method prescribed by statute is in general exclusive, and, unless a contrary intent can be gathered from the statute, it must be followed strictly; for the power which seeks to collect a tax must show clear authority to do so." 67

§ 4619. Remedies for illegal taxation. With respect to the remedies in the case of illegal taxation there is very little to be said that is at all peculiar to corporations. On this subject, therefore, the reader is referred to works on taxation generally. All that is practical at this point is a cursory treatment of the matter.68 To quote somewhat at length the leading work on the subject of taxation: "There are always methods in which one who is wrongfully assessed for taxation, or unequally taxed, may have abatement of the assessment or of the tax without resort to the customary legal remedies. While the assessor still has the list or roll in his hands uncompleted, he may abate any assessment on his own motion, or on application, when satisfied that it is either wholly or in part illegal or unjust. No statute could be necessary for this. But when the assessment has passed from his hands, the right to an abatement must in general depend upon the statute. No doubt the legislature might abate taxes, and probably the legislative authority of a municipality might do the same as regards a municipal tax, where no legislative or constitutional provision was in the way; but taxing officers or boards must have special authority to warrant their doing so. In the absence of special authority, they are to accept the assessment as legal and just, and levy and collect the taxes accordingly. A review

in some states is directed to be had before the assessor himself, with authority in that officer to abate the tax altogether if he finds the party unlawfully taxed, or taxed for property which is exempt or which he does not own, or to reduce the assessment, when excess is complained of, if in the opinion of the officer the complaint is well

tion of taxes, cannot object to the bringing of such an action against it on the ground that the establishment of personal liability against it would constitute the taking of its property without due process of law. Parker v. Rising Sun St. Lighting Co., 229 Mass. 494, 118 N. E. 871.

The amount of the money penalty to be incurred by the nonpayment of taxes assessed is a matter resting in the discretion of the legislature, and

a statutory penalty of fifty per cent of the delinquent taxes will not, as applied to a foreign telegraph company doing business in the state, be in. valid under the Federal Constitution. Western U. Tel. Co. v. Indiana, 165 U. S. 304, 41 L. Ed. 725.

67 Cooley on Taxation (3rd Ed.), p. 829.

68 See Cooley on Taxation (3rd Ed.), c. 24, p. 1377 et seq.

founded. Whatever may be the relief sought, the party applying for it must comply strictly with the provisions of the statute which confers the right. But the authority to review is more likely to be conferred upon some court or other appellate tribunal, which will either sit for the purpose of hearing complaints generally, or which will be empowered to hear such appeals as are brought to it in some mode which the statute prescribes. And here, also, it is necessary that the rule of strict conformity to statutory provisions be observed. When the tax is illegal, one is not obliged to apply for an abatement, unless the statute makes that the sole remedy; but he may contest the tax when attempt is made to collect it; 69 or, under certain circumstances, may bring an action to recover back the tax when paid. But for a merely excessive or unequal assessment, where no principle of law is violated in making it, and the complaint is of an error of judgment only, the sole remedy is an application for an abatement, either to the assessors or to such statutory board as has been provided for hearing it.70 The courts either of common law or of equity are

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69"It is undoubtedly true that a taxpayer may enjoin the collection of a tax founded upon an assessment fraudulently and corruptly made with the intention of discriminating against him, and for the purpose of causing him to pay more than his share of the public taxes. and it is equally true that the fact of such a fraudulent assessment would be available to the taxpayer as an equitable defense in an action brought to enforce the collection of a tax founded upon an assessment of that character. But in appealing to a court of equity for relief by way of injunction against such fraudulent assessment, the plaintiff must show by his complaint that he has paid or tendered the amount of taxes which would have been due from him if his property had been assessed at what he concedes would have been a fair valuation, and he must, in addition, offer to pay what the court shall find to be equitable and just, and we think the same facts should appear in an answer which seeks to defend against the collection of a tax upon the ground of a

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fraudulent assessment." Los Angeles County v. Ballerino, 99 Cal. 593, 594, 34 Pac. 329, 32 Pac. 581, cited in Western U. Tel. Co. v. Missouri, 190 U. S. 412, 47 L. Ed. 1116.

70 Mere overvaluation is not a defense to an action at law for the tax, abatement proceedings proceedings being the proper and only remedy. Rockland v. Rockland Water Co., 82 Me. 188, 19 Atl. 163, quoting Howe v. Boston, 7 Cush. (Mass.) 273. See also Inhabitants of Foxcroft v. Piscataquis Valley Campmeeting Ass'n, 86 Me. 78, 29

Atl. 951.

Under the law of Missouri mere overvaluation is no defense to a suit upon a tax bill. State v. Western U. Tel. Co., 165 Mo. 502, 65 S. W. 775.

"Overvaluation of property cannot be a ground of defense at law. In other words, the action of the tax officers, being in the nature of a judgment, must be yielded to until set aside. This can only be done in a direct proceeding. The property owner is in effect a plaintiff, and the condi tion of relief against the enforcement of the quasi judicial order, which he

powerless to give relief against the erroneous judgments of assessing bodies, except as they may be specially empowered by law to do so. This principle is applicable to statutory boards of equalization, which are only assessing boards with certain appellate powers, but whose action, if they keep within their jurisdiction, is conclusive except as otherwise provided by law,71 although if fraud is charged there may be a remedy in equity. And the general rule is that if one fails to appeal to the statutory board of review, he can have no remedy in the courts. But where the defect is jurisdictional, one does not lose rights by failing to appeal to a board or council which could not have remedied the defect. For a merely irregular assessment the statutory remedy is also the exclusive remedy. It is supposed to be adequate to all the requirements of justice, and it is the person's own folly if he fails to avail himself of it." 72

As a general rule, and provided there is no statute to the contrary,73

attacks, is a tender of payment of the taxes that he ought to pay. And this condition would still be upon him if he sets up overvaluation as an equitable defense to an action brought against him." Western U. Tel. Co. v. Missouri, 190 U. S. 412, 47 L. Ed. 1116 (aff'g State v. Western U. Tel. Co., 165 Mo. 502, 65 S. W. 775), citing Los Angeles County v. Ballerino, 99 Cal. 593, 34 Pac. 329, 32 Pac. 581.

71The act of a board of equalization in assessing property for taxation is a judicial one, and its judgment in a case within its jurisdiction and in the absence of fraud is not open to collateral attack but can be impeached only in a direct proceeding. So, where the board of equalization had jurisdietion, receivers of a corporation cannot defend the intervening petition of the county treasurer that they be compelled to pay the corporation's unpaid taxes for certain years on the ground that such board in assessing such taxes had, through a mistake of fact and error of judgment, placed an excessive valuation on the corporation's property. McLeod v. Receveur, 71 Fed. 455, 458.

Unlawful discrimination, in the as

VII Priv. Corp.-53

sessment of the property of a telegraph company by the state board of equalization, resulting from the adoption by such board of a higher basis of valuation than that employed by the local assessors throughout the state in assessing property generally, cannot be availed of as a defense to an action at law to collect the taxes assessed (State v. Western U. Tel. Co., 165 Mo. 502, 65 S. W. 775, aff'd Western U. Tel. Co. v. Missouri, 190 U. S. 412, 47 L. Ed. 1116), the assessment having been within the jurisdiction of the board and that being void on its face. Western U. Tel. Co. v. Missouri, 190 U. S. 412, 47 L. Ed. 1116, aff'g State v. Western U. Tel. Co., 165 Mo. 502, 65 S. W. 775. To recognize such discrimination as a valid defense would be to permit a collateral attack on the judgment of the board, whereas such judgment can only be attacked directly and then only in equity. State v. Western U. Tel. Co., 165 Mo. 502, 65 S. W. 775, aff'd Western U. Tel. Co. v. Missouri, 190 U. S. 412, 47 L. Ed. 1116.

72 Cooley on Taxation (3rd Ed.), p. 1378.

73 See Cummings v. Merchants' Nat.

a corporation cannot maintain a bill in equity to enjoin the collection of an illegal tax 74 if there is a complete and adequate remedy at law, either by virtue of special statutory provisions, or by virtue of the common law.75 This is most certainly true when the bill is filed in a federal court, since it is expressly provided by act of Congress that 76 while an unconstitutional tax may confer no right, im

pose no duty and support no obligation,77 the trespass resulting from proceedings to collect such void tax cannot be enjoined where irreparable injury or other ground of equitable jurisdiction is not shown. to exist.78 But a suit for an injunction may be maintained if these is no adequate remedy at law,79 or if it is necessary in order to avoid a multiplicity of suits, or if there is any other recognized ground of equity jurisdiction,80 and such a suit cannot be defeated on the ground that it is a suit against the state and as such void under the Eleventh Amendment to the Federal Constitution.81