Van Cott v. Board of Supervisors , 18 Wis. 247 ( 1864 )

By the Court,

DixoN, C. J.

After a careful examination of the subject, we are persuaded that a court of equity has no jurisdiction to restrain the collection of taxes illegally or improperly assessed upon personal property. Our reasons, in brief, are, that by the wrong, such as is complained of here, no irreparable mischief is threatened — no cloud is thrown over the title to real estate, -which a court of equity may be called upon to remove; and the plaintiff has an ample remedy at law. To say nothing of the special remedies given by statute, which, with diligence and attention on the part of the tax payer, will often prove effectual, and nothing of the remedies by certiorari, mandamus, prohibition &c., as heretofore applied in such cases, it seems to us that the remedy by action against the assessorsj in cases where they exceed their jurisdiction, and the right which the party always has to recover back the money paid for taxes illegally imposed, if collected by distress and sale of his goods, or if, upon the levying of a warrant, he pays the tax to save his property, constitute a complete answer to the application to a court of equity to restrain or prevent the collection. With this right of action against the corporation or body politic to which the money is paid or for which it is collected, to recover it back, there would seem to be no more propriety in the interference of equity to stay the proceeding than in the most common case of trespass or wrong. There can be no pretense of irreparable injury. At most it is but a proceeding to take such a sum of money, or such a definitely ascertainable value of property, for which, in the judgment both of law and of equity, the return of a like sum will be full compensation.

The principle that the county is liable in an action at law for moneys illegally collected by its treasurer for taxes, was sanctioned by this court in Norton v. Supervisors of Rock County, 13 Wis.,611; and the numerous authorities to the same effect will be found very fully collected by Judge Woodruff in his opinion in Wilson v. The Mayor &c. of New York, 4 E. D. Smith, 675; Same case, 1 Abbott’s Pr. R., 4. And in that opinion will also be found the most able and thorough examination of the jurisdiction of equity in such cases, and review of the authorities, to be met with, fully justifying the encomiums of Judge Duer in N. Y. Life Insurance Co. v. Supervisors &c. of New York, 4 Duer, 192, and rendering particular comment or investigation on our part quite unnecessary. Besides tbe case last cited, it was followed in Chemical Bank v. The Mayor &c. of New York, 1 Abb. Pr. R., 79; and the same question was decided in the same way by the supreme court of Connecticut in 1856. Dodd v. City of Hartford, 25 Conn., 232.

Wilson v. The Mayor &c. was in almost every respect like the case at bar. The inability of the receiver of taxes, and of the constable to whom the warrant was issued, to respond in damages, was alleged; but that circumstance was held to furnish no ground for equitable relief, for the reasons already suggested.

Whether the question of jurisdiction is properly presented in this case, we are unable to determine. We assume that it is, from the fact that it is presented and argued in the briefs of counsel on both sides. The cause comes up by appeal from an order dissolving a temporary injunction. The printed case contains nothing but the complaint, and the record shows nothing but the motion and order to dissolve. We are informed, however, by the brief of the appellant’s counsel, that the defendants demurred to the complaint and at the same time moved to dissolve the injunction on the complaint itself. What the ground of demurrer was, whether that the court had no jurisdiction of the subject of the action, or that the complaint does not state facts sufficient to constitute a cause of action, we are not informed.

Judge Woodruff seems to be of opinion that, to take advantage of the want of jurisdiction, the demurrer must be placed distinctly on that ground. He, notwithstanding, determined the question of jurisdiction, upon a demurrer that the complaint did not state facts to constitute a cause of action, counsel raising no objection. Whether the defendant waives the objection and consents to the jurisdiction by not demurring on that distinct ground, or whether the question of jurisdiction can be properly presented on a motion to dissolve a temporary injunction, we will not now undertake to say. It is enough that counsel have treated the question as fairly and properly presented.

Order affirmed.