This is an action in equity brought to enjoin the defendant Barnes, who is the sheriff of Burleigh county, from enforcing a certain personal property tax levied against plaintiff’s property situated in the city of Bismarck, in Burleigh county, for the years 1909' and 1910. The city of Bismarck and the county of Burleigh were also-made parties defendant.
The suit was commenced on January 31, 1912, in the district court, of Burleigh county. The plaintiff is a foreign corporation organized under the laws of the state of West Virginia, owning and operating the waterworks plant in the City of Bismarck, in Burleigh County, and as far as the pleadings and record in this case .show, this is the only property of any kind owned by the plaintiff within the state of North Dakota.
The material allegations of the complaint are substantially as follows: “That the actual cost value of plaintiff’s waterworks plant in Bismarck in the years 1909 and 1910 did not exceed the sum of $85,000. That in the year 1909 and ever since that time the municipal government of the city of Bismarck has been and now is vested in a board of five commissioners. That in the month of June, 1909, said board of city commissioners, sitting and acting as the board of equalization of assessments for said city, fixed the value of this plaintiff’s said water supply plant, and assessed the same for the purpose of taxation at the sum of $40,500, and thereafter at the regular meeting of the state board of equalization of assessments for the state of North Dakota in said year, said state board increased the valuation and assessments of all property in the state 12-|- per cent, thereby increasing this plaintiff’s assessments to the sum of $45,562, and thereupon the annual tax levies for said year were made by the respective taxing officers for the respective purposes provided by law, the taxes for said year for all purposes were imposed and charged upon and against plaintiff’s said property and computed and fixed on the basis of said assessment of $45,562, resulting in an aggregate tax in the sum of $2,237.09. That in the year 1910 said board of commissioners of the city of Bismarck in like manner valued and assessed said property for the purpose of taxation at the sum of $36,000, and the taxes for all purposes for said year 1910 were computed, imposed, and charged upon and against said property based on said valuation and assessment of $36,000, resulting in an aggregate tax of $1,926. That
“That in the years 1909 and 1910 the city board of equalization of said city of Bismarck, as well as all other boards of equalization in Burleigh county, and in all other parts of the state, in fixing the assessed value of property for taxation adopted and used as the assessable value a value which was intended to represent approximately 25 per cent of the actual value of the property assessed; and the assessed value was computed by taking one fourth of the conservatively estimated actual value, as the assessed value.
“That in assessing and equalizing assessments of taxable property throughout the city of Bismarck in the years 1909 and 1910, said city board of equalization acted upon and applied the aforesaid practice of fixing the assessed value of property at approximately 25 per cent of its actual value as to all taxpayers, save and except as to this plaintiff. That with respect to this plaintiff’s said establishment, said city board of equalization intentionally and arbitrarily departed from said general rule, and wilfully and unjustly assessed this plaintiff’s property at a value representing approximately 50 per cent of its actual value, as said board then and there well knew; and this was done with the intent and for the purpose of fraudulently causing to be imposed upon this plaintiff a rate of taxation in excess of the rate of taxation imposed on other taxpayers in said city.
“That the just and true assessable value of said property in the years 1909 and 1910 was not to exceed the sum of $85,000, and the just and true amount of taxes that this plaintiff ought to pay for said respective years on said property is for 1909 not to exceed'the sum of $1,200, and for 1910 not to exceed the sum of $900.
“That plaintiff did, on the 11th day of' August, 1911, pay to the county treasurer of Burleigh county, in part payment of the 1910 taxes, the sum of $692.18, and is now ready and willing to pay, and hereby offers to páy, sums stated in ¶ YI. in this complaint (less the partial
“That plaintiff has offered to' pay to the county treasurer of Burleigh county the just amount of taxes due, but said county treasurer has refused and still refuses to accept any other or different sum than the full amount of said taxes as they appear charged on the tax lists, with interest and penalties.
“That the defendant Barnes, who is the sheriff of Burleigh county, has by virtue of his office as sheriff, and pursuant to the statute in such cases made and provided, made distraint upon and seized all this plaintiff’s said property for the purpose of selling the same for the satisfaction of said pretended taxes, 'and asserts and claims that the aggregate sum due for such taxes, exclusive of his fees and costs, is the sum of $4,370.-37, and will, unless restrained from so doing, sell and dispose of said property therefor, and wholly deprive this plaintiff thereof.; and this plaintiff will be remediless in the premises.
“That inasmuch as part of said taxes is valid, and hence said sheriff may lawfully distrain and sell plaintiff’s property therefor, this plaintiff cannot pay said taxes under protest and recover the same back from said sheriff; and inasmuch as in an action at law it cannot be determined how much of said taxes is justly due, plaintiff is wholly without remedy in an action at law, and is without remedy save in a court of equity.”
Plaintiff’s prayer for judgment is that the defendant sheriff be enjoined from further proceeding with said distraint of plaintiff’s property, and be required to release the same until the final determination of this action; that the court ascertain and determine the just amount of taxes due, and that plaintiff be permitted -to pay the same, and that thereupon the remainder of taxes in excess of the amount justly due be declared null and void and canceled of record; and that the defendants be forever enjoined from attempting to enforce the same. The defendants answered, alleging that the cash value of said plaintiff’s property was not less than $175,000, and set forth in detail the facts showing that the property had been properly assessed on an equitable and just basis; and also alleged that the plaintiff’s complaint did not set forth facts entitling the plaintiff to equitable relief. At the commencement of the action the district court issued a temporary injunctional order where
It will be noticed that the only objection made to the tax in the original complaint is that the city board of equalization fraudulently and arbitrarily placed an excessive and grossly disproportionate valuation on plaintiff’s property. But after the cause had been noticed for trial, and prior to the trial, an amended complaint was served alleging as additional grounds that the taxes imposed on said property for state purposes for the year 1909 (consisting of certain items set forth in the complaint) aggregated in all 5 mills per dollar of the assessed value, or 1 mill in excess of the constitutional limit; and that the taxes imposed on said property for state purposes for the year 1910 were computed at the rate of 4x2ir mills per dollar of the assessed value, or an excess of mill over the constitutional limit. At the time of the trial the plaintiff expressly waived the ground on which the action was originally commenced, to wit, that the valuation of plaintiff’s property was fixed at an excessive rate; and for the purposes of this action it is conceded that such property was not overvalued, but that the same was assessed and equalized at approximately the same proportionate rate as the property of other taxpayers. The sole ground, therefore, on which plaintiff asks for equitable relief, is based upon the alleged excessive state levies for the years 1909 and 1910.
Plaintiff’s Contention regarding these taxes is stated in its brief as follows: “That the taxes charged against plaintiff were illegal and excessive in 1909 to the extent of $45.56, and in 1910 to the extent of $7.20; that the amount of taxes justly due was, for 1909, $2,191.53; for 1910, $1,918.80.” In other words, plaintiff admits that the correct amount of taxes which it was justly beholden to pay was $4,110.33. The only allegations of fraud in the complaint relate to the action of the board of equalization of the city of Bismarck. As already stated, this part of the complaint was eliminated by the plaintiff at' the trial in the
The sole question therefore presented to this court is whether or not an illegal excess of $52.76 in the state levies for the years 1909 and 1910, out of the total tax of $4,163.09, will entitle the plaintiff to have the collection of the tax enjoined. This question was considered by the Supreme Court of the United States in the case of Dows v. Chicago,
“No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizens whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or, where the property is real estate, throw a cloud
“It is no answer to say, let those whose duty it is to administer the revenue law do it with greater care, and do everything which the law requires just as it requires, and at the time specified, and be careful that they do no more than is required. We must take things as they are, and look at practical results. Chicago, B. & Q. R. Co. v. Frary,
“The doctrine seems well settled that equity will not interfere by injunction to restrain the enforcement of tax proceedings on the ground of irregularities or errors in the assessment of the tax (or in the execution of the power conferred upon taxing officers, the remedy at law being deemed sufficient in such cases. High, Inj. 355; Macklot v. Davenport,
“The cases in which courts of equity have exercised jurisdiction in matters of this character will be found to be confined almost .exclusively to those wherein the tax itself is illegal or unauthorized,— not a legal tax assessed in an irregular manner (McClure v. Owens,
“It is laid down as a broad principle that in no case will the collection of a tax be enjoined where it is not shown that the injury resulting from its enforcement would be irreparable, and this fact must appear in the bill by issuable averments. High, Inj. 362; Ritter v. Patch,
“It is a matter of indifference to the public interests, who pays the tax, or out of what kind of property it is made. But it is of the highest importance that it be paid, and that speedily, and with as little cost and expense to the public treasury as possible. A party occupies no very equitable ground, to say the least, who admits that land which he owns is chargeable with a tax, that such tax is just and legal, but that he will make the error or neglect of an officer his excuse for delaying or defeating its payment.
“The last article of personal property subject to taxation belonging to the poor man may be seized and sold for the satisfaction of the tax, and courts of equity in most cases could afford no relief, while the rich man, with his broad acres and money to fee attorneys, if permitted to take advantage of such quibbles and technicalities, might indefinitely postpone the discharge of his obligation, thereby throwing additional burdens on willing taxpayers, and embarrassing the public treasury.”
The doctrine announced by the Supreme Court of the United States and the territorial supreme court was fully approved by this court in the .case of Farrington v. New England Invest. Co.
“Courts of equity should, in general, extend the strong arm of their preventive power to restrain the collection of a tax or annul tax proceedings only where the property sought to be taxed is exempt from taxation, or the tax itself is not warranted by law, or the persons assuming to assess and levy the same are without authority so to do, or where
The rule laid down in the case of Farrington v. New Fngland Invest. Co. was quoted with approval by this court in a number of subsequent decisions, and among others in the case of Douglas v. Fargo,
It is conceded even by plaintiff’s counsel that as a general rule “equity will not enjoin the distraint of personal property for a tax.” But it is contended that this case furnishes an exception to the rule, for the reason that the property involved, although personal, “for .all-practical purposes, is in every essential particular like real estate,” and also, “that the property, although personal, is of such character-that the seizure and sale thereof will cause irreparable injury not ascertainable in money.”
The rule is stated in Cooley on Taxation, 3d ed. p. 1415, as follows: “When a tax as assessed is only a personal charge against the party taxed, or against his personal property, it is difficult in most cases to suggest any ground of equitable jurisdiction. Presumptively the remedy at law is adequate. If the tax is illegal and the party makes; payment, he is entitled to recover back the amount. The case does not differ in this regard from any other case in which a party is compelled to pay an illegal demand; the illegality alone affords no ground for-
In High on Injunctions, 4th ed. § 505, it is said: “As regards the question of equitable relief against a tax which is levied upon or sought to be collected out of personal property, the better considered doctrine, and that supported by the clear weight of authority, is that equity will not interfere by injunction to restrain a levy upon or sale of personal property in satisfaction of a tax which is alleged to be illegal. Even in those states which have inclined to depart from the general doctrine denying relief in equity against an illegal tax, the courts, while contending for the jurisdiction in cases affecting the title to real estate, nevertheless refuse to interfere, where only personal property is involved, and leave the parties aggrieved to their remedy at law.” See also Pom. Eq. Jur. § 359.
’ In the case of Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County,
“ ‘That this plaintiff is engaged in the business of operating a railway through said county, and connecting the places and people therein with eastern and western points, and is a common carrier of freight, express, and passengers into and out of said county, and all the property of plaintiff in said county is used in and about said business, and is
“The tax being a personal property tax, the complaint shows no facts which bring the action within any of the exceptions to the general rule that an injunction will not lie to prevent the collection of a personal property tax. The property taxed is not exempt. A constitutional law authorized its taxation, and gave the officers authority to tax it. No facts are pleaded or shown that can reasonably be said to show that there •exists no remedy at law, or that irreparable damage will follow if the injunction be not granted. That an injunction will not be granted to restrain the collection of a personal property tax, except in certain cases, has recently been held by this court, and the great weight of authority favors such holding. Schaffner v. Young,
In the case of Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County, the tax involved was a county tax. In the instant case an attack is made upon a state tax, and hence a court of equity is even more reluctant to interfere than if it involved a tax levied by a municipality. Decker v. McGowan,
Appellant’s counsel cite the case of First Nat. Bank v. Lewis,
We are unable to see where the plaintiff herein is in a different position from that of any other taxpayer in the state. If a certain portion of the state levy was excessive and illegal, then the same proportion of the taxes of every taxpayer in the state was excessive and illegal. If plaintiff is entitled to injunctive relief, so is every taxpayer in this state. If the complaint in the case of Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County,
The mere fact that the tax of the plaintiff may be larger than that of a majority of the taxpayers in the state does not give it any standing-in a court of equity. As was said by the Supreme Court of the United States in “State Railroad Tax Cases,”
At the time this action was commenced the defendant Barnes, as sheriff of Burleigh county, had already seized certain property belonging to the plaintiff. The plaintiff therefore had an adequate remedy at law by making payment of such taxes under protest, and bringing suit to recover the illegal excess. St. Anthony & D. Elevator Co. v. Bottineau County (St. Anthony & D. Elevator R. Co. v. Soucie),