ Ann. Stats., it is provided that the board of county commissioners shall have power at any regular meeting to rebate, annul or set aside an assessment made by the assessor. We do not wish to be understood, however, as holding that this section is applicable. Counsel for the defendants assert that it is, and this assertion is not controverted by counsel, for plaintiff. It may be that this section is superseded.by § 3795a, 3 Mills’ (Rev.) Stats. By § 3777,» 2 Mills’ Ann. Stats., it is provided that taxes paid which shall thereafter be found to be erroneous or illegal, shall be refunded, without abatement or discount, to the taxpayer. No statement appears in either of the complaints from which it can be deduced that the remedy afforded the plaintiff by this section is not adequate. But counsel for plaintiff contend that the general rule as above announced is not applicable because the assessments attacked are void on account of fraud. If fraud creates an exception, and fraud is pleaded, then the respective complaints still fail to state a cause of action. As we read the authorities cited by counsel, they only go to the extent of holding that equity will enjoin the collection of a tax based on a fraudulent assessment, without regard to the question of an adequate remedy at law; but they — 319 — do not hold that snch a tax will be enjoined without a stowing that the party against whom it is assessed is, or will be, injured thereby. As the foundation of every suit in equity it must appear that the plaintiff has a wrong to redress, which, if not redressed, will result in an injury to him. It does not appear from either of the complaints, that in the present status of the tax proceedings the plaintiff has been, or will be, injured thereby. No attempt has been made by the defendants to collect the taxes in question. All the respective complaints say on this subject is to the effect that the board and treasurer claim the right to collect them; but this is far from stating a case which exhibits an injury to the plaintiff. So far as it appears from the record, he may never be called upon to pay these taxes, nor any steps taken to enforce their collection against him, so that it wholly fails to appear that any wrong has been, or will be, inflicted which should be redressed. — Insurance Co. v. Bonner, 7 Colo. App. 97. Conceding, then, that a tax levy upon a fraudulent assessment is excepted from the general rule as above announced, the. exception only applies to cases where it appears that the party complaining has been, or will be, injured by such assessment and levy. Other questions are argued for defendant in support of their contention that the respective complaints do not state a cause of action, which it is unnecessary to pass upon; neither is it necessary to consider any of the numerous questions argued by counsel for plaintiff in support of their contention that the assessments and the taxes levied thereon are invalid,.because no case is made presenting them. For the reason that the respective complaints do not state facts from which it appears that the plaintiff has been, or will be, injured because of the assessments complained of, and the taxes levied — 320 — tliereon, tlie several judgments in cases Nos. 5150, 5151 and 5Í52 will be affirmed, and the judgment in No. 5220 will be reversed. Reversed. Decision en bcmc. Chief Justice Steele not participating.