The record-union., 1897-11-06

Inc FOlltlcal COOe. Inc supreme court
affirmed the decision Of the lower court
which directed recovery Of a portion
of said taxes 50 paid under protest.
A very similar provision to Section
1919 of the Political Code of this State
is contained in the Statutes of the State
of Tennessee, and which has been up
held and sustained by the Supreme
Court Of that State, and also by the
Supreme Court Of the United States.
Tennessee VS.. Snead, SO U. S., SO. "A
U. S. Supreme Court Reports, gill
In the case Of Dows VS.. Chicago. IS
U. S.. 10S, Mr.. Justice Field. delivering
the opinion Of the court, said:
1.-The equitable powers of the court
can only be invoked by the presentation
of case of equitable cognizance. There
can be no such case, at least in the Fed
eral Courts. where there is plain and
adequate remedy at law, except where
the special circumstances which we
have mentioned exist. The party of
whom an illegal tax is collected has, or
dinarily, ample remedy, either by ac-
ton against the officer making the col
lection, or the party to whom the tax is
laid. Here such remedy existed. II
the tax was illegal, the plaintiff protest
ing against its enforcement might have
had action, after it was paid, against
the officers of the city to recover back
the money, or he might have prosecuted
either for his damages. No irreparable
injury would have flowed TO him from
its collection. nor would he have been
compelled to resort to a multiplicity of
suits to determine his rights. His en-
oil i'm, ha hQpp hracp6
in single action. We see no ground for
the interposition of court of equity
which would not equally justify such
interference in any case of threatened
invasion of real or personal property"
This language of Mr.. Justice Field is
quoted with approval by Mr.. Chief JUS
tice Fuller in the late case of Shelton
VS.. Platt reported in the 139 U. S.,
page 600. where many other cases sus-
tanning the same general principle are
collated and approved, and the general
proposition is therein announced by the
court that injunction will not lie against
an officer to enjoin the collection of
taxes or the sale Of property for that
purpose, unless it appears that 1t is
absolutely necessary to protect the
rights of the citizen whose property is
taxed, and that he has no edaquate rem
edy by the ordinary processes of the law.
Justice Crockett of the Supreme
Court of California, quotes with ap-
proval the following language employ
ed by the court in the case Of Dows VS..
Chicago, supra:
ANY delay in the proceedings of the
officers, upon whom the duty is devolved
of collecting taxes, may Gerange the
operation of Government and thereby
cause serious detriment to the public.
No court of equity will, therefore, allow
its Injunction to issue to restrain their
action, except where it may be neces-
sary to protect the rights of the citizen
whose property is taxed, and he has no
adequate remedy by the ordinary pro-
cesses of law. 1t must appear that the
enforcement of taxes would lead to
multiplicity of suits or produce an ir-
reparable injury, or, where the property
is real estate, throw a cloud upon the
title of the complainant before the aid
of court of equity can be invoked"
(Sav. & Loan Soc. VS.. Austin, 46 Cal,
4S9)
While, in the action at bar. there is
an averment that the plaintiff has no
plain, speedy or adequate remedy at
law, nevertheless it is the opinion of
the court that the facts alleged in the
complaint do show, when considered in
conjunction with Section 1919 of the
Political Code Of this State, that the
plaintiff has such plain, speedy and ad-
equate remedy at law. It is true that
that section does not contain any pro-
vision whereby the plaintiff might re-
n int nd &c s,,
to recover any money paid Hereunder,
yet costs would be a necessary incident
of a judgment in plaintiffs favor for the
recovery of such money, and the inter-
est which would accrue between the
date of payment and the recovery would
be but a small item.
1t is clearly the intention of the law
making power, from a perusal of said
Section 1919 of the Political Code, to
furnish the taxpayer a simple and ef-
fective means of testing the validity of
tax, and at the same time avoid any
serious interference with the machinery
of the Government.
Courts, other than those of last re-
sort, should be loath to set aside or de-
clare imperative, statutes where the
plain intent of the law-making power is
70 uphold the orderly conduct of the
Government, unless it clearly and un-
mistakably appears that the taxpayer
will suffer irreparable injury, and that
he has no other adequate remedy. The
plaintiff here, by the payment Of
$500 - to the Tax Collector under pro-
test as provided in Section 1919 of the
Political Code, will avoid the i'll effects
of the threatened sale which he seeks
to enjoin, and at the same time preserve
his right to recover the money in a
proper action therefor, and also test as
effectually the legality of the tax as it
can possibly be contested in his present
action.
/ am therefore Of the opinion that the
complaint does not state sufficient facts
to authorize the granting of an injunc-
ton, and the demurrer viii be sustained.
Dated November ;, 1897.
JOSEPH w. HUGHES,
Judge of the Superior Court.