ALBUQUERQUE BANK V. PEREA, 147 U. S. 87 (1893)

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U.S. Supreme Court

Albuquerque Bank v. Perea, 147 U.S. 87 (1893)

Albuquerque Bank v. Perea

No. 710

Submitted December 14, 1892

Decided January 3, 1893

147 U.S. 87


When a statute requires property to be assessed for taxation at its cash value, a bill to enjoin the collection of a tax, solely on the ground that the property of other persons is assessed below its cash value cannot be maintained by a person whose property is also assessed below that value.

In order to procure an injunction restraining the collection of a tax, it is necessary to pay, or offer to pay, such parts of the sum assessed as is not disputed.

On November 3, 1888, appellant, as plaintiff, filed its bill in the District Court of the Second Judicial District of the Territory of New Mexico to restrain the defendant, Sheriff and ex officio Collector of Bernalillo County, from the collection of the regular territorial, county, and city taxes assessed and levied upon its property for the year 1888. The ground upon which the injunction was sought was, generally speaking, inequality and discrimination in the assessment. The bill alleged chanrobles.com-red

Page 147 U. S. 88

that the plaintiff made a return of its property for taxation to the assessor, protesting at the time that its property should not be assessed at any greater rate than other property; that, disregarding the protest, the assessor assessed the property at its par and full value; that thereupon it appealed to the board of equalization, which reduced the assessment to eighty-five percent; "that all other property in the county and territory is not assessed at near so high a valuation upon its actual value;" and that the average valuation of such other property does not exceed seventy percent of its actual value. At first there were also allegations to the effect that the assessor and board of equalization systematically discriminated in the valuation and assessment of complainant's property and other property in the territory, but they were voluntarily stricken out by the plaintiff. It further alleged

"that the amount of its taxes upon the assessment as made by the board of equalization is the sum of $2,189, and that the amount of the assessment which your orator should justly pay for its said property, if lawfully, equitably, and justly assessed, would be the sum of $1,532.30, which said sum your orator brings into court, and hereby tenders and offers to pay to the said defendant Jose L. Perea, ex officio Collector of said County of Bernalillo."

Subsequently, and on November 29, 1889, it filed a supplemental bill the purpose of which was to restrain the collection of the taxes for the year 1889. That bill, on its face, failed to allege the amount of taxes levied upon the property of the plaintiff for that year, though by reference to one of the exhibits attached, the assessment roll for the county, it appears that it was $3,713.76. There was an allegation that the amount admitted in the original bill to be justly due for the taxes of 1888 had been paid, and then follow these averments, which are all there are, in respect to an admission of an amount due, payment, or tender:

"And your orator further alleges that, having paid all the taxes for which it was liable for the year 1888, it now comes into court and offers to pay all the taxes which can justly and

Page 147 U. S. 89

lawfully be assessed against it, and for which it may be justly and lawfully liable for the year 1889, and now tenders the same into court. . . ."

"And your orator further alleges that the said assessment and said tax roll are so made out that it is impossible to separate the property upon which your orator is justly and lawfully taxed, and the taxes upon which are just and lawfully levied, from the balance of the taxes assessed against your orator, but whatever sum may be ascertained by the court to be so justly due from your orator on account of taxes for the year 1889 your orator is ready and willing and bring the same into court and is ready to pay the same."

The demurrer to these bills, original and supplemental, was sustained by the district court, and the bills dismissed, and on appeal to the supreme court of the territory this decree was affirmed. From the decision of the supreme court of the territory complainant has brought this appeal.


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