Commissioners of Leavenworth Co. v. Lang

The opinion of the court was delivered by Kingman, C. J.: i. Personal sessmentfnmlyVe enjomed. The district court overruled a demurrer to the petition, and from that ruling plaintiffs in error bring the caseto this court. Erom the petition we learn these facts: That Lang returned a true and correct list of his personal property to the assessor, amounting to $1,185. The county board, without any notice to Lang, and without any testimony, and without any cause, increased the amount of the assessment from $1,185 to $8,000. The whole amount of his personal property was contained in the list furnished by him. The power to correct the assessment of personal property is found section 65 of the tax law, and this section requires notice to the party to be affected; and the board is not authorized to proceed without the notice. Their action in the premises was clearly invalid. Defendant, when he learned of the action of the board in December, moved the board to correct their error. Failing there, he paid the taxes he was justly chargeable with, and obtained an injunction to stop the collection of the illegal portion of the tax. This he was entitled to. Whatever diversity existed in the decisions as to the propriety of granting injunctions in such cases, the right to do so in this State is settled by our statute. Section 253 of the code of civil procedure is as follows: “ An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of amy illegal tax, charge, or assessment, or any proceeding to enforce the same.” Whatever doubt previously existed about the process of injunction as a remedy to prevent the collection of an illegal tax is removed by this section. It does not change the rights of the partiesit gives a new remedy to [288] enforce the rights of the citizen. The petition shows the tax enjoined to have been illegal, and that warrants had been issued and put in the hands of the proper officers to enforce the collection of the same. a. petition- its averments. A point was made by the counsel for the plaintiffs in error that theré was no averment in the petition that Lang had any property out of which the taxes could have been made, and theref°re he was not entitled to an injunction. There are expressions in the petition sufficiently showing that he had property out of which the taxes could have been made; but any such averment was unnecessary. He stood charged with an unjust and illegal tax. He had under the statute a right to relieve himself of that charge, whether he had property or not. His right to the remedy did not depend upon the extent of his possessions. The plaintiff below having shown that he was injured and the law having afforded him a definite remedy, it was right for the court to grant the relief as it was done in this case. The judgment is therefore affirmed. Valentine, L, concurring. Brewer, J., not sitting in the case.