24 Or. 452 | Or. | 1893
delivered the opinion of the court:
This is a suit for an injunction to restrain the sheriff of Clatsop County from executing a tax-warrant, issued out of the county court, directing him to collect certain delinquent state and county taxes for the year 1891. The general ground on which relief is sought is that the proceedings in making the assessment roll and levying the tax thereon were so irregular and illegal as to render such tax void. A demurrer to the complaint for the insufficiency of the facts alleged was interposed and sustained, whereupon, the plaintiffs declining to further plead, a decree was rendered by the court dismissing the suit, from which decree this appeal is brought.
The averments of the complaint show that the assessment roll filed by the assessor was crude and imperfect; that it was filed after the time required by law, without any order extending the time for such filing, and that there were various irregularities in the subsequent proceedings in connection therewith; but the main allegations upon which the plaintiffs rely, as showing the invalidity of the taxes assessed, and their right to the relief sought, are that the assessor did not give the notice required by law of the meeting of the board of equalization ; that no meeting of such board was held at any time for the purpose of examining the assessment roll so filed
It is also alleged that the county court made an order levying nineteen and one half mills on the dollar upon all the taxable property in the county, and although there is an averment that the court was without authority to make such order, it is sufficient to say that there is no doubt the court had jurisdiction and power to make such order.
Mr. High says: “It may be laid down as a general rule that equity will not interfere by injunction with the collection of a tax which is alleged to be illegal or void, merely because of its illegality, hardship or irregularity, but there must be some special circumstances attending the threatened injury to distinguish it from a mere trespass, and thus to bring the case within some recognized head of equity jurisprudence; otherwise the person aggrieved will be left to his remedy at law”: 1 High on Injunctions, § 485. And again: “Nor will equity interfere by injunction with the enforcement or collection of taxes because of irregularities, illegalities or errors in the assessment of the tax, or in the proceedings incident to its collection, or in the execution of the power conferred upon taxing officers, but in all such cases the taxpayer seeking relief will be left to pursue his remedy at law. And where it does not appear that the established principle of taxa
Upon the other hand, it must be admitted, there are authorities of great weight and respectability opposed to the doctrine announced in such cases. They are cited and referred to by Mr. High, who says, “the decisions are neither few in number, nor wanting in respectability, which have inclined to a departure from the doctrine of non-interference in equity with the collection of taxes; and it will be found, as we proceed, that the courts have in many instances extended preventive relief by injunction against the exercise of the taxing power in cases where such relief was unwarranted, either upon principle or upon the clear weight of authority ”: 1 High on Injunctions, § 484; Cooley on Taxation, 536, et seq. In view of the authorities, the considerations which influenced a court of equity to restrain the collection of a tax are confined to cases where the tax itself is not authorized, or, if it is, that such tax. is assessed upon property not subject to taxation, or that the persons imposing it were without authority in the premises, or that they have proceeded fraudulently. Nor is this all. The plaintiff must, in addition to illegality, hardship, and irregularity, bring his case within some of the recognized foundations of equity jurisprudence and observe the maxim that “He who seeks equity at the hands of a court must first do equity” by paying or tendering the amount of taxes properly chargeable against his property. The rule is founded upon the principle that public policy requires that the revenues should be promptly collected by the agencies established by law for that purpose, and that equity should not interfere with tax proceedings because they are faulty or
Applying these •principles to the case at bar, we find that the plaintiffs have alleged and specified in their complaint the true cash value of their property liable to taxation, thus showing the excess in its valuation which they would have asked the board to remit, and disclosing on the face of their complaint the amount of taxes chargeable to their property which they concede is liable for. In view of these admissions, and the duty incumbent on the owners of property liable to taxation to contribute their lawful share of the public expenses, we cannot see why plaintiffs should not pay so much of the taxes assessed as are admitted to be due, and can plainly be seen they ought to pay. Is it just or equitable that they should pay nothing because their assessment is too high when they concede an amount for which their property is liable? If the board had sat and an opportunity had been afforded them to appear and secure the remission of the excess, they would have been bound to pay the amounts chargeable against their property as corrected. Why, then, should they not pay so much of the taxes assessed as they concede liability for before they ask the aid of a court of equity to be relieved of the excess? The court thinks that, notwithstanding the irregularities in the proceedings, and the failure of the board of equalization to hold its session at the time prescribed by law, by reason whereof the plaintiffs were deprived of an opportunity to be heard and secure the remission of the excess in the valuation of their property, which constitutes their grievance, they ought, nevertheless, to pay what is conceded to be due before the injunction should be granted.
The decree is therefore affirmed.