23 S.D. 405 | S.D. | 1909
The plaintiff claims that in October,’ 1905, two written notices and demands for payment of personal property taxes were caused to be issued by defendant Peterman, as sheriff of Kingsbury county, one of which notices and demands required that plaintiff pay the sum of $469.45, tax, $4,69, penalty and interest, $19.96, expenses, total $494.10, for personal property taxes charged against plaintiff in DeSmet township for the year 1904, and which other notice ánd demand required plaintiff to pay $95.44, tax, $7.64, penalty and interest, $5.21, expenses, total, $108.20, charged against plaintiff in DeSmet township, for road taxes for the year 1904, and both which notices and demands recited: “This sum I will collect forthwith as provided by chapter 48, Daws of 1901, and unless you pay said taxes before I call it will be necessary for me to charge you mileage, expense of levy and keeping and other expenses, which fees must be turned into the county treasury. You will save trouble and expense by paying at once. This notice is sent to give you an opportunity to avoid costs, as the law directs me to levy on your property” — and both of which notices were signed by W. T. Peterman, sheriff of Kingsbury county. The plaintiff further claims that the said tax of' $469.45 was the second installment of a personal property tax o’f $938.91, charged against plaintiff in said DeSmet township, and that plaintiff duly paid the first installment thereof, and that in September, 1905, plaintiff offered and tendered to defendant Rolfson as treasurer/the second installment of $469.45, but that said Rolfson refused to receive and accept the same, for the alleged reason that there was a fúrther’tax of $95.44, charged against plaintiff for a road tax in said township, but which road tax plaintiff claims is illegal and void in not having been authorized by the township electors, as provided by law, and that said road tax was never legally levied or assessed by the board [of supervisors of said township. The plaintiff commenced this action in circuit court to re
At the outset we are met with the proposition that the remedy of'injunction will not lie to restrain the collection of a'personal property tax under the circumstances of this case. The respondents contend that injunction should not lie, because plaintiff had adequate remedy at law, and should not be permitted to resort to the equity side of the court. It is the contention that plaintiff should have first paid said tax under protest, and then brought action to recover back the portion alleged to have been illegal or irregularly charged against plaintiff; that plaintiff might have waited until its property had been seized for such tax, and then maintain* ed an action for damages in the nature of trespass. In this contention we believe respondents are in the right. The general rule seems to be thus stated in Cooley on Taxation (page 772) : “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 equitable interference, and the proceedings to enforce the tax by distress and sale can give none, a’s these only constitute an ordinary, trespass. To this ,point the. decisions are numerous. The exceptions to this rule, if any, must be of cases
The judgment of the circuit court is affinned.