10 Utah 452 | Utah | 1894
This is an action' begun by tbe plaintiff in tbe court below to enjoin tbe collection of a tax levied in tbe county of Box Elder, amounting to tbe sum of one mill on tbe dollar of tbe plaintiff’s taxable property, tbe same being levied as a tax for tbe support of tbe indigent poor of said county. Tbe total amount of the tax which was claimed to be illegal is $366.04. Tbe plaintiff paid tbe taxes levied upon its property other than tbe one-mill tax levied for tbe support of tbe county poor. Tbe complaint alleged that plaintiff was the owner of a railway track in Box Elder county, also of tbe engines, cars, and other property used in and about tbe running and operation of its railway; that its property was assessed in tbe year 1893
It is then alleged that the defendant is county collector, and, as such officer, claims and demands payment from the plaintiff of the sum of $366.04, being the amount alleged to be excessive and illegal; that the plaintiff had refused to pay the taxes, and that the same had not been paid; that the defendant, in consequence of such refusal, and for the purpose of collecting such illegal tax, and without any other authority, on the 10th of December, 1893, seized and levied upon certain cars belonging to the plaintiff, and advertised the same for sale. It is also alleged that, unless the defendant is restrained, he will sell the property. The court below granted the restraining order and order to show cause. The' defendant appeared, and demurred to the complaint — First, that the
The first question presented is whether or not the county court had authority to levy the tax complained of. Section 2008, subsec. 1, p. 719, 1 Comp; Laws 1888, provides: “ There is hereby’ levied, and directed to be assessed and collected annually, beginning with the year 1878, an ad valorem tax on all the taxable property in the territory of TTtah, as follows: Three mills on the dollar for territorial purposes; three mills on the dollar for the benefit of district schools; and such sum as the county courts of the several counties may designate for county purposes, not to exceed six mills on the dollar.” This section, however, was amended by the act of 1890 (page 50, Sess. Laws 1890), and made to read’ as follows: “That there is hereby levied and directed to be assessed and collected annually, beginning with the year 1890, an ad valorem tax on all taxable property in the territory of Utah as follows: Two mills on the'dollar .for'.territorial
This language would seem to be quite clear, and to permit of no doubt that the limit of taxation for county purposes other than district school purposes was three mills; but the appellant contends, however, that this is limited or modified by section 187, subsec. 6, p. 299, 1 Comp. Laws 1888, which provides, among other things, as follows: “ The county courts in their respective counties have jurisdiction and power under such limitations and restrictions as are prescribed by law to provide for the care and maintenance of the indigent sick or the otherwise dependent poor, transients and residents of the county, erect, and officer and maintain hospitals and poor houses in their discretion therefor, or otherwise provide for the same; and for such purposes annually at the time appointed by law for the levying of taxes for county purposes to levy the necessary property tax therefor.” This act was passed March 8, 1888, and was in operation at the time of the passage of the act of 1890 (page 50), above quoted. The question is, does the term “county purposes,” in the act of March, 1890 (page 50, Laws 1890), include the support of the indigent, sick, or'otherwise dependent poor of the'county, or does it only include other county purposes?
It will be observed that the law, since 1878, has permitted the county to levy a tax not to exceed six mills on the dollar for county purposes. The law of 1890 limited this to three mills for county purposes, and two mills or less for the benefit of the district schools of the county. This act having been passed after the act which authorizes
This brings us to the consideration of the remaining question, has the plaintiff sought the proper remedy by endeavoring to enjoin this tax? In Dows v. City of Chicago, 11 Wall. 110, the supreme court, in passing upon this question, say, speaking of injunctions against tax collectors: “No court of equity will therefore allow its injunctions to issue to restrain their action, except where it may be necessary to protect the rights of the citizen 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 upon the title of the complainant, before the aid of a court of equity can be invoked.” Mr. High, in his excellent work on Injunctions, at section 492, says: “A tax will not be enjoined because of its alleged illegality when it is not shown that its enforcement will lead to a multiplicity of suits, or produce" irreparable injury, or throw a cloud upon the title to real
It is contended by the respondent that, while the property levied upon is personal property, still- there is no showing that it is sufficient to pay the tax; and that there may be a residue unpaid, which would be a cloud upon the real estate; and that, therefore, the case comes within the authorities above cited. The answer to this proposition is found* in the opinion in Henry v. Gregory, supra, delivered by Cooley, J., where the following apt language is used by that eminent jurist in passing upon this question: “A levy has been made upon the personal property of Isaac Henry to satisfy the tax. The bill does not show whether or not the levy was sufficient, but, in the absence of any distinct allegation on that subject, we cannot