Insurance Co. of North America v. Bonner

• Decision Date: 11 November 1895
• Citation: 7 Colo.App. 97,42 P. 681
• Parties: INSURANCE CO. OF NORTH AMERICA v. BONNER, Treasurer.
• Court: Colorado Court of Appeals

42 P. 681

7 Colo.App. 97

INSURANCE CO. OF NORTH AMERICA v. BONNER, Treasurer.

Court of Appeals of Colorado

November 11, 1895

Error to district court, Rio Grande county.

Action by the Insurance Company of North America against Olando Bonner, treasurer of Rio Grande county, to enjoin the collection of a tax. A demurrer to the complaint was sustained, and plaintiff brings error. Affirmed.

Chas A. Merriman, Wm.M. Maguire, and H.C. Charpiot, for plaintiff in error.

Jesse Stephenson, for defendant in error.

REED P.J.

Plaintiff in error is a foreign corporation, doing business in this state, with established agencies and agents in Rio Grande county. Defendant in error was the county treasurer of such county. The county assessor assessed the premiums collected by the agents of plaintiff during the year 1892 in such county, and the county commissioners levied a tax upon such assessment. The county treasurer, defendant, demanded payment of the company, and, as alleged in the complaint, "notified" the plaintiff "that one-half of the tax was due and payable, and must be paid on or before the 31st day of January, 1893"; and thereupon plaintiff filed a complaint asking an injunction to restrain the defendant from collecting the tax. In the absence of the district judge, the application was made to the county judge who on the 28th day of January, 1893, ordered a temporary writ of injunction to issue out of the district court, as provided by law. Counsel for defendant filed a general demurrer to the complaint, which was sustained, the temporary injunction was dissolved, and a final decree dismissing the suit entered.

The only question for review in this court is the correctness of the judgment sustaining the demurrer. The judgment of the district court must be affirmed. Tested by well-settled rules in equity practice, the complaint was fatally defective containing no allegation to warrant the court in granting injunctive relief, and no allegation giving a court of equity jurisdiction. A short analysis of the complaint will be sufficient. The first allegation necessary to be noticed is the one to which reference has already been made,--that the defendant had notified the plaintiff that one-half of the tax was due, and must be paid on or before the 31st day of January, 1893. Here the matter rests. No threat to proceed to collect, nor any action whatever taken to enforce collection. The time had not expired under the notice. From all that appears, the officer might, at the expiration of the time designated in the notice, have abandoned all attempt at collection. Certainly a claim for money alleged to be due and notice that it must be paid by a given time, is, of itself, no ground for equitable relief. The aid of a court of equity can only be invoked in such cases, if at all, to prevent injuries from illegal acts and proceedings actually existing or impending; threatened proceedings that would work irreparable injury if not restrained by injunction. It will readily be seen how far short this allegation was of what was required. No steps to collect alleged, no threats to proceed to collection, and not even a fear expressed that the officer would proceed to collect.

In a paragraph of the complaint it is alleged that the assessment and levy "were illegal and void in law, and wholly unauthorized," etc. In what respect, or why, is not stated. It can, at best, only be regarded as the expression of an opinion by the pleader, and could not be regarded as conclusive by a court without investigation. The fact stated was one to be found by the court from facts and premises stated. His conclusion may have been correct, yet, of itself, could not confer jurisdiction, nor warrant injunctive relief.

In the next paragraph it is alleged that the plaintiff had paid all legal claims for taxes for the year 1892, and had a receipt. This was only the expression of another opinion in keeping with the former, resting upon his own conclusion as to the legality of the tax remaining unpaid. If the conclusion was correct, he had, in the receipt, a full and complete defense at law to any proceeding for further collections.

The only other allegation to be noticed is the following "That in case said defendant, as treasurer of said county, is permitted to collect said illegal tax of and from the said plaintiff for the year 1892, it will work great and irreparable injury to the said plaintiff by reason of the premises aforesaid." To what preceding premises we are referred, that would make the injury irreparable, we are at a loss to know. What constitutes "irreparable injury" is well marked and defined in the books. By the term is meant that the injury must be a grievous one, a material one, and not adequately reparable in damages. Damages are called "inadequate" when those which can be obtained at law are not such as will compensate and place the parties in the position in which they formerly stood. Kerr, Inj. §§ 16, 17; Pinchin v. Railway Co., 5 De Gex, M. & G. 860; Earl of Ripon v. Hobart, 3 Mylne & K. 175; Railroad Co. v. Hattersley, 8 Hare, 90; 2 Story, Eq.Jur. § 928; Owen...