Town of New Decatur v. Nelson

• Decision Date: 10 April 1894
• Citation: 15 So. 275,102 Ala. 556
• Parties: TOWN OF NEW DECATUR v. NELSON.
• Court: Alabama Supreme Court

15 So. 275

102 Ala. 556

TOWN OF NEW DECATUR v. NELSON.

Supreme Court of Alabama

April 10, 1894

Appeal from chancery court, Morgan county; Thomas Cobbs, Chancellor.

Suit by J. M. Nelson against the town of New Decatur. From an order overruling defendant's motion to dissolve a temporary injunction, defendant appeals. Reversed.

The bill in this cause was filed by the appellee, J. M. Nelson against the town of New Decatur, and prayed to have the said defendant perpetually enjoined from selling the lands of the complainant for the payment of certain taxes, which were assessed, as alleged in the bill, without authority of law. The respondent demurred to the bill, and moved to dismiss the same for the want of equity, and also moved to dissolve the temporary injunction which had been previously issued. Upon the hearing of the cause upon the demurrer and these motions the chancellor overruled each of them; and the respondent now brings this appeal, and assigns the decree of the chancellor as error.

W. W Callahan and E. W. Godbey, for appellant.

G. A Nelson and W. A. Johnson, for appellee.

PER CURIAM.

It is certainly the general rule that the collection of taxes will not be arrested by injunction. It has its reason in public policy, which cannot lend its sanction to any remedial proceeding which might clog the machinery of civil administration. In addition to illegality or irregularity in the imposition of the taxes, or in the process of the collection, to borrow the language of Mr. High, "there must be some special circumstance 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." High, Inj. § 485; Insurance Co. v. Lott, 54 Ala. 499; City Council v Sayre, 65 Ala. 564; Land Co. v. Ayres, 62 Ala. 413; Bank v. Mayor, Id. 284; Mayor v. Baldwin, 57 Ala. 61; Cooley, Tax'n, p. 760.

The averments of the bill and its amendments, in which the complainant sets forth his causes of complaint, may be summarized as follows: That in July, 1893, the town of New Decatur assessed and caused to be levied on complainant's lands a certain pretended tax, "and your orator says said defendant corporation had no authority so to levy said alleged taxes against him. *** That said defendant town, without any authority therefor, or any right so to do, and without first having made legal demand for said taxes, caused said property to be advertised for sale as delinquent in the payment of said taxes, *** and is threatening and is about to sell said lands for said alleged taxes, *** which taxes your orator alleges and charges were not assessed as the law required, nor as the charter of said town required, in this, to wit: That a large part of said alleged taxes is claimed in certain special improvements made in and upon said streets of said city, but not upon any street to which your orator's said land was adjacent or bounding. That said alleged taxes are illegal and void, as against your orator, for this, to wit: Your orator's said real property herein described is not now, and has not for a long time been, within the control, jurisdiction, and boundary of said town. Reference is had to the act of 1892 and 1893 (pages 319 and 320), and orator avers that his said property is west of said Danville road-the corporation line which is asked to be considered. And complainant avers that the taxes the corporation is about to collect is not for the bonded indebtedness of the city, for which the property may be liable under the amended statute. That your orator's said property is not subject to the payment of said tax, for the reason that no legal assessment and levy of taxes thereon has been or could be made by said town against your orator's said property, and that there is no authority in law for the sale of the said real property for the collection and payment of said alleged taxes, so alleged to be due said defendant town from your orator. Your orator charges that said pretended advertisement is insufficient in law to authorize the sale of said described lands, in this, to wit: Said lands are not properly or sufficiently described, but notwithstanding their attempt to sell the same under said advertisement, the same as if it was sufficient; and a cloud has thereby been placed on your orator's title thereto, and said sale will be made by said defendant unless restrained by your honor's order." We have now copied, substantially, all the averments of the bill, as amended, which tend to give it equity.

The corporation taxes alleged by the town of New Decatur to be due to it for the year 1892 is the subject of this suit, and the severely-contested question is whether the lots mentioned in the bill are and remain subject to corporation taxation for that year. The lots lie in the western part of the town as originally incorporated. Under the original act of incorporation, approved February 13, 1889 (Sess. Acts, 361), the western boundary of the town is estalished as follows: "Beginning at the southeast corner of the yards of the South & North Alabama Railroad, about one hundred and fifty feet northwestwardly from the cotton-compress lot; thence southwestwardly about five blocks with the present south line of the lands of the Decatur and Mineral Land company to the center line of Sixth avenue west; thence northwestwardly along the center line of said Sixth avenue west, about one block to the center line of the Old Danville road; thence northwestwardly with the center line of said Danville road to the present south corporate line of the town of Decatur." The amendatory act was approved February 8, 1893 (Sess. Acts, 319). It changed the western boundary of...