Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/521

 CHAP. VIII.] CORPORATION AND STATE. [§ 492*. for that purpose upon such evidence as they may obtain, a dif- ferent principle comes in. The officers in estimating the value act judicially ; and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assess- ments. The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be fol- lowed, if the tax be not paid, by a sale of the delinquent's prop- erty, is due process of law." 1 § 4:92b. In order to obtain the aid of a court of equity to restrain the collection of a tax, the case must be T i -i- pi -i« i ■ Junsdic- brought within some or the recognized foundations tion of of equity jurisdiction, and mere error, or excess in restrain°the valuation, or hardship or injustice of the law, or any of^tax 11 grievance which can be remedied by a court of law, either before or after payment of the tax, will not warrant a court of equity to interpose by injunction to stay the collec- tion of a tax. 2 And as a general rule, the owner of taxable property who would enjoin the collection of a tax thereon, must first pay or tender so much as is due. 3 1 Hagar v. Reclamation District, 111 U. S. 701, 709, 710. (There is appended at the end of this case a note of the legislation of the colouies before the Revolution, and of the states since, giving the taxpayer the right to be heard before the assess- ment becomes final.) See Railway- Co. v. Backus, 154 U. S. 421. Com- pare Porter v. Rockford, etc., R. R. Co., 76 111. 561; Railroad Tax Cases, 13 Fed. Rep. 722. 2 State Railroad Tax Cases, 92 U. S. 575; see Union Pacific Ry. Co. v. Cheyenne, 113 U. S. 516; Allen v. Baltimore and Ohio R. R. Co., 114 U. S. 311. One of the reasons why a court should not thus interfere, as it would in a matter between individ- uals, is that it has no power to ap- portion the tax, or make a new as- sessment, or order a new assessment to be made by the proper officers of the state. The levy of taxes is not a judicial function, but by the consti- tutions of all the states, and by the theory of our English origin, is ex- clusively legislative. If there is an overvaluation of the franchise, or of the capital stock, or of both, it is an error of judgment in the officers to whose judgment the law confided that matter ; and it does not lie with a court to substitute its- own judg- ment for that of the tribunal ex- pressly created for that purpose. lb. Compare Wright v. Southwest- ern R. R. Co., 64 Ga. 783; South- western R. R. Co. ». Wright, 68 Ga. 811. 3 National Bank i Kimball, 103 U. S. 732; compare Supervisors r. Stan- 501