Goodnough v. Powell

23 Or. 525 | Or. | 1893

Lord, C. J.

(orally). — The importance of this case requires us to promptly decide it, and we have only been able to examine the authorities cited by counsel and reach our conclusion upon the facts, without preparing a written opinion. The general doctrine is well established that courts of equity will restrain by injunction the collection of taxes that are fraudulent, or that would lead to a multiplicity of suits, or produce irreparable injury, or, if the property is real estate, that would cast a cloud upon the title of the complainant; but it is equally well established that courts of equity will not interfere with the collection of taxes unless they are void, or levied without authority, and not then unless the taxpayer has paid, or tendered, such taxes as are legal. Nor will equity restrain an extension of a tax on the tax books, unless wholly unauthorized and void in all its parts. In Ottawa Glass Co. v. McCaleb et al. 81 Ill. 562, Walker, J., says: “If any portion of the tax is valid, then the court will never interpose until the taxes have been extended on the collector’s books, and not then until the taxpayer has paid, or tendered, such taxes as are legal. The court will not stay a tax which is legal because some portion of it may be illegal and void. The legal portion must be paid without hindrance or obstruction.” In State Railroad Tax Cases, 92 U. S. Rep. 617, Mr. Justice Miller says: “It is not sufficient to say in the bill that they are ready and willing to pay whatever may be found due. They must first pay what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted. The state is not to be thus tied up as to that of which there is no contest, by lumping it with that which is really contested. If the proper officer refuses to receive a part of the tax, it must be tendered, and tendered without the condition annexed of a receipt in full for all the taxes assessed ”: See also National Bank v. Kimball, 103 U. S. 732; Dundee Mortgage Co. v. Parrish, 24 Fed. Rep. 198.

This practice is not observed in the present suit, for the reason that the tax is not yet extended on the assessment rolls by the officer, nor its collection sought to be enforced against the claimant. If the assessment upon mortgages is fraudulent, and made with intent to discriminate against him in that particular and for the part or amount alleged, it will be time enough to hear complainant after the taxes are extended and their collection sought to be enforced against him, upon his payment of the amount of tax conceded to be due.

The judgment is affirmed and the bill dismissed.