Denver & Rio Grande Railroad v. Board of County Commissioners

193 P. 555, 69 Colo. 212

• Court: Supreme Court of Colorado
• Decided: October 4, 1920
• Docket: No. 9677
• Status: Published

Opinion

Mr. Justice Teller

delivered the opinion of the court.

The plaintiff in error brought suit against the defendants in error to enjoin the collection of a tax, upon what is alleged to be an excessive levy. The complaint sets up that the levy of the tax constituted a mistake amounting to fraud, which would result in the fraudulent taking of plaintiff’s property; that the collection of the tax would deprive plaintiff of its property without due process of law; that the plaintiff would be irreparably injured, and that it had no adequate remedy at law. Defendants filed an answer containing a general demurrer, and alleging that the plaintiff had a full, adequate and complete remedy in the ordinary course of law. The court adopted the view of defendants in the matter above stated, and' dismissed the action. The cause is now here on error. This court has several times held that the mere fact of a levy of an illegal or void tax does not entitle a taxpayer to enjoin its collection; that a court of equity will not entertain jurisdiction for that purpose unless there exists also some recognized equitable ground for the granting of relief: The cases are collected in Nile District v. English, 60 Colo. 406, 410, 193 Pac. 555. It has been several times pointed out in these cases that Section 5750 R. S., 1908, affords an adequate remedy in case of an illegal or erroneous levy. The other allegations, intended to show grounds for the exercise of jurisdiction, are mere conclusions of the pleader, and wholly insufficient for the purpose mentioned. This cause presents no features which render it an exception to the rule so often applied.

The trial court did not err in dismissing the cause and the judgment is accordingly affirmed.

Chief Justice Garrigues and Mr. Justice Burke concur.