APPEAL FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
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 Fed. Rep. 540; 222 Fed. Rep. 651, both courts being of opinion that relief by injunction was not admissible because there was a plain, adequate and complete remedy at law. While that
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 precluded.
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, 467; Meeker v. Lehigh Valley R.R. Co., 234 U.S. 749), 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, 101; White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 8.
For many years the revenue laws of Colorado have contained a section*fn1 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 portion 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. Stats., § 6463; Laws 1902, c. 3, § 202; Rev. Stats. 1908, § 5750; Price v. Kramer, 4 Colorado, 546, 555; Woodward v. Ellsworth, 4 Colorado, 580, 581; Hallett v. Arapahoe County, 40 Colorado, 308, 318; Bent County v. Atchison, Topeka & Santa Fe Ry. Co.,
Colorado, 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, and cases there cited; Pittsburg, etc., Ry. Co. v. Board of Public Works, 172 U.S. 32; Arkansas Building & Loan Assn. v. Madden, 175 U.S. 269; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 35; Johnson v. Wells, Fargo & Co., 239 U.S. 234, 243; Greene v. Louisville & Interurban R.R. Co., 244 U.S. 499, 519.
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, 661; Arkansas Building & Loan Assn. v. Madden, supra, 273.
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. 39-40. 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 ...