While in the view which we take of the material question involved in this case, it becomes wholly unnecessary to decide the constitutional question made by counsel in the argument; yet, it may not be improper to remark, that the difference between the clause of the Constitution of Iowa, relied upon, and the clause of the Ohio Constitution, upon which the Supreme Court of Ohio based its decision in the case of the Exchange Bank v. Hines, supra, is so essential, that the correctness of that decision might well be conceded without at all involving the necessity of holding that § 722 of the Rev. is in conflict with our Constitution.
In the present case, there is no question but that the City of Davenport had jurisdiction and authority to levy a tax upon the property of the plaintiff in the time and manner the tax was levied, and to tax his moneys and credits, after deducting the gross amount of all bona fide debts owing by him. It is claimed, however, and so found by the referee, that the plaintiff was over assessed in his moneys and credits, for that he had none over the gross amount of the bona fide debts owing by him, whereas he was assessed as having ten thousand dollars.
This case is one, therefore, of unjust over assessment, and is, to the extent of such excess, clearly erroneous. There is, however, a clear distinction between such case of erroneous or over assessment, and a case of assessment without any authority, such as an assessment made under air unconstitutional law, or the assessment of property for which the law has made no provision for assessing or has expressly exempted from assessment and taxation. The distinction is the same in effect and just as clear as that between an erroneous judgment of a court having jurisdiction of the person and subject matter, and the judgment1 of a court having no such jurisdiction. And, to illustrate still further, a tax warrant, regular on its face, issued for the collection of a tax levied under such erroneous assessment, would afford protection to the officer serving it, while a like tax warrant, issued for the collection of a tax levied under an unconstitutional law, or without the authority of law, would afford no protection whatever; just as an execution, regular on its face, issued upon an erroneous judgment of a court having jurisdiction, would afford complete protection to the officer serving it, while a like execution, issued upon a judgment rendered by a court having no
The remedy afforded by the law to a party whose property is seized to satisfy a tax levied under an unconstitutional law, or levied without the authority or jurisdictionunder the law to levy it, is clear. He may bring replevin for his property seized to satisfy such tax, as in Morford v. Unger, supra; or where matters of equitable cognizance are also involved in the case, he may restrain their collection, as in Langworthy v. The City of Dubuque, supra; or he may, doubtless, in the proper actions, make the collector, and those under whose direction he acts, personally liable for the damages resulting to him by reason of such tax.
The correct, and as we believe, the ordinary method of fixing the rate of tax necessary to be levied in any given year, for a city, county or the- State, is first to ascertain the amount or assessed value of the property in such city,
Again, it is a well recognized fact that more or less error has always been connected with tbe assessment, levy and collection of taxes. This fact finds abundant verification in tbe almost universal failure and insufficiency of tax titles ; this has been true, not only in Iowa, but in every State of the Union. This insufficiency of tax titles has resulted from the errors and irregularities in tbe assessment, levy and collection of tbe taxes; and if a tax-payer may enjoin tbe collection of bis tax for an error in the assessment, he may enjoin for any other error, and to sustain such injunctions and bold that taxes may be enjoined for errors and irregularities, would result in a flood of injunctions all over tbe land, and stay the collection of reve
In the case of Osborn v. The Inhabitants of Danvers, 6 Pick., 98, the plaintiff sued to recover back money which he had paid as taxes, upon an excess of assessment. The plaintiff seasonably exhibited to the assessors a list of his estate, upon which the assessors fixed the valuation at $8,350; to this sum the assessors added $18,000, which they estimated as the value of personal property not mentioned in his list, and which was invested in a mercantile establishment in New York, in the name of, and owned by plaintiff, but managed by his son.
The plaintiff claimed to recover back the proportion assessed on the $18,000, on the ground that it was assessed on property for which he was not liable to be taxed in Danvers. Wilde, J., delivering the opinion of the court, says, “ Whether the plaintiff was liable to be assessed in this State, for the personal property which he had in trade in New York, is an important question, upon which in this case we are not required to express an opinion; for, admitting that he was not, still we think that this action cannot be maintained. The remedy, and the only remedy, for an over valuation and assessment, is under the statute of 1785, ch. 50, § 10, by which it is provided, that whenever any person shall be aggrieved by being overrated in the assessment of any tax, he may apply to the assessors to make a reasonable abatement; and if they refuse so to do, complaint is to be made in the nature of an appeal, to the Court of General Sessions of the Peace, who are
In Hughes v. Kline et al., 30 Penn. State, 227, which was a bill to enjoin the collection of taxes upon certain lands which the plaintiff had purchased at private sale, of the owner, at $48,750, and which had, for the three years preceding, been assessed at $37.00, and was so assessed that year by the assessors, but the valuation was raised by the commissioners to $76.00, which the plaintiff claimed was excessive and contrary to law. The defense showed that the plaintiff had sought his remedy under the statute and failed. The court, per Thompson, J., say: “ The legislature has thought proper to place the assessment and collection of taxes in the hands of county and township officers and has constituted the county commissioners generally, the appellate tribunal for the correction of assessments, and in Schuylkill county, superadded thereto an appeal to the Court of Common Pleas from their decision. The proceedings are to be in all cases, as of necessity, summary;
In the case of Deane v. Todd et al., 22 Missouri, 90, which was a case (like the one now under consideration) where the plaintiff filed his petition to enjoin the collector from collecting the tax assessed upon a note for $72,300, owned and held by the plaintiff, upon the Potosi Lead Company, an insolvent corporation, LEONARD, J., delivering the opinion of the court, after premising “ that the plaintiff ought not to have been taxed on account of the debt due him from the Potosi Lead Company,” and that
In the case of Chicago, Burlington and Quincy Railroad Company v. Frary et al., 22 Ill., 34, which was a case where the plaintiff had obtained a temporary injunction against the collection of certain taxes, the court, per Catón, Ch. J., after showing the ruinous consequences which must flow from the exercise of such jurisdiction, say: “Neither precedents nor reason will warrant the use of the writ of injunction for such purposes, and to produce such results. Where the law affords an adequate remedy, this writ cannot be used, and especially where greater mischief will flow than good will result from it, the court will always withhold this species of relief. Equity cannot attempt to prevent, any more than it will redress, all wrongs.”
And in the case of Munson v. Minor, 22 Ill., 594, the same court, per WalkeR, J., in a case where a temporary injunction had been allowed, say: “ Upon a careful examination of all the elementary treatises on equity jurisprudence, as well as the adjudged cases to which we have had access, we do not find that a court of equity has assumed
That the only remedy which the party has for over-assessment, in the first instance, is by application for abatement under the statute, is directly decided in the following .cases: The State v. Dauser, 3 Zabr., 552; The State v. Powers, 4 Id., 406; The State v. Manchester, 1 Dutcher, 531; Greene v. Mumford, 4 Rhode Island, 313; Randle v. Williams, 18 Ark., 380; The State v. Southern Steamship Company, 15 La. An., 497. While most of these cases relate to State or county revenue, the principle is equally applicable to city revenue, and is so recognized in some of the cases. We conclude, therefore, that, since the charter expressly authorizes the city council “ to correct or equalize any erroneous or injudicious assessment,” it was the duty of the plaintiff to have sought relief before that tribunal;
III. There is another view of the case, 'which, perhaps, upon close examination, might be found equally decisive, and that is, that the party would have his remedy at law against the assessor, or the city, for the recovery of any money paid for taxes wrongfully assessed, and having such adequate remedy at law, could not, of course, resort to a court of equity. Huckins v. The City of Boston, 4 Cush., 543; Hershey v. Fry, 1 Iowa, 593; Garnes v. Robb, 8 Id., 193; Harrington v. Cabbage, 3 G. Greene, 307; Claussen v. La Frenz, 4 Id., 224. But without determining this question, for the reasons stated under the second point in this opinion, the judgment of the District Court will be reversed, and the petition dismissed absolutely at plaintiff’s costs.
Reversed.