City Council v. Sayre , 65 Ala. 564 ( 1880 )

Per Curiam.

— 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. — Ala. Gold Life Ins. Co. v. Lott, 54 Ala. 499; Mayor v. Baldwin, 57 Ala. 61; Elyton Land Co. v. Ayres, 62 Ala. 413. The principle, is fatal to this bill in any of its aspects.

It is apparent that, if all the objections to the taxes assessed could be sustained, there remains a considerable amount which is justly due, and ought to have been paid. There is no averment in the bill, that the complainants made any effort to procure a separation of the taxes confessedly legal, from those which are supposed to be illegal; nor was there any tender of payment; nor is there in the bill an offer to pay. We quote and adopt the language of the Supreme Court of the United States, in State Railroad Tax Cases, 92 U. S. 616 : “ Before complainants seek the aid of the court, to be relieved of the excessive tax, they should pay what is due. Before they ask equitable relief, they should do that justice which is necessary to enable the court to hear them. It is a profitable thing for corporations or individuals, whose taxes are very large, to obtain a preliminary injunction as to all of their taxes, contest the case through several years of litigation, and, when in the end it is found that but a small part of the tax should be permanently enjoined, submit to pay the balance. This is not equity. It is in direct violation of the first principles of equity jurisdiction.”

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. On the authority of the cases cited, and of Winter v. City Council of Montgomery, at the present term, the decree of the chancellor must be reversed, and a decree here rendered, dissolving the injunction heretofore granted in this cause, and dismissing the original bill. The appellees must pay the costs in the Court of Chancery, to be taxed by the register, and the costs in this court.

Stone, J. not sitting.