Adams v. Southern Railway Co.

58 So. 397 | Ala. | 1912

McClellan, J.

This appeal presents for revision only the action of the court in denying the motion of the respondents (appellants) to dissolve the injunction issued as prayed in the bill. The bill’s theory is that the tax collector of Marengo county is in the act of enforcing, by a sale of property of the complainant (appellee), the collection of an alleged special road tax.— Code, §§ 134, 138; Const,. § 215; Acts Sp. Sess. 1909, pp. 179, 280. It is averred, to state the substance, that, while there appears upon the minute book of the commissioners’ court of Marengo county an order levying a special road tax for the year 1910, apparently the legally expressed purpose of that authorized governmental body, the court, as such, never in fact made the order for the levy; but it was transcribed upon the minutes of that body by the clerk (Code, § 3315) of the probate judge without the term of the court at which the action purports to have been taken. It is, in consequence, alleged that there was no valid levy of the special road tax, the payment of which is sought to be thus enforced. It is further averred that such purported levy of the tax is valid upon its face, and apparently casts the shad-wow of a statutory lien upon complainant’s property; that its property is about to be taken to satisfy a tax charge that in fact never had any existence; and that it will suffer irreparable injury and damage unless the law’s processes the tax collector is employing are restrained by injunction to that end.

That feature of complainant’s theory which rests upon the idea that the formal minutes, permanent record, of the acts of the commissioners’ court must be entered during the term of the court at which the action is taken, is entirely untenable, as was expressly ruled in Goodson v. Dean, 173 Ala. 301, 55 South. 1010. The act of entering such official proceedings upon the permanent records of the body is purely ministerial.— L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 140, 141, 44 South. 602; 1 Black on Judg. § 106.

Apart from this, however, the bill,is without equity. Its object is to enjoin the collection of a tax sought to be collected for county purposes, not municipal, where, it seems from some authorities (see Stone v. Mayor, etc., 57 Ala. 61, 71, 29 Am. Rep. 712) there is a partial relaxation of the rule applied in cases touching the restraint of tax-gathering by the state or the counties. The settled rule is that, unless a bill to enjoin the collection of a tax shows some recognized ground for equitable interference, beyond illegality, hardship, or irregularity in respect of the tax, injunction against the collection will not issue. — Oates v. Whitehead, 173 Ala. 209, 55 South. 803; Ala. Gold Life Ins. Co. v. Lott, 54 Ala. 499, 508, 509; City of Ensley v. McWilliams, 145 Ala. 159, 41 South. 296, 117 Am. St. Rep. 26; Town of Decatur v. Nelson, 102 Ala. 556, 15 South. 275. In this instance, the complainant should pay the tax, and seek its recovery back in an action at law. — Ala. Gold Life Ins. Co. v. Lott, supra.

The bill being without equity, the motion to dissolve should have been granted. The decree to the contrary is reversed, and one is here rendered dissolving the injunction.

Reversed and rendered.

All the Justices concur.