ADAMS, Circuit Judge.
The Singer Sewing Machine Company, a foreign corporation, made a return of taxable personal property for the year 1905 to the assessor of the city and county of Denver disclosing a value of $3,800. The assessor increased that amount, adding $62,500 more in value of personal property. A tax list or warrant authorizing the collection of taxes from the company on the total amount of $66,300 was afterwards made out and delivered to the city and county treasurer whose duty it became to collect the taxes assessed thereon. Afterwards the company tendered to the treasurer $136.30, the amount of taxes with accrued interest due on $3,800 [630]*630worth of property as returned by it for taxation, and refused to pay the taxes assessed against the increase of $62,500 on the ground that they were unlawfully imposed and illegal. This was a suit to enjoin the treasurer from proceeding to collect this additional tax, which, it was alleged, he threatened to do.
The real controversy was whether certain moneys, notes, and contracts, which in the regular course of business of the company were temporarily detained at its local office in Denver on their way to their ultimate destination, the home office of the complainant, were taxable in Denver. It was on an average value of these that the assessor based the increase in valuation made by him.
Complainant stated in its bill as reasons for invoking the aid of a court of equity that no notice of an increase in its taxable property was given to the company; that it was thereby deprived of an opportunity to make application to the assessor for redress or appeal to the district or county court for a review of the assessor’s action as provided by sections 5639 and 5640 of the Revised Statutes of Colorado; and that it had no adequate remedy at law against the collection of the tax assessed on the increase.
There are no averments in the bill showing any fraud, accident, or mistake which conduced to the overvaluation, any cloud upon title to real estate, or danger of multiplicity of suits, or any averments planting complainant’s right to relief upon any other head of equity jurisdiction excepting inadequacy of legal remedy.
We are met at the threshold with the objection that the present bill cannot be sustained because it presents no cause of equitable cognizance, but rather one for which the law courts afford an adequate remedy.
Complainant endeavors to forestall a consideration of this objection on the ground that defendant answered and went to trial on the merits. For that reason it is urged it is now too late to object to the jurisdiction in equity over the subject-matter. The following authorities are cited and relied upon by the complainant’s counsel: 1 Daniell’s Chancery Pleading & Practice (5th Ed.) pp. 555, 600, et seq.; Wylie v. Coxe, 15 How. 415, 420, 14 L. Ed. 753; New Orleans v. Morris, 105 U. S. 600, 26 L. Ed. 1184; Reynes v. Dumont, 130 U. S. 354, 395, 9 Sup. Ct. 486, 32 L. Ed. 934; Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. Ed. 1021.
An examination of these and other cases discloses that the rule invoked prevails only when the objection is made for the first time in the appellate court. In the present case jurisdiction in equity was challenged in limine by a demurrer on the specific ground that the bill contained no matter of equity, and upon that being overruled the same objection was'again taken by answer. Until the final decree was passed no appeal lay, and the question of jurisdiction over the subject-matter could not before then have been reviewed. Gates v. Bucki, 4 C. C. A. 116, 53 Fed. 961, 964. In such cases an appeal after final decree presents for review the entire record, and if for any reason the decree below was right it will be affirmed.
[631]*631The objection to our consideration of the jurisdictional question is untenable.
Does the bill disclose a right to the injunctive relief sought? In other words, does it disclose that complainant did not have an adequate remedy at law? These are questions which if answered in favor of defendant render consideration of the merits of the case unnecessary.
The law is well settled that, unless a complainant can invoke some recognized head of equity jurisdiction, the mere illegality or irregularity of a tax complained of gives no right to injunctive relief against its collection. Hannewinkle v. Georgetown, 15 Wall. 547, 21 L. Ed. 231; State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663; Union Pacific Railway Co. v. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098; Milwaukee v. Koeffler, 116 U. S. 219, 6 Sup. Ct. 372, 29 L. Ed. 612; Pittsburgh, etc., Ry. Co. v. Board of Pub. Works, 172 U. S. 33, 19 Sup. Ct. 90, 43 L. Ed. 354; Indiana Mfg. Co. v. Koehne, 188 U. S. 681, 23 Sup. Ct. 452, 47 L. Ed. 651; Taylor v. Louisville & N. R. Co., 31 C. C. A. 537, 88 Fed. 350, 357; Hallett v. Arapahoe County, 40 Colo. 308, 90 Pac. 678.
In the Hannewinkle Case, supra, which was a bill to enjoin the collection of a tax claimed to be illegal, the Supreme Court, speaking by Mr. Justice Hunt, said:
“It has been the settled law of the country for a great many years that an injunction bill to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud, that it creates a cloud upon the title, that there is apprehension of multiplicity of suits, or some cause presenting a case of equity jurisdiction.”
In State Railroad Tax Cases, supra, Mr. Justice Miller, speaking for the court, after quoting from the Hannewinkle Case, said:
“AVe do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes; but we may say that, in addition to illegality, hardship, or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction.”
In Indiana Mfg. Co. v. Koehne, supra, Mr. Justice Peckham, speaking for the court, made these observations:
“It has long been the settled doctrine of the federal courts that the mere illegality of a tax, or the mere fact that a law upon which the tax is founded is unconstitutional, does not entitle a party to relief by injunction against proceedings under the law; but it must appear that the party has no adequate remedy by the ordinary process of the law, or that the case falls under some other recognized head of equity jurisdiction, such as multiplicity of suits, irreparable injury, etc.”
From the analysis already made of the bill it appears that it is not grounded upon an equitable foundation like fraud, mistake, avoidance of multiplicity of suits, removing cloud from title to real estate, or any like matter. It rests practically upon the propositions that the tax was illegal and that complainant had no adequate remedy at law to prevent its collection.
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ADAMS, Circuit Judge.
The Singer Sewing Machine Company, a foreign corporation, made a return of taxable personal property for the year 1905 to the assessor of the city and county of Denver disclosing a value of $3,800. The assessor increased that amount, adding $62,500 more in value of personal property. A tax list or warrant authorizing the collection of taxes from the company on the total amount of $66,300 was afterwards made out and delivered to the city and county treasurer whose duty it became to collect the taxes assessed thereon. Afterwards the company tendered to the treasurer $136.30, the amount of taxes with accrued interest due on $3,800 [630]*630worth of property as returned by it for taxation, and refused to pay the taxes assessed against the increase of $62,500 on the ground that they were unlawfully imposed and illegal. This was a suit to enjoin the treasurer from proceeding to collect this additional tax, which, it was alleged, he threatened to do.
The real controversy was whether certain moneys, notes, and contracts, which in the regular course of business of the company were temporarily detained at its local office in Denver on their way to their ultimate destination, the home office of the complainant, were taxable in Denver. It was on an average value of these that the assessor based the increase in valuation made by him.
Complainant stated in its bill as reasons for invoking the aid of a court of equity that no notice of an increase in its taxable property was given to the company; that it was thereby deprived of an opportunity to make application to the assessor for redress or appeal to the district or county court for a review of the assessor’s action as provided by sections 5639 and 5640 of the Revised Statutes of Colorado; and that it had no adequate remedy at law against the collection of the tax assessed on the increase.
There are no averments in the bill showing any fraud, accident, or mistake which conduced to the overvaluation, any cloud upon title to real estate, or danger of multiplicity of suits, or any averments planting complainant’s right to relief upon any other head of equity jurisdiction excepting inadequacy of legal remedy.
We are met at the threshold with the objection that the present bill cannot be sustained because it presents no cause of equitable cognizance, but rather one for which the law courts afford an adequate remedy.
Complainant endeavors to forestall a consideration of this objection on the ground that defendant answered and went to trial on the merits. For that reason it is urged it is now too late to object to the jurisdiction in equity over the subject-matter. The following authorities are cited and relied upon by the complainant’s counsel: 1 Daniell’s Chancery Pleading & Practice (5th Ed.) pp. 555, 600, et seq.; Wylie v. Coxe, 15 How. 415, 420, 14 L. Ed. 753; New Orleans v. Morris, 105 U. S. 600, 26 L. Ed. 1184; Reynes v. Dumont, 130 U. S. 354, 395, 9 Sup. Ct. 486, 32 L. Ed. 934; Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. Ed. 1021.
An examination of these and other cases discloses that the rule invoked prevails only when the objection is made for the first time in the appellate court. In the present case jurisdiction in equity was challenged in limine by a demurrer on the specific ground that the bill contained no matter of equity, and upon that being overruled the same objection was'again taken by answer. Until the final decree was passed no appeal lay, and the question of jurisdiction over the subject-matter could not before then have been reviewed. Gates v. Bucki, 4 C. C. A. 116, 53 Fed. 961, 964. In such cases an appeal after final decree presents for review the entire record, and if for any reason the decree below was right it will be affirmed.
[631]*631The objection to our consideration of the jurisdictional question is untenable.
Does the bill disclose a right to the injunctive relief sought? In other words, does it disclose that complainant did not have an adequate remedy at law? These are questions which if answered in favor of defendant render consideration of the merits of the case unnecessary.
The law is well settled that, unless a complainant can invoke some recognized head of equity jurisdiction, the mere illegality or irregularity of a tax complained of gives no right to injunctive relief against its collection. Hannewinkle v. Georgetown, 15 Wall. 547, 21 L. Ed. 231; State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663; Union Pacific Railway Co. v. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098; Milwaukee v. Koeffler, 116 U. S. 219, 6 Sup. Ct. 372, 29 L. Ed. 612; Pittsburgh, etc., Ry. Co. v. Board of Pub. Works, 172 U. S. 33, 19 Sup. Ct. 90, 43 L. Ed. 354; Indiana Mfg. Co. v. Koehne, 188 U. S. 681, 23 Sup. Ct. 452, 47 L. Ed. 651; Taylor v. Louisville & N. R. Co., 31 C. C. A. 537, 88 Fed. 350, 357; Hallett v. Arapahoe County, 40 Colo. 308, 90 Pac. 678.
In the Hannewinkle Case, supra, which was a bill to enjoin the collection of a tax claimed to be illegal, the Supreme Court, speaking by Mr. Justice Hunt, said:
“It has been the settled law of the country for a great many years that an injunction bill to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud, that it creates a cloud upon the title, that there is apprehension of multiplicity of suits, or some cause presenting a case of equity jurisdiction.”
In State Railroad Tax Cases, supra, Mr. Justice Miller, speaking for the court, after quoting from the Hannewinkle Case, said:
“AVe do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes; but we may say that, in addition to illegality, hardship, or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction.”
In Indiana Mfg. Co. v. Koehne, supra, Mr. Justice Peckham, speaking for the court, made these observations:
“It has long been the settled doctrine of the federal courts that the mere illegality of a tax, or the mere fact that a law upon which the tax is founded is unconstitutional, does not entitle a party to relief by injunction against proceedings under the law; but it must appear that the party has no adequate remedy by the ordinary process of the law, or that the case falls under some other recognized head of equity jurisdiction, such as multiplicity of suits, irreparable injury, etc.”
From the analysis already made of the bill it appears that it is not grounded upon an equitable foundation like fraud, mistake, avoidance of multiplicity of suits, removing cloud from title to real estate, or any like matter. It rests practically upon the propositions that the tax was illegal and that complainant had no adequate remedy at law to prevent its collection. The claim to equitable relief is stated in the bill in the following words:
[632]*632"And the plaintiff further says that by reason of the neglect and omission of the county assessor to notify the plaintiff, as provided by the said revenue act, that he had changed the valuation of the plaintiff’s personal property as fixed by the plaintiff in its tax schedule from $3,800 to $66,300, and of the other matters and things hereinbefore alleged, the plaintiff is deprived of any remedy at law to redress the wrong imposed upon the plaintiff in this case; that by reason whereof the plaintiff has no speedy and adequate remedy at law, and the threatened proceeding of the defendant, if executed, would work an irreparable injury to the plaintiff, unless restrained by the order of this court, and the plaintiff is compelled to invoke the protection of a court of equity to prevent such threatened injury.”
It is said the assessment of complainant’s property by the assessor, at a valuation above that returned by it, was an adjudication of the' legality of the tax and unassailable .except by some direct proceeding like the present bill.
We may concede all that is claimed to follow from a failure to give the notice prescribed by sections 5639 and 5640, Rev. St. 1908; that the notice was a prerequisite to the exercise of jurisdiction to tax the increase made by the assessor. He and other officers acting with him in extending the tax on that increase and issuing the warrant for its collection acted as a special judicial tribunal, and if their judgment was within their jurisdiction it is not subject to collateral attack; but if without their jurisdiction it is subject to such attack. Stanley v. Board of Supervisors, 121 U. S. 535, 550, 7 Sup. Ct. 1234, 30 L. Ed. 1000; McLeod v. Receveur, 18 C. C. A. 188, 71 Fed. 455, 458. Like all judgments in personam whether of special tribunals or courts of general jurisdiction in which there is an absence of service of process or notice or appearance requisite to confer jurisdiction, the assessment in this case was simply void and may be attacked collaterally whenever any claim of right is asserted under it. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and cases cited.
This leaves the sole remaining inquiry whether the bill and proof -disclose that in other respects the complainant had no adequate remedy at law for the wrong and injury alleged to have been threatened by the defendant.
The statute of Colorado (section 5750, Rev. St. 1908; section 202, Revenue Act, Approved March 22, 1902, Sess. Laws Colo. 1902, p. 146) providing that the board of county commissioners shall refund to the taxpayer any erroneous or illegal taxes which he may have been compelled to pay has been held by this court (Atchison, T. & S. F. Ry. Co. v. Sullivan, 97 C. C. A. 1, 173 Fed. 456, 470) not to afford an adequate remedy to a taxpayer who has been required to pay an illegal tax, and we therefore omit further consideration of that statute' as a basis for legal relief.
Sections 5682 and 5768, Rev. St. 1908 (sections 135 and 220, Revenue Act, 1902, as amended by Act April 11, 1903, Sess. Laws Colo. 1903, p. 407), empowered the treasurer in certain circumstances to enforce collection of taxes upon personal property by distraint and sale of any personal property of the debtor.
But there is neither charge nor proof that complainant had any personal property of any kind in the city or county of Denver at the time this suit was brought, and there are no allegations or proof that com[633]*633plainant would be injured or embarrassed by any distraint or sale of its personal property, or that any such action was threatened by the defendant. The only threat proved at the hearing was contained in a letter of date October 1, 1906, three weeks before this suit was brought, written by the treasurar to complainant, as follows:
“Denver, Colo., Oct. 1, 1906. Singer Sewing Machine Co.: Your personal tax for the year 1905, amounting to $2284.05, is delinquent, and unless paid at once I will be obliged to enforce collection of same according to law. If you compel this course the expense will greatly exceed the amount now demanded. Your attention is directed to the charges and penalties prescribed by law, and printed on the back of this notice, to which you will be subject if it becomes necessary to enforce a collection of your unpaid personal taxes.”
Accordingly, we may eliminate any threatened distraint of personal property as a ground upori which injunctive relief is predicated. Even if we could not do so, we do not think the threat to seize personal property for the satisfaction of an illegal tax would by itself entitle the owner to an injunction in equity. It would amount to a trespass for which the injured party could have proper redress in an action at law.
The only other method of collecting the tax in question was by an ordinary suit by the treasurer against the delinquent taxpayer. This was a method provided by section 5677, Rev. St. (Sess. Laws 1902, p. 112), in case the treasurer could not find the property upon which the tax had been levied or any other property sufficient for the satisfaction of the tax, interest, and penalties. If such a suit had been threatened and instituted, complainant would have had an adequate remedy at law to make any defense based upon the illegality of the tax; and this could have been made either in the state court where the action might have been brought or in the federal court by the process of removal if desired by the defendant in the action. We have held that when one has a right to resort to the federal court for the redress of an injury the fact that he may have a remedy at law in a state court is not an adequate remedy within the meaning of the equitable rule under consideration. National Surety Co. v. State Bank, 56 C. C. A. 657, 120 Fed. 593, 602, and cases cited.
Giving the complainant the benefit of that rule, we are of opinion that, whatever action may have been contemplated in the so-called “threatening letter” of the treasurer, the complainant would have had a complete and adequate remedy at law so far as this record discloses for any injury it might have sustained if the threat had been actually put into execution.
Learned counsel for complainant urges that this court in Atchison, T. & S. F. Ry. Co. v. Sullivan, supra, made pronouncements which justify his present contention. We, however, do not think so. That was a case for injunctive relief against unjust, systematic, and intentional discrimination in the valuation of the property of the railway company for the purpose of subjecting it to an undue proportion of the public burden. We were there met with the objection to equitable relief now made by the defendants in this case. That was disposed of by the court, Sanborn, Circuit Judge, speaking for .it, in the following language:
[634]*634“Finally, counsel for the defendant invoke the conceded rule that some, recognized ground of equity jurisdiction, and the fact that the complainant has no adequate remedy at law, in addition to the fact that the tax is excessive and illegal, are essential to the maintenance of a suit in equity forinjunctive relief, and they insist that no such foundation for this suit has been laid by the proof. * * * Fraud and mistake are ancient heads of equity jurisdiction. The Board of Equalization made a plain mistake, demonstrable by the mere division of their assessment of the corporate plant of the company in the state by the number of miles of railroad they found the company controlled therein, when it certified to the county of Bent its over-assessment of the company’s property in that county. The systematic and intentional omission of watches, clocks, and jewelry, credits and fat stock by the county assessor from the assessment of the property within his jurisdiction, however innocent in actual intention, was either -an intentional fraud upon the complainant or such a gross mistake that it was a fraud in law.”
The conclusion cannot be avoided that in that case the rule already-laid down in this' case that' actions of this kind must be grounded upon some recognized head of equity jurisdiction in addition to the mere fact of illegality or erroneousness in the tax sought to be collected was fully recognized and acted upon. The learned judge said the rule here laid down was a “conceded one” and proceeded to demonstrate that the action in that case was founded upon one of the best recognized grounds of equity jurisdiction, namely, actual mistake or intentional fraud.
We have no, occasion or disposition to criticise the doctrine of that case; bu,t it has no application to the pleadings or facts of this case.
The burden rested on complainant to aver, and if necessary to prove, facts showing that it had no adequate remedy at law for the wrong threatened to be perpetrated against it.
After a careful consideration of the pleadings and proof, we are satisfied that it has failed in this respect.
The decree of the Circuit Court dismissing the bill must, therefore, be affirmed.