City of Gadsden v. American Nat. Bank, 7 Div. 137.

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM. PER CURIAM.
Citation144 So. 93,225 Ala. 490
Decision Date18 June 1932
Docket Number7 Div. 137.

Rehearing Denied Oct. 27, 1932.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill for injunction by the American National Bank against John A Camp, as Tax Collector, and the City of Gadsden. From a decree overruling a demurrer to the bill and granting the injunction, respondents appeal.

Reversed rendered, and remanded.

THOMAS J., dissenting.

M. C Sivley, of Gadsden, for appellants.

Inzer, Inzer & Davis, of Gadsden, for appellee.


This bill is filed by the appellee, American National Bank, against the respondents, John A. Camp, as tax collector of Etowah county, and as ex officio tax collector of the city of Gadsden, and the city of Gadsden, a municipal corporation, to use the language of appellee's brief, "for the purpose of enjoining said John A. Camp, as Tax Collector of Etowah County, Alabama, and as Tax Collector of the City of Gadsden, from levying on any of the property of the appellee or of its shareholders, and from selling the same for the payment of any taxes assessed against the corporate shares of appellee; and also to restrain such Tax Collector from collecting such taxes and from threatening, harassing or vexing the complainant or its stockholders in an effort to collect the same or any part thereof."

The ground upon which the bill rests the right to relief is: "That a large amount of moneyed capital in the hands of individual citizens, corporations and other organizations which is exempt from taxation or which was not taxed at as great a rate as assessed against the corporate shares or capital stock of appellee, was used in competition with appellee in the territory in which it did business. The contention of the appellee in said bill is that section 5219 of the Revised Statutes of the United States, as amended, being section 548, title 12, of the United States Code Annotated, prohibited the State of Alabama, and its political subdivisions from taxing complainant's corporate shares or capital stock at a greater rate than is assessed upon other moneyed capital coming into competition with the business of appellee, and that, therefore, the tax which the said John A. Camp was attempting to collect on the shares or capital stock of the American National Bank was illegal," etc.

"It must be regarded as settled, that taxpayers can not resort to a court of equity, to enjoin the collection of a tax claimed to be illegal, unless with the illegality of the tax there is connected some recognized ground of equitable jurisdiction." City Council of Montgomery v. Sayre et al., 65 Ala. 564; City of Ensley v. McWilliams, 145 Ala. 159, 41 So. 296, 117 Am. St. Rep. 26; Adams, Tax Collector, et al. v. Southern Railway Co., 176 Ala. 320, 58 so. 397; Mayor, etc., of Mobile v. Baldwin, 57 Ala. 61, 29 Am. Rep. 712.

In the case first above cited, a bill filed to enjoin a municipal corporation from collecting an illegal tax, it was observed: "If bills of this kind could be entertained, municipal corporations would be placed at the mercy of reluctant and litigious tax-payers, embarrassed in all their operations, and incapable of preserving the peace, order, and proper government of the localities to which their powers extend." City Council of Montgomery v. Sayre et al., 65 Ala. 564, 566.

And in Mayor, etc., of Mobile v. Baldwin, 57 Ala. 61, 72, 29 Am. Rep. 712: "Admitting the tax is illegal and void, the corporation is merely pressing the payment of an unfounded, unjust demand, and threatening the commission of a personal trespass, to compel payment. If it persists, the complainants have an adequate remedy at law. In Dillon on Munic. Cor. § 738, it is laid down that 'equity will not restrain even an illegal and void tax assessment where it is sought to be enforced against personal property only, since here the party has an adequate remedy at law; nor in such a case will equity interfere because several join in the bill asking it.' In Dows v. City of Chicago, 11 Wall. 108 (20 L.Ed. 65), which was a bill to enjoin the city from collecting a tax on shares of the capital stock of a national bank, the court says: 'Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of shares for its payment constitute themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction, before the preventive remedy by injunction can be invoked."' This is a case in point, and is in harmony with the most recent decisions of the United States Supreme Court. Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447; Stratton, Secretary of State of Illinois v. St. Louis Southwestern Railway Co., 284 U.S. 530, 52 S.Ct. 222, 76 L.Ed. 465.

Nor does the bill bring the case within the influence of Shanks et al. v. Winkler et al., 210 Ala. 101, 97 So. 142. There the levy was a special tax for school purposes, and the single levy covered a period of six years, and the levy constituted a lien on all the lands within the school district, and constituted a cloud on the title of the taxpayer, and it was there observed: "The tax has been levied for a period of 6 years, and will be collected annually, so that a multiplicity of actions at law will be necessary for its recovery from year to year in the absence of the equitable relief sought by the bill. The case averred involves no necessity for an apportionment of taxes, no occasion for a new assessment, no interference with the regular revenue of the state or county, and, in our judgment, the considerations stated above suffice to sustain the equity of the bill." Shanks v. Winkler, 210 Ala. 103, 97 So. 142, 143.

That is not so here. The levy is for a single tax year, and the tax may be paid under protest, and, if illegal, may be recovered in a single action at law, at the suit of appellee. Ward, Tax Collector, v. First Nat. Bank of Hartford (Ala. Sup.) 142 So. 93. This affords a complete and adequate remedy at law. Matthews v. Rodgers, supra.

We are therefore of opinion that the bill is without equity, and the circuit court in equity erred in overruling the demurrer to the bill and in granting the injunction, and the decree of the circuit court is reversed and one here rendered sustaining the demurrer and dissolving the injunction, and the cause will be remanded.

Reversed, rendered, and remanded.

All the Justices concur, except THOMAS, J., who dissents.

THOMAS J. (dissenting).

The suit was for injunction to prevent the collection of city taxes alleged to be illegally assessed (under authority of section 3095 of the Code), and the fact of illegality is set up by extraneous facts that are averred.

The trial court overruled demurrers to the bill and granted the temporary injunction conditioned upon the giving of the bond prescribed by the decree. The ruling on demurrer presents the appeal of the city of Gadsden.

In a case where there is the right of injunction to preserve the statu quo, or protect from irremedial injury, etc., injunction pendente lite may issue on sufficient bond of indemnity, with or without notice, as warranted by the facts, and prior to the filing of answer. Section 8304, Code; Lynne v. Ralph, 201 Ala. 535, 78 So. 889; Kirk v. McTyeire, Mayor, et al.,

209 Ala. 125, 95 So. 361.

It is the general rule that, unless some recognized ground of equitable interference is shown, "other than mere illegality, hardship, or irregularity in respect of the levy or assessment of the tax, a bill to enjoin its collection will not be entertained." Shanks et al. v. Winkler et al., 210 Ala. 101, 97 So. 142, 143, to restrain the enforcement of a special school tax; Adams Tax Collector, et al. v. Southern Railway Co., 167 Ala. 383, 52 So. 439, action to recover the payment of a special road tax levied by the county; Mayor, etc., of Mobile v. Baldwin, 57 Ala. 61, 71, 29 Am. Rep. 712, bill to enjoin collection of tax for county purposes on personal property, and denied on grounds of mere illegality; Alabama Gold Life Ins. Co. v. Lott, Tax Collector, 54 Ala. 499, 508, 509, sought to enjoin collection of taxes on money loaned; Town of New Decatur v. Nelson, 102 Ala. 556, 15 So. 275, injunction against the collection of municipal taxes where the corporate limits are enlarged; Adams, Tax Collector, v. Southern Railway Co., 176 Ala. 320, 323, 58 So. 397, to enjoin collection of tax for county purposes; City of Ensley v. McWilliams, 145 Ala. 159, 41 So. 296, 117 Am. St. Rep. 26, bill to enjoin the city from selling lands for taxes; Oates v. Whitehead, Tax Collector, 173 Ala. 209, 55 So. 803, sought to enjoin the raising of taxes by the state tax commission; Strenna City Council of Montgomery, 86 Ala. 340, 5 So. 115, injunction against the sale of land for municipal taxes.

Speaking generally, where the municipal tax is illegal, because levied (1) under an unconstitutional statute, or (2) for an unlawful purpose, or (3) assessed on persons or property not subject to taxation, it has been held sufficient grounds to justify a court of equity to enjoin the proceedings, provided the circumstances bring the case under the recognized head of equity jurisdiction, or there is no adequate remedy at law for redress of the injury. 37 Cyc. 1258, 1259; City Council of Montgomery v. Sayre, 65 Ala. 564; Mayor Aldermen, etc., of Mobile v. Baldwin, supra; Town of New Decatur v. Nelson, supra; Mayor & Council of...

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