Northern Pacific Railroad v. Patterson

Blake, C. J. This action was commenced by the appellant to obtain an injunction to restrain the county treasurer of the county of Gallatin, in this State, from selling certain lands, blocks, and lots, by reason of the taxes which have been levied thereon in the year 1889, or collecting the same, and also a decree that said taxes should be adjudged void. The complaint alleges that the plaintiff is a corporation under the Act of Congress entitled. “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the northern route,” and approved July 2, 1864. The second and third sections of this act are set forth, and describe the public lands which are granted to the railroad by the United States. The particular acts of the plaintiff are then alleged, showing that all the conditions of the statute have been performed by the corporation. “The lands described in the schedule marked ‘Schedule A’ .... are situated on and within the distance — 101 — of forty miles of the plaintiff’s said line of railroad, as the same was so definitely fixed and described in the plat thereof, duly filed with the commissioner of the general land office, as aforesaid, and that said lands are in the county of Gallatin, Montana.” It is further alleged that “the lands so granted to said plaintiff, . ... if any there are, in said county, have never been segregated from the public lands, have never been identified, and that the boundaries .... have never been ascertained or determined.” It is also alleged that the officers of the United States have “ failed and refused to certify said lands .... to the plaintiff, or to satisfy any lands in the county of Gallatin to said plaintiff, .... but have refused and failed to certify or patent said lands • solely because said lands have not been identified as lands passing to said plaintiff, under said grant, as hereinbefore alleged.” It is further alleged: “In the year 1889, the officers of the said county of Gallatin authorized by the laws of the Territory of Montana to assess property therein for the purposes of taxation, and to levy taxes thereon, pretended to assess all the said parcels of land described in the Schedule A .... to the said plaintiff for the purposes of taxation, and pretended to levy certain taxes thereon, to wit, the territorial, county, town, and other taxes for that year; . . . . that all the said .... taxes were and are illegal and void for the reason that said lands so taxed were exempt from taxation and ¿ssessment by the Territory of Montana.” The second cause of action describes certain lots and blocks in the town of Moreland, county aforesaid, and contains the following allegations: “That prior to the first Monday in August, A. D. 1889, said plaintiff furnished a list of said lots under oath, as required by law, to the assessor of said Gallatin County; that said assessor did not assess said lots and blocks of land as required by law, and did not determine and fix the true value of such lots and blocks, and enter or cause to be entered the same opposite such lots and blocks, as required by law, but assessed and valued all of said lots and blocks together as one parcel of land; that said assessor did not assess said lands at the valuation returned by said plaintiff, but increased the same, and did not place upon said assessment roll the valuation of said lots and blocks as returned by said plaintiff; but — 102 — said assessor did wrongfully and falsely take and subscribe an oath, and attach the same to the said assessment roll, wherein and whereby said assessor did swear that the value of said property was returned in said assessment roll as set forth in said statement made and returned to said assessor by said plaintiff.” The third cause of action relates to certain lots and blocks of land in the town of Gallatin, county aforesaid, which are described in Schedule C. The other allegations are similar to those which have been recited respecting the second cause of action. It is also alleged that the county treasurer, the respondent, has advertised the foregoing lands, blocks, and lots for sale, through the failure of the appellant to pay said taxes. A demurrer to each cause of action was sustained by the court below, and judgment was afterwards entered against the plaintiff The statute which was in force when the assessments that are complained of were made provides as follows: “See. 22. The board of county commissioners of each county shall constitute a board for the correction of the assessment roll and the equalization of the assessed value of property, and on the third Monday in the month of September of each year said board shall meet at the office of the county clerk at the county seat, and may adjourn from time to time as deemed necessary. Public notice of the time and place of the meeting of said board shall be given by the county clerk by publication for, at least, two successive weeks, in a newspaper published in said county, if there be one; otherwise, by notices posted in five public places immediately prior to the meeting of said board of equalization ; but no notice of an adjourned meeting of said board shall be required. Any person feeling aggrieved by any valuation or amount of property listed, or by any other fact appearing on such assessment, may apply to such board for the correction thereof; and if, in the opinion of said board, any valuation is too high or too low, as compared with other valuations by the assessor of similar classes of property, it may equalize the same; but if such valuation results in any increase, the party affected thereby shall be given reasonable notice of the intention to increase such valuation, with opportunity to appear, which notice may be sent by mail, with postage thereon prepaid.” (Stats. 15th Ex. Sess. p. 92.) — 103 — It appears from the transcript that the plaintiff elected to stand upon its complaint, and declined to amend the same, when the demurrers were sustained. We must assume that every fact which is material to its demand for equitable relief has been pleaded. It is clearly shown that the appellant never applied to the board of equalization, created by the statute, for any redress, or sought any remedy, until this action was commenced, February 17, 1890. The brief of the appellant considers the propositions relating to the lots and blocks in the towns of Moreland and Gallatin, and says: “ It is conceded by the company that these lands are not exempt from taxation, and the sole question arising with reference to each is, whether the defects in the levy of the taxes are such as to render the taxes void, and entitle the plaintiff to the relief prayed for.” The complaint does not allege that the appellant has paid or tendered any sum of money to meet its liability to taxation upon the property to which the title is admitted. The discussion has embraced matters of national as well as local importance concerning the effect of the Act of Congress incorporating the appellant, and the ownership of the lands mentioned in Schedule A, but we do not express an opinion thereon. The determination of one inquiry regarding the sufficiency of the complaint restricts this investigation. In German Nat. Bank v. Kimball, 103 U. S. 732, Mr. Justice Miller says: “We have announced more than once that it is the established rule of this court that no one can be permitted to go into a court of equity to enjoin the collection of a tax until he has shown himself entitled to the aid of the court by paying so much of the tax assessed against him as it can be plainly seen he ought to pay; that he shall not be permitted, because his tax is in excess of what is just and lawful, to screen himself from paying any tax at all until the precise amount which he ought to pay is ascertained by a court of equity; and that the owner of property liable to taxation is bound to contribute his lawful share to the current expenses of the government, and cannot throw that share on others while he engages in an expensive and protracted litigation to ascertain that the amount which he is assessed is or is not a few dollars more than it ought to be; but that before he asks this exact and scrupu — 104 — lous justice he must first do equity by paying so much as it is clear he ought to pay, and contest and delay only the remainder. (State Railroad Tax Cases, 92 U. S. 575.) This bill attempts to evade this rule by alleging that the tax is wholly void, and therefore none of it ought to be paid.” The case of Northern Pac. R. R. Co. v. Carland, 5 Mont. 146, was brought by the plaintiff in this action to restrain the county treasurer of Custer County from collecting a tax which had been assessed upon “twenty miles of railroad and rolling stock.” The complaint conformed to the doctrine of German Nat. Bank v. Kimball, supra, and alleged that the tax upon the personal property of the corporation had been paid, and “that the plaintiff, before the commencement of this action, appraised at its true vaíue the rolling stock on said twenty miles of road, and has tendered to the defendant the taxes thereon, amounting to the sum of four hundred and forty dollars, and brings the money into court.” (P. 153.) Upon this ground alone we can sustain the ruling of the court below upon the demurrer to the second and third causes of action. If we concede the position of the appellant that the lands which are described in the Schedule A are not subject to taxation, and that it cannot be required to pay or tender any sum of money in payment of any tax thereon, we assert that the statute, supra, has prescribed an ample legal remedy, which must be exhausted before the equitable powers of the court are resorted to. We have seen that no action of this nature has been had before the board of equalization of the county of Gallatin, and this statutory proceeding has been ignored. A reference to the authorities leads to the conclusion that this conduct of the appellant compels us to decide adversely to its appeal. In Dundee etc. Investment Co. v. Charlton, 13 Sawy. 25, Mr. Justice Deady said: “But on the hearing the defendant made the objection that, conceding the error an injustice of the assessor, the remedy of the plaintiff in the first instance was an appeal to the county board of equalization to correct the same, and that, unless it appears that it has resorted to this means of redress without avail, it cannot have relief in a court of equity. . . . . But the plaintiff having neglected to avail itself of this means of redress cannot maintain a suit for relief in this court. — 105 — It is no excuse for this neglect that the board of equalization, as well as the assessor, were committed to the rule of taxing mortgages, which were generally owned by non-residents, at their face or cash value, and the property in lands, which generally belonged to residents of the county, at much less than such value. Notwithstanding this, it was the duty of the plaintiff, if dissatisfied with the assessment, to pursue the mode prescribed by the statute relating to assessments for its correction, when, if it failed, it might have taken the matter before the Circuit Court of the State on a writ of review (Rhea v. Umatilla Co. 2 Or. 298), or brought this suit to restrain the county from collecting the illegal portion of the tax.” In Bourne v. Boston, 2 Gray, 494, Mr. Justice Bigelow says °. “ The plaintiff was not legally taxable for the property held by him as trustee, but he was taxable for the property of his ward in the city of Boston, and therefore a portion of the tax which in this action he seeks to recover back was rightly assessed to him. This would seem to bring the case within the principle,, now well settled by the authorities, that where a person is liable to taxation for personal and real estate in a city or town, his sole remedy, for an overtaxation caused by an excessive valuation of his property, or by including in the assessment property of which he is not the owner, or for which he is not liable to taxation, is by an application to the assessors for an abatement.” In Rio Grande R. R. Co. v. Scanlan, 44 Tex. 649, Mr. Justice Moore in the opinion says: “But if the law was in force, and appellant’s property was being assessed under it, from the petition it does not appear that the appellant had taken the proper steps to secure a correction of the assessment if it was erroneous or excessive, or had placed itself in the proper attitude to ask the interposition of a court of equity for relief if it was in danger of suffering injury therefrom. Although the tax may have been illegally assessed, and the action of the sheriff in collecting it unauthorized, it does not follow that a court of equity will in all instances interpose to stay his action. A party asking for this extraordinary relief must have used all proper means to obviate the necessity of appealing to the court, and must not himself be in default.” In O’Neal v. Virginia & M. Bridge Co. 18 Md. 1; 79 Am. Dec. 669, the court says: “The — 106 — ground of the equity is that the property is not taxable at all, and that the assessment had not been made and returned according to law.....The answer shows that they had knowledge of the assessment, and no reason is assigned for their not going before the commissioners to have the supposed errors corrected. .... We have no power to make the correction for the benefit of the public, which the commissioners might have done, and, if the courts of equity were to interfere in such cases, parties taxed, instead of going before the proper tribunal to have errors corrected, and thereby, while protecting themselves, secure to the State or county their just demands against the property, would wait until the time had elapsed, and then by proceeding in equity escape altogether.” Mr. High, in his work on Injunctions, says: “The fundamental principle applicable to such cases is that a court of equity is not a court of errors to review the acts of public officers in the assessment and collection of taxes, nor will it revise their decision upon matters within their discretion, if they have acted honestly. Where, therefore, a particular manner is provided by law, or a particular tribunal is designated for the settlement and decision of all errors or irregularities on behalf of persons dissatisfied with a tax, they must avail themselves of the legal remedies thus prescribed, and will not be allowed to waive such relief and seek in equity to enjoin the collection of the tax. And this upon the ground that where one has a complete and ample remedy at law, and slumbers upon his rights, he is estopped from invoking the aid of equity.” (Vol. 1 [2d ed.], § 493, and cases cited. See, also, Stanley v. Supervisors, 121 U. S. 535; Palmer v. McMahon, 133 U. S. 660; Merrill v. Gorham, 6 Cal. 41; Oregon etc. Bank v. Jordan, 16 Or. 113; Stewart v. Maple, 70 Pa. St. 221; Brooks v. Shelton, 47 Miss. 243; Davis v. Macy, 124 Mass. 193; Preston v. Johnson, 104 Ill. 625; Tripp v. Merchants’ Mut. Ins. Co. 12 R. I. 435; Cooley on Taxation, 527-529; 2 Desty on Taxation, 661-663.) In Northern Pac. R. R. Co. v. Carland, supra, it is stated that the corporation “ applied to the board of county commissioners of said county at their December session, 1881, to remit the tax” complained of, “which the board refused to do.” It is apparent that the complaint in that case contained the — 107 — allegations which are necessary and proper according to the principles laid down in the authorities supra, and therefore this court held that the appellant was entitled to the equitable remedy which was prayed for. And it is equally clear that the case at bar does not fall within the doctrine which has been upheld, and that the complaint lacks the essential averments which require courts to interpose the writ of injunction. The judgment is therefore affirmed, with costs. Harwood, J., and De Witt, J., concur.