Wason v. Major

• Decision Date: 11 October 1897
• Parties: WASON v. MAJOR, County Treasurer, et al.
• Court: Colorado Court of Appeals

50 P. 741

10 Colo.App. 181

WASON v. MAJOR, County Treasurer, et al.

Court of Appeals of Colorado

October 11, 1897

Appeal from district court, Chaffee county.

Action by M.V.B. Wason against Alexander H. Major, acting treasurer of Mineral county, so called, the board of county commissioners of Mineral county, so called, Daniel H. Soward I.W. Covert, and Frank E. Wheeler, for injunction against the collection of taxes. A demurrer to the complaint was sustained, and judgment was rendered for defendants, and plaintiff appeals. Affirmed.

Carpenter & McBird and E.F. Richardson, for appellant.

Albert L. Moses, for appellees.

WILSON, J.

The county of Mineral was created by an act of the legislature which was approved March 27, 1893. Plaintiff was the owner of certain lands embraced within the limits of the new county and formerly belonging to the county of Rio Grande. The authorities of the new county assessed these lands, and also other property of plaintiff, and levied a tax thereon for the year 1893. Plaintiff sought to enjoin the collection of this tax, claiming that it was illegal for several reasons: First. That the county of Mineral was never lawfully formed or created by such pretended act, because of a defective description of its boundary lines in the act, and because after the passage and approval of the act no vote of the people residing within the territory attempted to be described was ever had or taken to confirm such creation of a county, and no consent had been obtained therefor from the property holders within any of the old counties affected by the formation of the new one. Second. That plaintiff's property was liable to assessment, and had been assessed, in the county of Rio Grande, prior to said 27th day of March 1893, and that said Rio Grande county was, as he was informed and believed, about taking steps to declare invalid the act of the legislature creating a county out of certain territory claimed to be embraced in the so-called Mineral county; and should such action be taken, and said act be declared to be of no effect and invalid, then and in that event plaintiff would be compelled to pay the tax upon his said lands and property in the county of Rio Grande. A temporary writ of injunction was issued without notice. Subsequently defendants appeared, and demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and that the plaintiff had not the legal capacity to maintain a suit for the determination of the matters sought to be raised in the action,--as to the legality of the county of Mineral as a county of the state, or as to the constitutionality of the act creating said county. Upon hearing, the demurrer was sustained. Plaintiff thereupon elected to stand by his complaint, and, judgment being rendered in favor of defendants, he appealed therefrom.

In the argument of this case, plaintiff did not urge any of the matters set forth as impeaching the regular and lawful formation of the county, but relied strongly upon the second ground of his complaint. It is well settled that courts of equity will not enjoin the collection of a tax solely on the ground of its illegality, or the threatened sale of property to satisfy it. Additional facts must be alleged, and plainly appear, to bring a case within some recognized head of equity jurisdiction. It must be shown that not only would the plaintiff be without an adequate remedy at law, but that the enforcement of the tax would produce irreparable injury, or lead to a multiplicity of suits, or bring a cloud upon his title. The reason of this rule is based upon the familiar principles of equity jurisprudence, and also upon public policy. State, county, and municipal governments can be carried on only from the revenues derived from taxation; and it would certainly be contrary to every principle of public policy to permit their important powers to be impaired, or their machinery wholly stopped, except for very grave and serious cause. As well and forcibly said by the distinguished Judge Cooley: "But the personal consequences are not the only ones which should be kept in view in these cases. When the illegalities complained of affect only the person complaining, an injunction which restrains proceedings as to him may cause no considerable mischief, and may very properly be awarded, if a sufficient case is made out; but when they affect the whole tax levy, as they often do, a court should be extremely cautious in awarding, on the complaint of one person, or even of several, a process which may reach the cases of others not complaining, and which may seriously embarrass all the operations of the government depending on the source of revenue, which by means of it would be stopped. Courts have frequently remarked upon the impossibility of the government calculating with any certainty upon its revenues if the collection of taxes was subject to be arrested in every instance in which a tax payer or tax collector could make out prima facie a technical case for arresting such action; and it is justly said to be much better to let an individual pay to the government the demands it makes upon him, and, if he considers them wholly or in part illegal, apply for the refunding of the money, with interest, afterwards." Cooley, Tax'n, 762. In Dows v. City of Chicago, 11 Wall. 109, in the opinion of the supreme court of the United States, concurred in by every member of the court, it was said: "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 of injunction can be invoked. It is upon taxation that the several states chiefly rely to obtain the means to carry on their respective governments and it is of the utmost importance to all of them that the modes adopted to enforce the tax levy should be interfered with as little as possible. Any delay in the proceedings of the officers upon whom the duty is devolved of collecting the taxes may derange the operations 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 necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or, where the property is real estate, throw a cloud upon the title of complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered in the absence of these circumstances, it will be found upon examination that the question of jurisdiction was not raised, or was waived." The doctrine here announced has been since repeatedly affirmed. Railway Co. v. Cheyenne, 113 U.S. 526, 5 S.Ct. 601; Shelton v. Platt, 139 U.S. 594, 11 S.Ct. 646; Express Co. v. Seibert, 142 U.S. 348, 12 S.Ct. 250. The case at bar did not come within the rule here laid down. The cloud upon the title, upon which plaintiff's counsel mainly rely as constituting irreparable injury, and on which they lay the greatest stress in urging their claim for equitable relief, was not shown by the averments of the complaint. In discussing this subject, Judge Cooley says: "If the alleged tax has no semblance of legality; if, upon the face of the...