25 N.D. 629 | N.D. | 1898
This action was brought to restrain the defendant, as county treasurer of Traill county, from seizing and selling in satisfaction of certain taxes alleged to be illegal in part, the goods and chattels of certain persons named in the complaint, Avhich persons it is alleged are seA^erally the owners of diArers shares of the capital stock of the plaintiff, and who collectively OAvn, as it is alleged, all of the plaintiff’s capital stock.
The taxes involved were assessed, equalized, and levied in the year 1895 by the taxing officials of the city of Hillsboro in Traill county, in which the plaintiff’s bank is located, and by the officials of the county of Traill.
The action was commenced in December, 1896, and soon after its commencement a temporary restraining order was made by the district court, restraining the defendant from taking any steps whatever to collect any of the taxes in question; and after a trial of the action upon the merits the district court entered its judgment in favor of the plaintiff, and therein adjudged that said defendant be permanently restrained and enjoined from collecting — either from the plaintiff or from any of its said shareholders — any of the said taxes of 1895, except a certain part or percentage thereof which the district court de
The substance of the plaintiff’s cause of action, as set out in its complaint, when stated in general terms, is as follows: The plaintiff charges in substance that the several taxing officials of the city of Hillsboro and of the county of Traill, and particularly the city assessor of said city and the board of equalization of said county, did, in assessing and equalizing the taxes in said city and county for the year 1895, intentionally and illegally discriminate against said shareholders, and as against the property represented by said shares of capital stock; and to accomplish such discrimination it is charged that the valuation placed on said shares of stock by said assessor, and as equalized by said board of equalization, was relatively too high, and was much greater than the valuation placed upon other moneyed capital and personal property within said city and county.
The trial court sustains these allegations of the complaint in its findings of fact, wherein the court uses the following language: “The assessor of the city of Hillsboro, in making up the assessment roll for his city in the year 1895, did assess the holders of the several shares of stock composing the capital stock of said First National Bank, the plaintiff, at 81 per cent of its full cash value; and did assess other moneyed capital owned by individuals in said city of Hillsboro, subject to taxation, at only 35 per cent of its full cash value and did assess other personal property in the city of Hillsboro at 25 per cent of its actual cash value, and that said discrimination or rules of said assessment used by said assessor of the city of Hillsboro were wilful; and the assessor of the city of Hillsboro intended in each of said cases to assess said several classes of property at the percentage of their actual value as given above.” The court finds that the city board of review did not change any of the said valuations as made by the city assessor, and further finds: “That the board of equalization of the said county of Traill, pretending to equalize the assessment rolls for the county of Traill, as they were authorized by law to do, did on the 12th day of duly, 1895, by vote or resolution by them passed, place the assessed value of said shares of stock of the said plaintiff at 80 per cent of its full value, but did not raise the assessed valuation of other personal property in like proportion, or at all, so that the capital stock of said bank was assessed
These findings of fact are challenged by exceptions thereto upon the ground that the same are unsupported by the evidence; but inasmuch as our disposition of the case will be controlled by other considerations, we have not found it necessary to consider the evidence or pass upon the exceptions to the findings of fact.
Passing to a consideration of the legal aspects of the questions presented by this record, and proceeding upon the assumption that all the facts stated in the complaint are true and sustained by the evidence,, the question arises whether such facts constitute a cause of action in equity in favor of this plaintiff. It has been seen that the taxes in question were not assessed against the plaintiff, nor is it alleged that plaintiff was ever requested to pay the same or any part of the same,, and much less is it alleged or claimed that the defendant, as county treasurer, or otherwise, has ever threatened to seize or sell any of the property of the bank as a means of satisfying any of said taxes; but,, on the contrary, it is expressly alleged “that the treasurer of said county, defendant herein, threatens and is about to distrain the property of the shareholders of plaintiff’s capital stock.” Nor does it appear that the shareholders of plaintiff’s capital stock, who are personally liable to pay the tax, have ever requested the plaintiff to interfere in their behalf, or that they now desire this action to be prosecuted.
If in any case the writ of injunction may be invoked to restrain the collection of a personal tax by the seizure of goods and chattels, it is needless to say that it cannot be invoked by a party whose property is not in any danger of seizure; nor by a party against whom no tax has been assessed and from whom no payment of taxes has been or can be lawfully demanded by the tax collector. Counsel for respondent cites the case of Cummings v. Merchants Nat. Bank, 101 U. S. 153, 25 L. ed. 903, as sustaining his contention that an injunction will be granted at the suit of a national bank to restrain the collection of an illegal tax levied against its stockholders on their shares of its capital stock. That case originated in the circuit court of the United States, and its decision involved a construction of the revenue laws of the state of Ohio. In the case cited the Supreme Court sustained the remedy by injunction on two grounds: First, upon the ground that under the Ohio statute the bank itself was expressly authorized to • pay the tax upon its shares, and was allowed to indemnify itself for such payments
None of these grounds or reasons for tbe interference of a court of equity exist in this state. As we have seen tbe statute of 1890, chapter 132, §§ 24-26, unlike § 1184, Rev. Codes 1895, neither authorizes nor requires tbe bank to pay tbe taxes assessed against its shareholders; nor is there any statute authorizing tbe use of an injunction in this class of cases in this state.
Another consideration, in our opinion, is equally decisive of this case. It is not claimed that tbe plaintiff, or any of its said shareholders, ever presented their grievances arising upon tbe alleged unequal and overvaluation of said shares-of capital stock, to either the board of review of tbe city of Hillsboro, or tbe board of equalization of Traill county, or to the state auditor, all of which officers are expressly empowered by tbe revenue laws of this state to hear and redress grievances of tbe character set out in this complaint. See Sess. Laws 1890, chap. 132, §§ 39 and 44; also Sess. Laws 1891, chap. 100, § 11.
While there is some conflict of authority upon tbe question it is nevertheless settled by tbe great preponderance of cases tbat the writ of injunction will be denied to restrain the sale of personal property in satisfaction of an illegal personal tax in a case where the taxpayer has neglected to avail himself of the statutory method of correcting the abuse of an unequal or overvaluation. O’Neal v. Virginia & M. Bridge Co. 18 Md. 1, 79 Am. Dec. 669 ; Johnson County v. Searight Cattle Co. 3 Wyo. 777, 31 Pac. 268 ; Smith v. Marshalltown, 86 Iowa, 516, 53 N. W. 286 ; New York & C. Grain & Stock Exch. v. Gleason, 121 Ill. 502, 13 N. E. 204 ; Meyer v. Rosenblatt, 78 Mo. 495 ; Breeze v. Haley, 10 Colo. 5, 13 Pac. 913. In the case of Humphreys v. Nelson, 115 Ill. 45, 4 N. E. 637, the court fully sustains this rule, and in its opinion, page 51, says: “Having abundant remedy at law for the correction of the errors by which it claims to have sustained injury, and
Upon tbe authorities cited it will follow that a court of equity will not enjoin the collection of the taxes in question, and the judgment entered in the District Court restraining their collection is therefore erroneous, and must be reversed, and a judgment entered below dismissing this action. It will be so ordered.
(This case should have been reported in one of the earlier volumes, hut was, through the inadvertence of the printer, mislaid and omitted.)