Central Pacific Ry. Co. v. Gage

BURNETT, J. 1. These are not taxes levied as an aggregate by the same taxing power. They are composed of different items authorized and levied by separate taxing jurisdictions, either one of which the taxpayer is entitled to contest. The defendant was authorized to collect, not one, but several different taxes each independent of. the others and emanating from a separate source. It is plain that an illegal or void tax levied by one jurisdiction cannot be supported by a regular tax laid by other authorities. The valid tax cannot be made a scapegoat for the invalid one. The plaintiff cannot be cut off from its right to contest the illegal tax by any such procedure. Under such circumstances it is the privilege of the taxpayer to pay the separate taxes which it admits to be due and have the payments applied as tendered: Duvall v. Perkins, 77 Md. 582 (26 Atl. 1085) State v. Hoffman (Tex.), 201 S. W. 653; Iowa R. R. Land Co. v. Carroll County, 39 Iowa, 151; Coit v. Claw, 28 Ark. 516; County of Olmsted v. Barber, 31 Minn. 256 (17 N. W. 173, 944). This distinguishes the case of Julian, Sheriff, v. Ainsworth, 27 Kan. 116, cited by the de [194] fendant. That was a case where the contested tax was part of one levied by the county, while here the objection is to a distinct and several tax levied by a different taxing power. There, it was held that the proper procedure for the plaintiff was to allege the invalidity of that portion of the tax he contested, tender the amount he admitted justly to be due, and sue to enjoin the collection of the invalid portion of the whole tax. Here, it is the privilege of the plaintiff to pay the several independent taxes it admits, and compel their application by mandamus, which is an affirmative remedy. ■ The plaintiff’s right to injunction will arise when the sheriff attempts to collect the supposed illegal, and. separate tax. By accepting the amounts covering the four admitted taxes, no prejudice would have accrued against the defendant’s remedy to enforce collection of the disputed levy. His power as to that remained unimpaired. The judgment of the Circuit Court is affirmed. Affirmed. McBride, C. J., and Benson and Harris, JJ., concur.