A. H. Stange Co. v. City of Merrill

MaRshall, J. Several questions are argued in the briefs of counsel which need not be discussed at any great length. The case, viewed from the plain import of the complaint and conceded principles of law, comes down to a very narrow compass. It is conceded the allegations of the complaint show that plaintiff’s property was illegally and inequitably assessed, and consequently the taxes complained of are likewise illegal and inequitable. It is further conceded that equity will not interfere to prevent the collection of an illegal personal property tax, but will leave the party aggrieved to the remedy afforded by sec. 1164, Stats. (1898), or his common-law remedy of paying the taxes under compulsion or protest and suing at law to recover back the money. It is further conceded that since there is at best but one cause of action stated in the complaint, on the question of whether the same is a good cause of action, the fact that the purpose of the pleader was to secure relief from personal — 518 — property taxes as well as to remove the apparent lien of taxes on realty is immaterial. It is sufficient if the pretended canse of action is good as to the tax on the latter. It mnst further he conceded that the complaint abundantly shows that respondent had personal property within the jurisdiction of the treasurer subject to seizure by him for payment of all the taxes in question, and that when the action was commenced he would have proceeded to make such seizure had the court not intervened to prevent it, and that the action was commenced in part to prevent the enforcement of the taxes. It follows in any view, respondent, when the action was commenced, was competent to pay the taxes under protest pursuant to sec. 1164, Stats. (1898), and to obtain redress by an action at law to recover back the money. Counsel is in error as to its being necessary in order to secure the benefit of sec. 1164 for the person aggrieved to wait until there is duress of property before making payment of the tax. Independently of the statute, if one pays a tax involuntarily, as to relieve his property from a levy existing thereon, or to prevent a threatened and impending levy, he may sue to recover back the tax. No statute was ever considered necessary for that purpose. Matheson v. Mazomanie, 20 Wis. 191; Parcher v. Marathon Co. 52 Wis. 388, 9 N. W. 23; Ruggles v. Fond du Lac, 53 Wis. 436, 10 N. W. 565; Western Ranches v. Custer Co. 89 Fed. 571. It will be observed that an action based on involuntary payment of an illegal tax was held to be maintainable in this state before the passage of the law of 1810, now embodied in the section referred to. The rule in respect to the matter, supported by many authorities, is thus stated in 27 Am. & Eng. Ency. of Law (2d ed.) 762: “Where the payment is involuntary, protest is not necessary, in the absence of statute, to entitle the taxpayer to recover taxes paid under compulsion. And where illegal taxes — 519 — are voluntarily paid, a protest will not enable tbe taxpayer to recover, unless it is provided by statute that a recovery may be bad where tbe payment was under protest.” That rule is fully discussed in Western Ranches v. Custer Co., supra. The statute under consideration was doubtless passed for tbe very purpose of permitting a person aggrieved by illegal taxes assessed against bis property to prevent undue prejudicial enforcement thereof, by paying tbe same under protest, notifying tbe officer at tbe time of such payment that be claims tbe taxes to be illegal and will seek bis remedy to recover back the money. This court said in tbe first case decided after passage of tbe law in question: “Should tbe officers of tbe town attempt to . . . assess a' tax,wholly unauthorized and illegal . . . the plaintiffs will have their action at law to recover back tbe money if paid under protest or on levy or distress of personal property. . . .” Judd v. Fox Lake, 28 Wis. 583, 587. Thus recognizing tbe statutory right as distinct from tbe common-law right. That was repeated in Sage v. Fifield, 68 Wis. 546, 32 N. W. 629. So in any view there can be no question but that tbe respondent in this case was so circumstanced at tbe time tbe action was commenced that it might have paid tbe taxes complained of and thereby extinguished tbe cloud upon its realty, and maintained an action against tbe appellant city to recover back tbe money. It follows that we have this plain proposition for decision : Notwithstanding tbe opportunity afforded to a property owner, as indicated in the foregoing, must be take advantage thereof or may be elect whether be will do so or invoke an equitable remedy to remove tbe illegal tax lien upon bis realty ? Tbe learned counsel for appellants invoke Keystone L. Co. v. Pederson, 93 Wis. 466, 67 N. W. 696, as conclusive in favor of appellants on that question. It seems to tbe court — 520 — the ease is not in point. It is merely to this effect: If a taxpayer neglects to pay the taxes upon his realty or personalty until seizure of the latter by the treasurer under his tax warrant, such property owner’s only remedy to regain his property and at the same time save his rights is to pay the tax under protest as provided by sec. 1164 aforesaid, and then sue at law to recover back the money. Whether the property owner may proceed in advance of any levy upon his property to invoke equity jurisdiction to cancel the apparent Ken upon his real estate created by the illegal tax and in the meantime, as an incident to the action in that regard, prevent proceedings on the part of the treasurer to levy upon his personalty for the purpose of collecting the tax and prevent a return thereof as delinquent, is quite another question. Counsel for appellants freely conceded on the oral argument that the court has often said equity will interfere to remove an illegal tax lien on realty before the return of the tax as delinquent, but it is insisted that the court has not so held where it appeared that there was personal property subject to seizure, affording the person taxed opportunity to take advantage of the remedy afforded by sec. 1164. That contention rests on the supposition that opportunity for the treasurer to seize personal property for a tax is essential to payment under protest, which is incorrect. There is nothing in such section suggesting that it is confined to such a situation. One may, as before indicated, pay his tax on realty to prevent its being returned as delinquent, protesting that he does so for such purpose and that he claims the tax to be illegal and thereby secure a legal remedy to test the question of the illegality. So whether there was or was not personalty subject to levy and upon which a levy was impending is immaterial. The foregoing brings us to this: Was the removal of the illegal tax lien on the realty created merely by extension of — 521 — tbe tax upon tbe tax roll and delivery of tbe roll to tbe treasurer witb tbe proper warrant attached for tbe purpose of enforcing tbe tax, a proper subject for equitable cognizance? Tbis court bas decided that in tbe affirmative on several occasions, tbe following being significant instances as applied to tbe facts of tbis case: Hamilton v. Fond du Lac, 25 Wis. 490; Judd v. Fox Lake, 28 Wis. 583; Milwaukee I. Co. v. Hubbard, 29 Wis. 51; Sage v. Fifield, 68 Wis. 546, 32 N. W. 629. In tbe first case cited tbe action was brought before a return of tbe tax, as in this instance, and it was held that tbe action would lie. It should be noted that personal property, before tbe action was commenced, bad been levied upon by tbe treasurer. Tbe complaint was challenged for insufficiency. Tbe action was sustained, tbe court bolding that it was competent for equity to deal witb tbe matter for tbe purpose of removing the cloud on tbe title to tbe realty. In Judd v. Fox Lake, supra, tbe action was commenced as in tbis case, and it was sustained as one to remove a cloud on title to realty, tbe court saying, in substance, that in case of tbe assessment of an illegal tax upon realty tbe mere extension of it upon tbe tax roll affords tbe property owner tbe right to a suit in equity to remove tbe cloud upon bis title. In Sage v. Fifield, supra, language to tbe same effect was used. In Leaser v. Ashland, 89 Wis. 28, 61 N. W. 77, tbe same doctrine was announced, and it was held, under facts similar to those here in respect to illegal action of tbe board of review, that, though tbe matter might be dealt with by a cer-tiorari action, equity would interfere, since the right to tbe other remedy was not absolute. In that case tbe point was made that tbe action was prematurely brought; that there was no apparent cloud upon tbe plaintiff’s title, because tbe tax proceedings bad not proceeded so far as to make tbe tax a — 522 — lien on tbe realty, the tax roll not having been yet delivered to the city treasurer. To that the court answered: “It is beyond question that a court of equity has jurisdiction, not only to set aside and cancel a proceeding that is already a cloud upon the plaintiff’s title, but to enjoin one which is being prosecuted and will, if not prevented, result in creating a cloud upon his title. ... A court of equity will . . . enjoin a proceeding in a case like the present, which will necessarily create such cloud. The tax or assessment, in an uncanceled state, has a tendency to throw a cloud over the title.” The law seems to be so firmly established, as indicated, that no further discussion would seem to be warranted. On the question of whether the cause of action was complete without pleading an offer to pay the just amount of the tax charged to the property, little need be said. It is alleged that plaintiff was ready and willing to pay its just proportion of the tax as soon as the same should be ascertained, and that it was unable to determine the matter without judicial assistance. That is certainly sufficient. Since a good cause of action, as we have seen, is stated in the complaint to remove the void tax lien upon the land, it was proper to preserve the stains quo as to that branch of the case, pending the litigation, by a temporary injunction. It is, as a rule, competent for and the duty of a court of equity to so control a situation involved in litigation as to enable it to efficiently grant the relief sought by the final decree. An interim injunction, as in this case as to the realty, is very common and has been allowed almost as a matter of course in case of strong probability of recovery by the plaintiff, defendant being protected by a bond against probable injury by reason of the injunction, in case of plaintiff failing to recover, where such protection seemed necessary. The general rule on the subject laid down in Valley I. Works Mfg. Co. v. Goodrick, 103 Wis. 436, 78 N. W. 1096, applies to cases of this sort as to the realty. It will be seen — 523 — by an examination of such cases, to which reference bas been made, that in every instance there was a temporary injunction. Inasmuch, as the action is not maintainable so far as the purpose thereof is to nullify taxes assessed upon personal property and to prevent the collection thereof, it is considered that on the motion to vacate the injunetional order it should have been so modified as not to apply to such taxes. It has recently been held that on such a motion it is error not to modify the order in so far as the same is clearly erroneous, even though it be right as regards refusal to vacate entirely. Cawker v. Milwaukee, 133 Wis. 29, 113 N. W. 419. By the Court. — The order overruling the demurrer is affirmed. The injunetional order is so modified as not to apply to the personal property tax, and as so modified is affirmed. Costs in this court are allowed in appellants’ favor to the extent of clerk’s fees and taxable disbursements for printing. No costs are allowed in respondent’s favor.