Albers v. Russell ( 1896 )

The facts as established by the petition and answer were:

1. That on October 30, 1895, relator filed a bill in the circuit court for the county of Muskegon, in chancery, against the city, of North Muskegon and its treasurer, in which he alleged:

a — The municipal and representative character of the defendants respectively.

b — That the defendant city had undertaken to levy certain taxes in the year 1895 against relator, and against his lands and personal property, describing two parcels of land, giving the total amount of tax levied upon each, and averring that the defendant city claimed á lien upon said several parcels of land to the amount of the tax assessed against each; also stating the total amount of personal property tax, and that the defendant city claimed a lien upon the personal property of relator to secure and enforce the payment of the amount of said tax, and that all of said taxes were a valid charge and debt against relator.

c — That each and every of said taxes were illegal and void for reasons set forth in the bill.

d! — That the taxes aforesaid had been spread upon a pretended tax roll by the assessor of said city, and levied against relator and his property, and appear to be a charge against both; that the assessor had affixed to said pretended roll his warrant in due form, commanding the defendant treasurer to collect said taxes by distress and sale of relator’s property; that said roll was then in the hands of said officer, who claimed that he had the right and that it was his duty to collect said taxes from relator as commanded in said warrant.

. e — That the defendant city was and for more than a year had been unable to meet its obligations, and that by reason of the depreciated condition of the taxable property in said city and the small value thereof, and its great indebtedness said city was insolvent.

2.That on October 30, 1895, upon the order of a circuit court commissioner of the county of Muskegon, and upon the filing of a bond in a penalty of $500, an injunction was issued requiring the defendants to desist and refrain from collecting or attempting to collect by distress any of the taxes for the year 1895 assessed and levied against the relator or his property until the further order of the court.

3. That the defendants’ answer admitted the averments of the bill as to the levy of the taxe's, and denied the allegations of the bill as to their illegality, etc.

4. That the respondent, in answer to the statement in relator’s petition that he had no other specific legal remedy, and could not have adequate relief without the aid of a writ of mandamus, gave it as his opinion that relator could have adequate legal relief by paying the taxes in controversy under protest, and suing to recover back the amount so paid, and further suggested as a conclusive reason why the writ asked for should not issue that the circuit court commissioner had no authority to grant the injunction because such action was prohibited by section 114 of the general tax law of 1893.