An examination of the record discloses that none of the
complainants, save one, was assessed with a sufficient amount of
taxes, to enable him to bring the case here on appeal, and
accordingly, under the doctrine of
Russell v. Stansell,
106 U. S. 303,
and
Gibson v. Shufeldt, 122 U. S. 27, the
appeal is dismissed as to such parties.
No jurisdiction vested in the appellant's city council to make
an assessment and levy a tax for the improvements which are the
subject of this controversy until the assent of the requisite
proportion of the owners of the property to be affected had been
obtained, and the action of the city council in regard to that
question was not conclusive.
In order to justify a court of equity in restraining the
collection of a tax, circumstances must exist bringing the case
under some recognized head of equity jurisdiction, and this case
seems plainly to be one of equitable jurisdiction within that
doctrine.
When the illegality or fatal defect in a tax does not appear on
the face of the record, courts of equity regard the case as coming
within their jurisdiction.
When the authorities have jurisdiction to act, the statutory
remedy is the taxpayer's exclusive remedy, but when the statute
leaves open to judicial inquiry all questions of a jurisdictional
character, a determination of such questions by an administrative
board does not preclude parties aggrieved from resorting to
judicial remedies.
The original bill in this case was filed in May, 1892, in the
Fourth Judicial District Court of the late Territory of Utah,
against Ogden City, a municipal corporation, and its mayor and the
members of its Common Council, and it was thereby sought to
restrain the city and its officers from levying assessments upon
the real estate of the plaintiffs and other similarly
Page 168 U. S. 225
situated, for the purpose of paving a portion of one of the
streets of the city.
To this bill a demurrer was filed, which was sustained by the
district court, and a judgment was entered dismissing the bill. On
appeal to the supreme court of the territory, that judgment was
reversed, and the cause remanded to the court below. 34 P. 53. An
answer to the bill was then filed, denying substantially the
equities of the bill. Subsequently, on April 9, 1894, a
supplemental bill was filed, bringing in additional parties
complainant and alleging that, since the filing of the original
bill, the defendants had passed the ordinance assessing the
properties of the plaintiffs, and were about to expose to sale the
real estate described in the original and supplemental bills to
satisfy the assessments, and threatened to continue to sell said
real estate annually for ten years as each installment of said
assessment became due, whereby the plaintiffs had been compelled to
pay certain amounts, stated in detail, in order to prevent a sale
of their property and to prevent a cloud upon their titles, and
that certain real estate belonging to some of the plaintiffs had
been sold by the city to satisfy the illegal assessments. The
prayers were for a decree declaring the ordinance and assessments
to be void, restraining the defendants from proceeding thereunder;
that an account be ordered of the amounts paid by plaintiffs under
protest; that plaintiffs have judgment for the same; that the sales
of real estate be set aside, and for general relief. An answer was
filed to the supplemental bill, denying specifically all of its
allegations but admitting that the ordinance in question was passed
as alleged. It alleged affirmatively that the plaintiffs were
estopped to complain as in the supplemental bill alleged; that the
same did not state facts sufficient to constitute a supplemental
complaint; that the cause of action was barred by the statute of
limitations; that there was a misjoinder of parties plaintiff, and
that there was a misjoinder of causes of action.
On the 27th day of October, 1894, findings were signed and
judgment entered giving the plaintiffs the relief prayed for in
both the original and the supplemental bill. The decree of
Page 168 U. S. 226
the court below was on appeal affirmed by the supreme court of
the territory, from whose decree an appeal was taken and allowed to
this Court.
The findings of fact were as follows:
"1. That the plaintiffs were at the date of the filing of the
complaint in this action, residents and taxpayers in Ogden City,
Weber County, Utah Territory, and brought this action, concerning a
matter of general interest to all taxpayers in said Ogden City, on
their own behalf and on the behalf of all others similarly
situated."
"2. That the defendants, except Ogden City at the time of the
bringing of this action, were the mayor and members of the Common
Council of said Ogden City, defendant."
"3. That on the 7th day of March, 1892, proceedings were had by
the Common Council of said Ogden City, as follows:"
"Finance committee recommending immediate creation of three
paying districts, as follows: District No. 2, Twenty-Fifth Street,
from the west line of Washington Avenue to the west line of Wall
Avenue."
"Councillor Dee moved to lay on the table for one week. Motion
lost."
"Councillor McManus moved to adopt the motion. Carried."
"4. That the above were the only proceedings had by said Council
of Ogden City in regard to the creation of said paying district
prior to the publication of the notice hereinbelow mentioned, and
upon the same day the following proceedings were had:"
"Councillor Spencer moved the following motion, in pursuance of
the proceedings already taken in ordering the creation of three
paving districts:"
"I move that the council adopt the accompanying notice of
intention, and that the same be published for twenty days,
beginning with to-morrow morning, Tuesday, March 8th."
"Said notice was read, and Councillor Dee moved to lay on the
table for one week. Motion lost; Dee and Elliott voting 'Aye;'
Calvert, Cannon, Graves, McManus, Shurtliff, and Spencer voting
'Nay.' The original motion was then put and carried; Calvert,
Cannon, Graves, McManus, Shurtliff, and Spencer voting 'Aye,' and
Dee and Elliott voting 'Nay.' "
Page 168 U. S. 227
"5. That thereupon, on March 9, 1892, in the Ogden Daily
Standard, the following notice of intention mentioned above was
published, to-wit:"
" Notice of intention of the City Council of Ogden City of
creating a district for paving and of paving and macadamizing the
streets therein, and to defray the expenses of such improvement by
local assessment."
" The City Council of Ogden City, situate in the County of
Weber, Territory of Utah, gives notice that it intends to make the
following improvements, to-wit, pave and macadamize the following
streets: Twenty-fifth Street, from the west line of Washington
Avenue to the west line of Wall Avenue. This district shall be
known as 'Paving District No. 2.' The boundaries of the district to
be affected and benefited are the lines running one hundred and
fifty feet back and parallel with the outer lines of each side of
the streets on each and every block, and for the full length
thereof therein. The estimated cost of such improvement is $40,000.
For the payment of the costs and expenses thereof, the city council
intends to levy local taxes upon the real estate lying and being
within said paving district, and to the extent of the benefits to
such property by reason of such improvement. The city council will,
on March 29, 1892 at 10 a.m., hear objections in writing and from
any and all persons interested in said local assessment. By order
of the City Council."
" T. P. Bryan, City Recorder"
"6. That on March 29, 1892 at 9:55 o'clock, D. H. Peery and
sixty-eight others, including all the plaintiffs in this action and
in the supplemental complaint, who were then the owners of real
property within the said Paving District No. 2, and with frontage
on Twenty-Fifth Street within the said paving district, filed a
protest with the said recorder of said Ogden City, protesting
against the levying of any local assessment against or upon their
property for the purpose of paving said street within said
district; that said persons so protesting owned and protested for
more than one-half of the whole
Page 168 U. S. 228
frontage on said Twenty-Fifth Street within said district,
to-wit, 2,414 feet; that, after said hour of 10 a.m. of said day,
certain persons who had protested to the amount of 302 1/4 feet
withdrew their protests, leaving at all times 2,111 3/4 feet
frontage on said Twenty-Fifth Street in said district still
protesting against the said local assessment; that the total number
of feet fronting on said Twenty-Fifth Street in said paving
district, as mentioned in said notice of intention above set forth,
was 3,960, of which 660 feet belonged at said time, and still
belong, to said Ogden City, and were then and are now used for
public purposes by the said city, and 125 feet of said frontage
were then, and are now, the property of the said Ogden City, and
was public school property, used and owned for public schools."
"7. That notwithstanding said protest of said abutting property
owned on said Twenty-Fifth Street in said Paving District No. 2,
and without giving any other or further notice except as
hereinbefore stated, the said City Council, on the 4th day of
April, 1892, passed the following resolution, to-wit:"
" Resolved, that the city proceed as speedily as possible to the
paving of Twenty-Fifth Street district with Utah sandstone blocks;
that the city engineer be instructed to prepare the necessary
specifications at once, and submit the same at the next meeting of
the council; that the competition of said work be restricted to
bona fide residents of Ogden, and that, so far as it is
possible, only Ogden labor be employed in the performance of the
work."
"8. That on May 2, 1893, said City Council of Ogden City passed
a resolution instructing the city recorder to advertise for bids
for the paving of Twenty-Fifth Street, in said district, which
notice was as follows:"
" To paving contractors: bids will be received by the City
Recorder of Ogden City until 12 o'clock m. May 23, 1892, for the
paving of Twenty-Fifth Street, in Ogden City, from Washington to
Wall Avenue, according to the specifications of the city engineer
of Ogden City, on file in the City Recorder's office. Competition
is restricted to
bona fide residents of Ogden City. The
city reserves the right to reject any and all bids. Specifications
will be furnished on application to the City Recorder. "
Page 168 U. S. 229
"9. That no specifications had been made by the city prior to
this time, but afterwards new specifications were made and filed,
providing for the paving, grading, and curbing of said Twenty-Fifth
Street, and were adopted by the City Council, which specifications
provided for the paving of said street with asphaltum and the sides
of the street with sandstone blocks and curbing the street, and the
contract which was awarded for the doing of said work provided that
the contractor should keep the said street in repair for two years
after the work upon the same was finished."
"10. That the plaintiffs in this action were at the date of the
filing of the complaint herein, to-wit, May 21, 1892, the owners of
the real property mentioned in the complaint; but upon the trial of
this action it appeared that John Broom and William Chapman were
deceased. Samuel Chapman, administrator of the estate of William
Chapman, and Hester Broom, administratrix of the estate of John
Broom, were substituted as plaintiffs, and said other parties were
still the owners of the property mentioned as belonging to them in
the complaint in this action."
"11. That said plaintiffs had, upon filing their complaint,
obtained a temporary injunction against the said defendants, but
afterwards a demurrer to said complaint was sustained by the said
court, and said complaint ordered dismissed, which ruling was
afterwards by the supreme court of the Territory of Utah reversed,
and the said cause was ordered remanded, with directions to the
defendant to answer said complaint."
"12. That the said council, in spite of the protest hereinbefore
mentioned, proceeded, and at the time of the filing of the
complaint in this action had, upon its passage, the ordinance
attached as Exhibit B to the complaint in this action, and
afterwards, on the 22d day of March, 1893, passed the ordinance
which is hereto attached, and marked 'Exhibit A,' and made a part
of these findings."
"13. That on the 9th day of April, 1894, the plaintiffs filed a
supplemental complaint in this action, and asked that Mathias Biel,
Joseph Clark, George W. Lashus, Lamoni Grix, Carl Soreason, J. E.
Horrocks and Ann Horrocks, J. S. Lewis,
Page 168 U. S. 230
Lindsey R. Rogers, Patrick Healey, Joseph Morely, Zilpha J.
Stephens, W. C. Warren, Almira C. Baker, D. H. Stephens, Mary A.
Stephens, Elizabeth Stephens, and the Ogden Union Depot &
Railway Company, a corporation, be made parties to this action,
which supplemental complaint was ordered by the court to be filed;
that at the time of the filing of the supplemental complaint, the
said parties (except the Ogden Depot & Railway Company, a
corporation) were, and still are, the owners of real estate
fronting on said Twenty-Fifth Street (and said plaintiff last named
was the owner of real estate assessed with said special tax, but
not included in said paving district), included in said paving
district, and upon the trial of this action D. H. Peery, Jr., and
the Realty Company of Kittery, Maine, a corporation, and J. Pingree
and Zilpha J. Stephens, Carrie Lewis, and George W. Murphy were
added as parties plaintiff, and were at the date, and still are,
the owners of real estate in said district fronting on said
Twenty-Fifth Street, the pleadings having been allowed to be
amended by the court in accordance with such facts."
"14. That said Ogden City, in pursuance of said ordinance of
March 22, 1893, was about to expose the real estate described in
the original and supplemental complaints to sale, to satisfy the
illegal assessment imposed by said ordinance, and that the parties
plaintiff in this action, after their said property had been
advertised for sale, and was about to be sold, to satisfy the said
illegal assessment then due, paid under protest to said Ogden City,
in order to prevent the sale of their property, the following
amounts, to-wit: J. C. Armstrong, $95.04; Mathias Biel, $63; Joseph
Clark, $48; Samuel Chapman, for the William Chapman estate, $49.20;
Joseph Clark, for Clark, Emmet, and Thompson, $30; William Driver,
$60; H. I. Griffin, $23.76; Lamoni Grix, $24.90; Ann Horrocks and
James E. Horrocks, $124.80; Geo. W. Lashus, $60; H. D. and J. S.
Lewis, $82.00; Carrie Lewis, $30; Joseph Morely, $36; Patrick
Healey, for Patterson and Healey, $30; Joseph Clark, for Patterson
and Clark, $60; L.R. Rogers, $74.04; J. H. Spargo, $48; D. M.
Stephens, $14.70; Carl S. Soreason, $20.40; W. C. Warren, $48;
Page 168 U. S. 231
Geo. M. Kerr, guardian of the Nichols heirs, $160.08; D. H.
Peery, Jr., $24; Realty Company, of Kittery, Maine, $748.80; Job
Pingree, $35.40; Ogden Union Depot and Railway Company, a
corporation, $118.80; Geo. W. Murphey, $154.20."
"15. That said plaintiffs are without any speedy and adequate
remedy at law for the recovery of said amounts without a great
multiplicity of the suits, and said assessment constitutes a cloud
upon the title of the various plaintiffs to their several parcels
of realty, and that said city asserts that it will annually, for
nine years hereafter, levy assessments upon said real estate for
the payment of said paving, and collect the same from the said
parties plaintiff, and has already caused to be sold the property
of certain of the plaintiffs under and by virtue of said
assessment."
"16. That the number of feet frontage in said paving district
was 3,300, as the same is described in the ordinance (Ex. A); that
the difference between the district described in the ordinance and
the district described in the notice of intention consisted of 660
feet of the public property of the said Ogden City, and the lots
affected by the said assessment and described in said ordinance
varied in depth, some being 75 feet deep, and others 150 feet deep,
and that the property owned by the various parties plaintiff in
this action varied greatly in depth; that no ascertainment of
actual benefits to the property assessed was ever made in order to
determine the amount of assessment, or to determine whether the
amount assessed exceeded the actual benefits to the property by
reason of the improvement, but the cost of the improvement was
assessed upon the property abutting and fronting upon Twenty-Fifth
Street within the said paving district at an arbitrary rate of $12
per front foot, without any finding or attempt to find the amount
of actual benefits to the property; that the said improvement was
made without any general plan and form of public improvement having
been adopted by the said Ogden City, and the actual benefits to the
property assessed for said improvement were not equal and uniform,
nor was said assessment equal and uniform. "
Page 168 U. S. 232
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the court.
The first question to be determined is whether the amount in
controversy is sufficient to give us jurisdiction of the
appeal.
Although no motion was made to dismiss the appeal, it was
suggested at the argument that, as it was not competent to make up
the sum necessary to give this Court jurisdiction by uniting the
several sums for which each taxpayer was liable, this was such a
case, and that therefore we should dismiss the appeal.
Undoubtedly it is the well settled rule of this Court that, in a
suit in equity brought in the circuit court by two or more persons
on several and distinct demands, the defendant can appeal to this
Court as to those plaintiffs only to each of whom more than five
thousand dollars is decreed.
Russell v. Stansell,
105 U. S. 303, was
a case in its facts much like the present one. There, land within a
particular district was assessed for taxation, each owner being
liable only for the amount wherewith he was separately charged. A
bill of complaint was filed by a number of them praying for an
injunction against the collection of the assessment, and from a
decree dismissing the bill an appeal was taken to this Court. It
was held that, while the complainants were permitted, for
convenience and to save expense, to unite in a petition setting
forth the grievances of which complaint was made, the object was to
relieve each separate owner from the amount for which he personally
or his property was found to be accountable, and that such distinct
and separate interests could not be united for the purpose of
making up the amount necessary to give this Court jurisdiction on
appeal.
The same conclusion was reached in
Gibson v. Shufeldt,
122 U. S. 27, where
the previous cases were fully discussed.
Page 168 U. S. 233
An examination of this record discloses that none of the
complainants save one were assessed with an amount sufficient to
have enabled them to bring the case here on appeal, and
accordingly, under the doctrine of the cases cited, this appeal
must be dismissed as to such parties.
But it appears that the Realty Company of Kittery, a corporation
of the State of Maine, a party complainant in the supplemental
bill, had been assessed, under the ordinance complained of, for the
sum of $748.80, as an installment for one year, and had been
compelled to pay the same, and that the city was threatening to
continue said proceedings, and to sell the real estate of said
company annually for nine years as each installment for a like sum
became due. The liability of that company then, under the ordinance
and assessment complained of, amounted to the sum of $7,488, and as
that company could, had the decree of the court below been adverse
to it, have brought the case here on appeal, so, upon the
authorities above referred to, it is competent for the defendant
city to do the same.
Upon the merits, the first and most important question to
consider is whether the City Council had jurisdiction to assess and
collect the paving tax.
The proceedings were initiated and the tax sought to be levied
and collected under the provisions of chapter 41 of the Session
Laws of 1890 of the late Territory of Utah. The thirteenth section
thereof reads as follows:
"In all cases before the levy of any taxes for any improvements
provided for in this act the city council shall give notice of
intention to levy said taxes, naming the purposes for which the
taxes are to be levied, which notice shall be published at least
twenty days in a newspaper published within said city. Such notice
shall describe the improvements so proposed, the boundaries of the
district to be affected or benefited by such improvements, the
estimated cost of such improvements, and designate the time set for
such hearing. If at or before the time so fixed, written objections
to such improvements signed by the owners of one-half of the front
feet abutting upon that portion of the street, avenue or alley
Page 168 U. S. 234
to be so improved be not filed with the Recorder, the Council
shall be deemed to have acquired jurisdiction to order the making
of such improvements."
The bill alleged, the answer admitted, and the trial court
found, that the notice of intention to pave in District No. 2, and
to defray the expenses thereof by levying a local tax on abutting
property owners, was published on March 9, 1892, and in which it
was stated that the City Council would on March 29, 1892 at 10
o'clock a.m., hear objections in writing from any and all persons
interested in said local assessment.
The sixth finding of the trial court was as follows:
"That on March 29, 1892, at 9:55 o'clock, D. H. Peery and
sixty-eight others, including all the plaintiffs in this action and
in the supplemental complaint, who were then owners of real
property within the said Paving District No. 2, and with a frontage
on Twenty-Fifth Street within the said paving district, filed a
protest with the said Recorder of said Ogden City protesting
against the levying of any local assessment against or upon their
property for the purpose of paving said street within said
district; that said persons so protesting owned and protested for
more than one-half of the whole frontage on said Twenty-Fifth
Street within said district, to-wit, 2,414 feet; that, after said
hour of 10 a.m. of said day, certain persons who had protested to
the amount of 302 1/2 feet withdrew their protests, leaving at all
times 2,111 3/4 feet frontage on said Twenty-Fifth Street in said
district still protesting against said local assessment; that the
total number of feet fronting on said Twenty-Fifth Street in said
paving district, as mentioned in said notice of intention above set
forth, was 3,960 feet, of which 660 feet belonged at said time, and
still belong, to said Ogden City, and were then, and are now, used
for public purposes by said city, and 125 feet of said frontage
were then, and are now, the property of the said Ogden City, and
was public school property, used and owned for public schools."
It is contended on behalf of the appellant that the City
Council, on April 4, 1892, determined that less than half of the
whole frontage had protested, and that, as the City Council was
acting principally in a proceeding duly inaugurated, such
Page 168 U. S. 235
action cannot be reviewed in an equitable action to restrain the
collection of the tax, but should be reviewed, if at all, by
certiorari, in which action the whole record would be removed to
the district court.
So far as this proposition involves questions of facts as to the
proportion of frontage covered by the protests, we, of course,
accept finding on that subject made by the trial court, and
approved and adopted by the supreme court of the territory.
Stringfellow v. Cain, 99 U. S. 610;
Haws v. Victoria Copper Mining Co., 160 U.
S. 303.
But the argument seems to be that, when once that question of
fact was determined by the City Council, proceeding under the
statute, their determination cannot afterwards be challenged in a
collateral proceeding; that, while it would not be conclusive in an
action by certiorari to set aside the assessment, it is conclusive
as against a proceeding by injunction, to prevent the collection of
the tax. It is said that the jurisdiction of the City Council
attached when, by resolution or ordinance and publication, it gave
notice of its intention to make the improvement in question.
We agree with the courts below in thinking that no jurisdiction
vested in the City Council to make an assessment or to levy a tax
for such an improvement, until and unless the assent of the
requisite proportion of the owners of the property to be affected
had been obtained, and that the action of the City Council in
finding the fact of such assent was not conclusive as against those
who duly protested. The fact of consent by the requisite number, in
this case, to be manifested by failure to object, is
jurisdictional, and in the nature of a condition precedent to the
exercise of the power.
"Where the power to pave or improve depends upon the assent or
petition of a given number or proportion of the proprietors to be
affected, this fact is jurisdictional, and the finding of the city
authorities or council that the requisite number had assented or
petitioned is not, in the absence of legislative provision to that
effect, conclusive. The want of such assent makes the whole
proceeding void."
(Dillon's Municipal Corporations, vol. 2, 4th edition, where
numerous cases
Page 168 U. S. 236
from the different states are cited in support of that
proposition.)
In
Zeigler v. Hopkins, 117 U.
S. 683, a similar question was thus stated and
decided:
"There is in reality but a single question presented for our
consideration in this case, and that is whether, in an action of
ejectment brought to recover the possession of lands sold for the
nonpayment of taxes levied to defray the expenses of opening
Montgomery Avenue generally, and not in obedience to an order of a
court of competent jurisdiction to meet some particular liability
which had been judicially established, the landowner is estopped
from showing, by way of defense, that the petition for the opening
presented to the mayor was not signed by the owners of the
requisite amount of frontage, and this depends on whether the owner
is concluded, (1) by the acceptance of the petition by the mayor
and his certificate as to its sufficiency and the action of the
board of public works thereunder, or (2) by the judgment of the
county court confirming the report of the board of public
works."
"This precise question was most elaborately considered by the
Supreme Court of California in
Mulligan v. Smith, 59 Cal.
206, and decided in the negative, after full argument. With this
conclusion we are entirely satisfied. It is supported by both
reason and authority."
It is next contended on behalf of the appellant that, if the
City Council wrongfully took jurisdiction, in face of the facts
shown in or upon the face of its own proceedings, then the tax was
absolutely void on its face, and the plaintiffs must seek their
remedy at law, and further, if the City Council wrongfully and
falsely made its record to show facts sufficient to give it
jurisdiction, when such facts never existed, then, in order to get
into equity plaintiffs must plead all such facts, and that even in
such a case certiorari is, under the laws of Utah, a plain and
perfect remedy.
It is doubtless true that the collection of a tax will not be
restrained on the ground that it is irregular or erroneous. Errors
in the assessment do not render the tax void, and usually there are
legal remedies for all such mere irregularities,
Page 168 U. S. 237
and errors as do not go to the foundation of the tax, and
parties complaining must be confined to these. As was held by this
Court in
Dows v.
Chicago, 11 Wall. 108:
"A suit in equity will not lie to restrain the collection of a
tax on the sole ground that it is illegal. There must exist, in
addition, special circumstances bringing the case under some
recognized head of equity jurisdiction, such as 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 the complainant."
But the present case would seem plainly to be one of equitable
jurisdiction within the doctrine of that case. What is complained
of is no mere irregularity or error in the assessment. As we have
seen, there was an entire want of jurisdiction in the Common
Council to proceed for want of the assent of the requisite
proportion of property owners, and the assessment and tax were
therefore void. That there was no plain and adequate remedy by
certiorari would seem to be evident. Upon that writ nothing could
have been shown by evidence of facts outside of the record. It is
true that, in some of the states, provision is made by statute to
bring such evidence in, but such is not shown to have been the case
here. It is an admitted fact upon the face of the pleadings that
the Common Council actually found that the necessary jurisdictional
fact existed, and that such a finding was made a matter of record.
The plaintiffs alleged in their bill, and the defendants in their
answer denied, that the finding of the jurisdictional fact by the
Common Council was not a true finding. Such an issue required
evidence
dehors the record of the proceedings before the
council in order to impeach their finding. The record of this case
discloses that a large amount of oral evidence was introduced by
the complainants, and admitted without objection by the defendants,
to show ownership by the protesting parties and to show that the
Common Council were mistaken in finding that the requisite number
had not protested.
Not only, however, was there a want of an adequate remedy in
proceeding by a writ of certiorari, but we think equitable
Page 168 U. S. 238
jurisdiction was properly invoked to prevent a multiplicity of
suits, and also to relieve the plaintiffs from a cloud upon their
title.
The finding on this fact of the case was as follows:
"The said plaintiffs are without any speedy and adequate remedy
at law for the recovery of said amounts without a great
multiplicity of suits, and said assessment constitutes a cloud upon
the title of the various plaintiffs to their several parcels of
realty, and that said city asserts that it will annually for nine
years hereafter lay assessments upon said real estate for the
payment of said paving, and collect the same from the said parties
plaintiff, and has already caused to be sold the property of
certain of the plaintiffs under and by virtue of said
assessment."
If a tax is a lien upon lands, it may then constitute a cloud
upon the title, and one branch of equity jurisdiction is the
removal of apparent clouds upon the title, which may diminish the
market value of the land, and possibly threaten a loss of it to the
owner. It is doubtless true that it has been held by this and other
courts that if the alleged tax has no semblance of legality, and
if, upon the face of the proceedings, it is wholly unwarranted by
law, or for any reason totally void, as disclosed by a mere
inspection of the record, such a tax would not constitute a cloud,
and that the jurisdiction which is exercised by courts of equity to
relieve parties by removing clouds upon their titles would not
attach.
But when the illegality or fatal defect does not appear on the
face of the record, but must be shown by evidence
aliunde,
so that the record would make out a
prima facie right in
one who should become a purchaser, and the evidence to rebut this
case may possibly be lost or become unavailable from death of
witnesses, or when the deed given on a sale of the lands for the
tax would be presumptive evidence of a good title in the purchaser,
so that the purchaser might rely upon the deed for a recovery of
the lands until the irregularities were shown, the courts of equity
regard the case as coming within their jurisdiction, and have
extended relief on the ground that a cloud on the title existed or
was imminent.
Page 168 U. S. 239
Dows v.
Chicago, 11 Wall. 108;
Hannewinkle v.
Georgetown, 15 Wall. 147.
Undoubtedly, for merely irregular assessments, where the
authorities have jurisdiction to act, the statutory remedy is also
the exclusive remedy. But when the statute, as in this case, leaves
open to judicial inquiry all questions of a jurisdictional
character, it is well settled that a determination of such
questions by an administrative board does not preclude parties
aggrieved from resorting to judicial remedies.
Thus, in
Emery v. Bradford, 29 Cal. 75, the Supreme
Court of California, while holding that the remedy of an owner of a
lot in San Francisco assessed for work on a street in front of the
same, if dissatisfied with the decision of the superintendent of
public streets, is an appeal from such decision to the board of
public supervisors, and that, if the proceedings are such that the
proper officers have jurisdiction to act, their determinations are
valid, and can only be reviewed in the mode provided by the
statute, said:
"That where there are acts to be performed of a jurisdictional
character essential to the validity of the assessment, it is not to
be supposed that the conclusiveness of the decision of the board of
supervisors is to extend to that class of cases."
So, in
Wright v. Boston, 9 Cush. 233, the Supreme
Judicial Court of Massachusetts, in holding that objections to a
tax for some defect or irregularity in making the assessment must
be taken advantage of by appeal, stated the proposition thus:
"For any defect or irregularity in the course of proceeding in
making the assessment -- any ground of objection -- which does not
go to show the whole proceeding a nullity, he must take his appeal,
if he has one."
In
Union Pacific Railway v. Cheyenne, 113 U.
S. 516,
113 U. S. 525,
this Court, through Mr. Justice Bradley, said:
"But it is contended that the complainant should have sought a
remedy at law, and not in equity. It cannot be denied that bills in
equity to restrain the collection of taxes illegally imposed have
frequently been sustained. But it is well settled that there ought
to be some equitable ground for relief besides the mere illegality
of the tax, for it must be
Page 168 U. S. 240
presumed that the law furnishes a remedy for illegal taxation.
It often happens, however, that the case is such that the person
illegally taxed would suffer irremedial damage, or be subjected to
vexatious litigation, if he were compelled to resort to his legal
remedy alone. For example, if the legal remedy consisted only of an
action to recover back the money after it had been collected by
distress and sale of the taxpayer's lands, the loss of his freehold
by means of a tax sale would be a mischief hard to be remedied.
Even the cloud cast upon his title by a tax under which a sale
could be made would be a grievance which would entitle him to go
into a court of equity for relief."
Numerous cases to the same effect may be found cited in Cooley
on Taxation 543.
Again, it is contended on behalf of the appellant that the
defendants cannot recover the taxes paid by them under protest,
because Session Laws of Utah 1890, p. 58, sec. 1, provides that
"any party feeling aggrieved by any such special tax or
assessment or proceeding may pay said special tax assessed or
levied upon his property, or such installments thereof as may be
due at any time before the same shall be delinquent, under protest,
and with notice in writing to the city collector that he intends to
sue to recover the same, which notice shall particularly state the
alleged grievances and grounds thereof, whereupon such party shall
have the right to bring a civil action within sixty days
thereafter, and not later, to recover so much of the special tax as
he shall show to be illegal, inequitable and unjust, the cost to
follow the judgment, to be apportioned by the court as may seem
proper, which remedy shall be exclusive."
As respects this contention, we agree with the supreme court of
the territory that this statute applies to cases where there are
only errors, irregularities, overvaluations, or other defects which
are not jurisdictional, but that, where the council, not having the
jurisdiction to levy the tax, could not proceed under the statute,
the taxpayers need not proceed under the statute to recover the
money paid. Where the tax was wholly void and illegal, as in this
case, the
Page 168 U. S. 241
statute and its remedies for errors and irregularities have no
application.
Our conclusion is that the decree of the Supreme Court of
the Territory of Utah, so far as respects the Realty Company of
Kittery, is affirmed, and that as to the other appellees the appeal
is dismissed.
