An appeal does not lie to this Court from an order of the
circuit court of appeals which merely affirms, on interlocutory
appeal, an order of the district court refusing a preliminary
injunction, even where the decisions below were rested on the
ground of adequate legal remedy, which might have been made the
basis for a final dismissal of the bill.
A certiorari may issue under Jud.Code, § 262, to review an
interlocutory judgment of the circuit court of appeals which,
because the case is of a kind ultimately appealable, is not subject
to certiorari under § 240.
Decision of an application for certiorari having been postponed
to the hearing of the appeal which was also taken, and the appeal
being found without jurisdiction, the certiorari in this case is
granted and the record on appeal is treated as the return to the
Equity has jurisdiction to enjoin the collection of illegally
discriminatory taxes where the existence of an adequate and
complete remedy at law is doubtful.
Where the legal remedy by paying the taxes and suing to recover
back necessitates separate actions against several school districts
and towns, it will not displace the equitable remedy by injunction
in one suit.
Section 5750, Colorado Rev.Stats., 1908, provided a plain,
adequate, and complete legal remedy in cases of illegal taxes by
requiring the Board of County Commissioners to refund them when
paid and by conferring impliedly on the taxpayer a right to recover
them though levied for state, school district, and town as well as
for county, purposes by one action against the Board; but, in view
of later provisions of Laws, 1913, c. 134, § 5, the effect of which
has not been determined by the state supreme court and which might
be construed as
Page 247 U. S. 283
prohibiting the Board from refunding without the approval of the
State Tax Commission and as withdrawing the right of action against
the Board where the Commission disapprove, held
existence of an adequate legal remedy is so uncertain and debatable
that jurisdiction in a suit for an injunction could not properly be
217 F. 540, 222 id.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a suit by the Union Pacific Railroad Company to enjoin
the collection of a portion of the taxes levied on its property in
Weld County, Colorado, in a particular year, the gravamen of the
complaint being that the company's property was assessed at
one-third of its value, while most of the other property was
assessed at one-fifth and some not at all, and that this operated
to place an undue burden of taxation on the company contrary to the
constitution and laws of the state and to the due process and equal
protection clauses of the Fourteenth Amendment. A portion of the
taxes was conceded to be valid, and was paid. The portion in
dispute amounts to $31,127.37. An application for a temporary
injunction, submitted on affidavits and other proofs, was denied by
the district court, and that interlocutory order was affirmed by
the circuit court of appeals, 217 F. 540; 222 F. 651, both courts
being of opinion that relief by injunction was not admissible
because there was a plain, adequate, and complete remedy at law.
Page 247 U. S. 284
view might have resulted in a final decree dismissing the bill,
such a decree was neither entered in the district court nor
directed by the circuit court of appeals. In other words, an
amendment of the bill and further proceedings were not
An appeal to this Court from the affirmance of the district
court's interlocutory order was allowed, but the appeal is without
statutory sanction, and must be dismissed. Anticipating that this
might be so, the company presented a petition for a writ of
certiorari under § 262 of the Judicial Code (see McClellan v.
Carland, 217 U. S. 268
United States v. Beatty, 232 U. S. 463
232 U. S. 467
Meeker v. Lehigh Valley R. Co., 234 U.
), consideration of which was postponed to the
hearing on the appeal. We now grant the petition and treat the
record on the appeal as the return to the writ. See Farrell v.
O'Brien, 199 U. S. 89
199 U. S. 101
White-Smith Music Co. v. Apollo Co., 209 U. S.
, 209 U. S. 8
For many years, the revenue laws of Colorado have contained a
imposing on the
board of county commissioners "in all cases" the duty of refunding
to the taxpayer "without abatement or discount" "any tax, interest
or costs, or any part thereof," which is found to have been
"erroneous or illegal," and by a necessary implication conferring
on him a correlative and substantive right to have the same so
refunded. Laws 1870, p. 123, § 106; 2 Mills Ann.Stat. § 3777; Laws
1902, c. 3, § 202; Rev.Stats. 1908, § 5750; Prico v.
4 Colo. 546, 555; Woodward v. Ellsworth,
Colo. 580, 581; Hallett v. Arapahoe County,
40 Colo. 308,
318; County Commissioners of Bent County v. Atchison, Topeka
& Santa Fe Ry. Co.,
Page 247 U. S. 285
52 Colo. 609, 612-614. If that section is still in force,
unqualified and unmodified, the conclusion below that, in this
case, there is a plain, adequate, and complete remedy at law, and
therefore that relief by injunction is not admissible, is fully
sustained by our decisions. Singer Sewing Machine Co. v.
Benedict, 229 U. S. 481
cases there cited; Pittsburg, etc., Ry. Co. v. Board of Public
Works, 172 U. S. 32
Arkansas Building and Loan Assn. v. Madden, 175 U.
; Raymond v. Chicago Union Traction Co.,
207 U. S. 20
207 U. S. 38
Johnson v. Wells Fargo & Co., 239 U.
, 239 U. S. 243
Greene v. Louisville & Interurban R. Co., 244 U.
, 244 U. S.
That the taxes were levied for state, school district, and town,
as well as for county, purposes is not material, for it is apparent
from the Colorado statutes and decisions that the section covers
broadly the whole of the tax that is found to have been erroneous
or illegal, regardless of the purpose for which it was levied and
placed on the county tax roll. And it also is immaterial that the
taxes were made a lien on the company's real property, for the lien
would be effectually removed by paying them and suing to recover
back the money. Allen v. Pullman's Palace Car Co.,
139 U. S. 658
139 U. S. 661
Arkansas Building and Loan Assn. v. Madden, supra,
175 U. S.
Whether the section named is still in force, unqualified and
unmodified, is the important question. If not in force, a single
action at law would not suffice, for then it would be necessary to
bring a separate action against each of several school districts
and towns for its part of the tax. See Raymond v. Chicago Union
Traction Co., supra,
pp. 207 U. S. 39
And if the section has been so qualified and modified that the
continued existence of the right originally conferred on the
taxpayer is involved in uncertainty, an essential element of the
requisite remedy at law is wanting; for, as this Court has
"It is a settled principle of equity jurisprudence that, if the
Page 247 U. S. 286
law be doubtful, a court of equity will not decline cognizance
of the suit. . . . Where equity can give relief, plaintiff ought
not to be compelled to speculate upon the chance of his obtaining
relief at law."
Davis v. Wakelee, 156 U. S. 680
156 U. S.
In 1911, Colorado established a state tax commission and
conferred on it extensive supervisory powers over the
administration of the revenue laws of the state, including the acts
of assessors and boards of county commissioners. Laws 1911, c. 216.
And in 1913, before the present suit was begun, the state adopted a
statute extending the powers of the commission and repealing "all
acts or parts of acts in conflict" therewith. Laws 1913, c. 134.
The fifth section of that act says:
"No abatement, rebate, or refund of taxes shall be allowed by
the county commissioners unless a hearing shall be had thereon and
a notice of such hearing and an opportunity to be present being
[be] first given to the assessor, and in case any abatement,
rebate, or refund of taxes shall be recommended by said county
commissioners, they shall certify to the Colorado Tax Commission
their findings, giving the amount of such abatement, rebate or
refund, and their reasons therefor, and such abatement, rebate, or
refund shall become effective upon the indorsement thereon of the
approval of the Colorado Tax Commission, and in case the said
Colorado Tax Commission shall disapprove the recommendation of the
county commissioners, they shall indorse their disapproval thereon
and return it to the county commissioners with a statement of their
reasons therefor, and no abatement, rebate, or refund of taxes
shall be allowed by the said board of county commissioners if the
application is disapproved by the said Colorado Tax
Counsel differ widely respecting the effect of this statute on
the earlier § (§ 5750, Rev.Stats. 1908) and on the substantive
right given by it to have an erroneous
Page 247 U. S. 287
or illegal tax refunded. On the one hand, it is said that
neither the earlier section nor the right thereby conferred is in
any wise affected, and that one paying an erroneous or illegal tax
still may call on the county board to refund it and, if the
application be refused, has a right of action to compel the board
to refund. On the other hand, it is said that the new statute
qualifies and modifies the earlier section by restricting the power
and duty of the county board to refund to instances in which the
state tax commission approves the application, and that the
correlative right of the taxpayer under the earlier section -- the
right impliedly arising out of the duty imposed on the county board
-- is qualified and modified accordingly; in other words, that the
new statute prohibits any refunding of taxes by the county board
save in instances having the approval of the state commission, and
that, in other instances, it operates to withdraw from the taxpayer
all right of action against the county board under the earlier
An examination of the new statute shows that the controversy
just outlined is not without some real basis, and that its solution
is not free from difficulty. The question is purely one of state
law, and, so far as we are advised, the supreme court of the state
has not passed on or considered it. A ruling by us on the question
would neither settle it for that court nor be binding in an action
to recover the tax if paid. In these circumstances, it cannot be
said that the company certainly or plainly has an adequate and
complete remedy at law. On the contrary, the existence of such a
remedy is debatable and uncertain. And this being so, the situation
is not one in which cognizance of the present suit properly can be
With the question of equitable jurisdiction out of the way, the
district court should dispose of the application for a temporary
injunction on the merits, and otherwise proceed with the suit in
regular course. The controverted questions of fact arising on that
application have not been
Page 247 U. S. 288
considered by us, and we intimate no opinion respecting them.
Such questions are rarely, if ever, regarded as properly subject to
examination here on writ of certiorari.
Appeal dismissed; certiorari granted, record on appeal to
stand as return to writ; decrees below reversed, and cause remanded
to the district court for further proceedings in conformity with
". . . and in all cases where any person shall pay any tax,
interest or costs, or any portion thereof, that shall thereafter be
found to be erroneous or illegal, whether the same be owing to
erroneous assessment, to improper or irregular levying of the tax,
or clerical or other errors or irregularities, the board of county
commissioners shall refund the same without abatement or discount
to the taxpayer."