ROBINSON v. CITY OF WILMINGTON et al., 65 F. 856

BRAWLEY, District Judge. The appellant, as receiver of the First National Bank of Wilmington, N. C., sought to enjoin the appellees, the city of Wilmington and its collector of taxes, from enforcing the collection of a tax assessed upon certain shares of bank stock alleged to have been illegally listed.

It appears that the capital stock of Ihe bank consisted of 2,500 shares, of the par value of $1.00 each, and that 1,096 of these shares, valued at $76,720, the properly of persons residing in the city of Wilmington, were returned by the cashier and listed by the tax lister in said city for taxation in the name of the bank. By the law of North Carolina, (Pub Acts 1893, c. 226, § 42), these shares should have been listed in the names of the individual shareholders, aud the taxes assessed thereon should have been paid by each respective shareholder at the place of his domicile.

It is provided by the same statute (Id. c. 826. 86) I hat, if (here is any error in the assessment roll in the name of ihe person, the name may be changed, and the error corrected In the manner therein prescribed. It is further provided (Id. c. 826, § 78) that in every case where a person claims that any tax or any part thereof is, for any reason, invalid, he may pay the same, and within 20 days may demand repayment thereof; and, if the same is not repaid in 90 days, he may sue for its recovery, and recover judgment against the city, town, or county imposing the tax for the full amount paid, with interest, etc.

Assuming that it was Illegal to list these shares for taxation in the name of the bank in solido instead of in the names of the individual stockholders to whom th.e> belonged, it would seem that the revenue laws of the state of North Carolina provide a sufficient system of corrective justice in respect to taxes illegally imposed in appeals to the executive department of the government, and, if satisfaction is not thus obtained, Ihe party aggrieved has a remedy provided for the recovery of the tax paid by suit.

For obvious reasons, courts of equity are reluctant to interfere with the taxing power of the states in the course of its orderly administration.

They were not intended to furnish the corrective for every injury or abuse of power w'hich may be committed by the officers of a state government, and so long- as the laws prescribing tbe methods of assessment and subjects of taxation do not entrench upon the legitimate authority of the United States, or violate any rights recognized or secured by its coustitutiou and laws, courts of equity of the United States will not interpose between the state and its citizens, unless a case of equitable cognizance is presented.

The record in this case does not disclose the grounds upon which the court below' acted in refusing the injunction and dismissing the bill. They ivill probably be found in those general principles of equity jurisprudence which govern alike the courts of the state and of the United States. The collection of taxes is a legal proceeding to enforce the payment of a debt due the public, and, like proceedings at law upon a private claim, equity will only interpose to prevent injustice by the unfair use of legal process vrhen the law provides no adequate remedy for such abuse.

The leqy of taxes not being a judicial function, courts have no power to make new assessments, or to direct them to be made, or to apportion the taxes when collected; and, inasmuch as the experience of ages has demonstrated that collection has to be enforced by

summary and stringent measures, other instrumentalities and other modes of procedure are necessary than those which belong to courts of justice. Accordingly, under our theory and system of government, the officer's who assess and collect, and the manner in which they shall exercise their functions, pertain exclusively to the legislative and executive departments. However irregular, unjust, onerous, or oppressive these proceedings may seem to be, there must be some special circumstances bringing the case under some recognized head of equity jurisdiction before the preventive remedy by injunction can be invoked.

Irregularity or illegality alone constitutes no ground for such interposition. Equity cannot attempt to prevent, any more than it will redress, all wrongs. It could not assume this power without disastrous consequences to the state, for there would be no stopping point short of enjoining all taxes whenever any ivregularity had intervened.

There may be cases where the particular circumstances or peculiar hardships would justify an exception, but the general rule and fundamental principle is that a court of equity is not a court of errors to review the acts of public officers in the assessment and collection of taxes, and where a particular manner is provided by law, or a particular tribunal designated, for the se ttlemerit and decision of errors or irregularities in behalf of persons dissatisfied with a tax, they must avail themselves of the legal remedy thus prescribed, and not be allowed to waive such relief, and seek in equity to enjoin the collection of the tax.

High, Inj. 493; State Railroad Tax Cases, 92 U. S. 613; Kirkland v. Hotchkiss 100 U. S. 497; Shelton v. Platt, 139 U. S. 591, 11 Sup. Ct. 646; In re Tyler, 149 U. S. 188, 13 Sup. Ct. 785; Dows v. Chicago, 11 Wall. 108.

Our attention has not been brought to any well-considered case where a court of equity has interfered by injunction to prevent the collection of a tax, unless the circumstances have brought it within some of the recognized foundations of equitable jurisdiction, which are substantially these: Where the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or, in case of real estate, throw a cloud upon the title. The case before us does not come within these exceptions.

All that can be said of it is that the officer to whose judgment the law confided the listing of property for taxation has committed an error of judgment in listing as the property of the bank, for taxation in the city of Wilmington, what should have been listed as the property of the shareholders in the same place, and, even if the court could properly substitute its judgment for that of the officer specially charged with that duty, it would not do so, where there was a tribunal expressly created for the correction of Ms irregularities and mistakes. In Cummings v. Bank, 101 U.

S. 153, it was asserted that the tax was illegal, was not collectible from either the stockholders or the bank, and, allhough there were other grounds of equitable cognizance^ it was held that, (.he court might interfere to prevent a multiplicity of suits, for if the bank paid the tax, and deducted it from each, shareholder’s dividends, the shareholders would have the right to recover from the bank.

The facts of this case do not bring it within that ruling, for it is not contended here that the tax on the shares is illegal, but simply that the shares ought to have been listed in the names of the shareholders, and not in the name of the bank, as was done by the cashier; and it is admitted that the tax upon the shares held by citizens of Wilmington was not illegal.

It appearing that the complainant had an adequate remedy at Jaw, and it not appearing that there are any of those circumstances which bring this case within the well-established lines which mark the jurisdiction of equity, it is our opinion that the decree of the circuit court dismissing the bill was correct, and should be affirmed; and it is so ordered.