City & County of Denver v. Hallett

Mr. Justice Gajbbert delivered the opinion of the court: Where it is sought to restrain the collection of a tax which it is alleged is illegal, and it appears that a part is legal, the amount of which can be ascertained with reasonable certainty, equitable relief will not be granted unless it is made to appear that the legal tax was paid or tendered to the proper official.—Breeze v. Haley, 11 Colo. 351; Insurance Co. v. Donner, 24 Colo. 220; City of Denver v. Kennedy, 33 Colo. 80; City of Denver v. Londoner, idem, 104; Hallett v. U. S. Security & Bond Co., 40 Colo. 281; People’s Nat’l Bank v. Marye, 191 U. S. 272; State R. R. Tax Cases, 92 U. S. 575; Book 23, L. C. P. Co., 663; Merrill v. Humphrey, 24 Mich. 170; Morrison v. Hershire, 32 Iowa 271. This proposition rules the cases at bar. It is apparent from the respective complaints that included in the substituted schedules returned by the assessor, items were included as returned by the plaintiffs. Some of these were certainly subject to taxation and the amount of taxes thereon would be legal and could readily be ascertained. It appears from the averments of the complaints that plaintiffs [137] have not paid or tendered to the proper officer the amount of such taxes. Before plaintiffs áre entitled to equitable relief they must do that justice which is necessary to enable the court to hear them by paying or tendering such taxes as are conceded to be due, or can be seen to be due-, or it is evident are due, whether conceded or not. It is not sufficient to say in their complaints that they are ready and willing to pay whatever may be found due. The .defendant cannot be prevented from collecting the taxes regarding which there is no contest by lumping them with those which are contested. This rule should be rigidly enforced.—Railroad Tax Cases, supra; People’s Nat’l Bank v. Marye, supra. The fact that the revenue act of 1901 is claimed to be unconstitutional does not change the rule applicable to these cases. If invalid, then the revenue acts which it purported to supersede are still in force and under those the plaintiffs would be required to first pay, or tender, to the proper officer the taxes regarding which there can be no contest béfore they would be entitled to a judgment enjoining the collection of the alleged illegal taxes. Plaintiffs can only complain of the taxes in excess of those which could have been lawfully levied upon the items returned by them, but the acts by which this excess was brought about do not relieve them from paying or tendering those which it is clear they are legally bound to pay, for the reason, as stated, that the. taxes as finally levied embrace items in their respective returns, some of which, at least, were subject to taxation. The alleged illegal acts of the assessor did not render void ,the taxes on these items. The statements in the respective complaints that plaintiffs had not paid or tendered the taxes which it is apparent they should pay or tender, render them fatally defective and incapable of amendment so as to state causes of action. [138] It is, therefore, unnecessary to consider the other questions raised hy appellants. It must not he understood, however, that, in passing them or from anything said, plaintiffs would he entitled to equitable relief if they had paid or tendered the taxes regarding which there can he no dispute. See Ins. Co. v. Bonner, 7 Col. App. 97; Hallett v. Board of County Commrs., 40 Colo. 308; State Railroad Tax Cases, supra. The judgments of the district court are reversed and the causes remanded, with directions to sustain the demurrer to each complaint and dismiss the actions at the cost of the respective plaintiffs. Reversed and remanded with directions. Chief Justice Steele and .Mr. Justice Hill concur.