153 N.W. 454 | N.D. | 1915
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, 11 Wall. 108, 20 L. ed. 65, and in an opinion by Justice Field it was said: “Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction, before the preventive remedy of injunction can be invoked. It is upon taxation that the several states chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers upon whom the duty is devolved of collecting the taxes may derange the operations of government, and thereby cause serious detriment to the public.
“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, 22 Ill. 34.
“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, 17 Iowa, 379; Warden v. Fond du Lac County, 14 Wis. 618.
“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, 21 Iowa, 133); or where the property assessed is not subject to the tax (Illinois C. R. Co. v. McLean County, 17 Ill. 291) ; or where fraud has been practised by the taxing officers (Cleghorn v. Postlewaite, 43 Ill. 428). . . .
“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, 12 Cal. 298. If the tax is in itself a legal one, and the property on which it is levied subject to taxation, then it cannot be said that any such injury could result from its collection. It might financially embarrass the taxpayer, it might cast a cloud on his title, it
“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. 1 N. D. 118, 45 N. W. 191. In that case this court said: “The general rule pertaining to the interference of equity with tax proceedings is stated by High, Tnj. §§ 485, 486, as follows: ‘It may be laid down as'.a general rule that equity will not interfere by injunction with the collection of a tax which is alleged to be illegal or void merely because of its illegality, hardship, or irregularity, but there must be some special circumstances attending the threatened injury to distinguish it from a mere trespass, and thus to bring the case within some recognized head of equity jurisprudence; otherwise the person aggrieved will be left to his remedy at Iaw.? ...
“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, 13 N. D. 467, 101 N. W. 919, where the following general principle was announced: “Courts of equity should, in general, interfere to restrain the collection of a tax or annul tax proceedings only where it appears either that the property soright to be taxed is not subject to taxation, or the tax itself is not wholly authorized by law, or the taxes are assessed or levied by unauthorized persons, or the taxing officers have acted fraudulently, or the taxes have been unjustly levied, or the assessment made unjustly or without uniformity; and the plaintiff must, in addition, Taring himself within some recognized head of equity jurisprudence, and must also tender or pay the taxes justly chargeable upon his property, before an injunction should issue to restrain the collection of the taxes, unless statutory provisions made such tender unnecessary.” The two cases last cited involved real estate taxes, and hence the principles therein announced have even greater force when applied- to personal taxes. Schaffner v. Young, 10 N. D. 245, 253, 86 N. W. 733.
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, 11 N. D. 107, 90 N. W. 260, being an action to set aside and perpetually enjoin the collection of certain taxes levied against the property of the Soo Railway Company, this court said: “The defendant contends that the-plaintiff has not brought itself within any of the recognized principles of equity jurisprudence justifying it in passing by remedies at law and resorting to injunctional proceedings. A statement of the allegations of the complaint will show the basis of plaintiff’s contention. The complaint alleges: . . .
“ ‘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, 10 N. D. 245,
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, 59 Ga. 805, and authorities cited. See also High, Inj. 4th ed. § 536. Practically every case cited by appellant involved taxes levied by municipalities upon property wholly exempt from such taxation; the entire tax involved was void at its inception, and an enforcement thereof threatened the franchise, — the very existence of the corporation itself, — with destruction. It seems obvious that these cases cannot be considered authority under the facts in this case.
Appellant’s counsel cite the case of First Nat. Bank v. Lewis, 18 N. D. 390, 121 N. W. 836, as an example of a case in this court where the illegal part of a personal property tax was enjoined. An examination of the record in that case shows that an injunction was not asked therein. That was an equitable action to cancel a certain resolution or order of the board of county commissioners of Cass county. No question was presented as to the propriety of the remedy; but the real question in issue therein, viz., the authority of the county board of equalization to raise the individual assessment of personal property after the same had been equalized by the city board of review, — was submitted and decided on its merits. The mere fact that this court in that case assumed jurisdiction, and decided the question thus presented, does not make that decision authority in support of other legal propositions incidentally involved, but withdrawn from the court’s consideration by the parties thereto- Dows v. Chicago, 11 Wall. 108,
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, 11 N. D. 107, 90 N. W. 260, fails to set forth allegations justifying equitable interference, it is difficult to see how it can be seriously contended that the facts in the case at bar present such cause. Surely the interference with the business of this plaintiff could cause no greater injury or hardship than the alleged threatened interference with the business of the railway company. In this case it is not averred or shown'that the intervention of a court of equity is necessary to prevent a multiplicity of suits. On the contrary the probability, or even possibility, of a multiplicity of suits, is negatived by the facts in the case. Nor are any facts averred showing that the remedies provided by law are not entirely adequate; and there is certainly nothing to show that the enforcement of the tax will result in any irreparable injury to the plaintiff. The only possible injury sug-. gested is that plaintiff might be compelled to pay a tax amounting to $4,163.09, of which sum two items aggregating $51.Y6 are illegal and invalid; and which if paid by the plaintiff under compulsion and under protest could be recovered back by it. Can it be seriously contended that this presents a cause justifying equitable interference? We are satisfied it does not. In considering a similar question, the supreme court of Michigan in the case of Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654, speaking through Judge Cooley, said: “The grounds
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,” 92 U. S. 575, 614, 23 L. ed. 663, 674: “It is a profitable thing for corporations or individuals whose taxes are very large to obtain a preliminary injunction as to all their taxes, contest the case through several years’ litigation, and when in the end it is found that but a small part of the tax should be permanently enjoined, submit to pay the balance. This is not equity. It is in direct violation of the first principles of equity jurisdiction.”
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), 9 N. D. 346, 50 L.R.A. 262, 83 N. W. 212; Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County, 11 N. D. 107, 90 N. W. 260; Chicago & N. W. R. Co. v. Rolfson, 23 S. D. 405, 122 N. W. 343; Schaffner v. Young, 10 N. D. 245, 86 N. W. 733. See also authorities cited in