
    Fort v. Dixie Oil Co. Same v. Hammett Oil Co. Same v. Hudson.
    
      (Jackson,
    
    April Term, 1936.)
    Opinion filed July 3, 1936.
    
      For former opinions, see Fort v. Dixie Oil Co., 93 S. W. (2d), 1260; Fort v. Hudson, 93 S. W. (2d) 1263; Fort v. Hammett Oil Co., 93 S. W. (2d), 1264.
    Richard M.- Atkinson, Daniel Boone, Joed an Stokes, Jit., Jobean Stokes, III, and J. Whitworth Stokes, all of Nashville, for appellants Fort et al.
    
    Norman Farrell, of Nashville, for appellees.
   Mr. Chibe Justice Green

delivered the opinion of the Court

Petitions to rehear are filed in these cases which present with some further elaboration the same contentions submitted on the hearing.

The petitioners continue to insist that the statutory provision permitting them to recover the full amount of a tax illegally exacted of them is not an adequate remedy. As we noted in the original opinions, this court and other courts have quite generally held to the contrary, unless some exceptional circumstances are presented. We find no such exceptional circumstances in the cases before us.

It is again urged that the seizure of petitioners ’ chattels under the distress warrants issued herein will work them irreparable injury.

Where there is a full, complete, and adequate remedy at law for an injury, it is not irreparable. The distress warrants reach nothing but personal property and the personal property here involved, filling station equipment, has merely a commercial value, readily ascertainable.

If this personal property is wrongfully seized by the state and applied to the payment of taxes for which the petitioners are not liable, each of the petitioners has a simple remedy, in a single suit, to recover the value of the property so taken under duress. Code, section 1793 et seq. does not require the payment of the entire amount demanded, as a condition to recovery of taxes wrongfully exacted. Suit lies for the recovery of any sum so paid under duress and protest.

As a practical proposition, it here appears that each of petitioners tendered a bond to the court below in double the value of the property seized. Petitioners, with such financial backing, could certainly raise an amount of money equal to the value of their property, and bid in the same at the sale under the distress warrants and by timely suit recover their money if held not to be liable for the taxes involved.

We are unable to see how the enforcement of the gasoline tax laws, according to our statutes and previous decisions, can work any great hardship on a taxpayer.

The commissioner of finance and taxation, administering- this law, is under a heavy bond. Code, sec. 264. If he is guilty of official oppression, he is subject to criminal prosecution and a heavy fine. Code, sec. 11110. Every official bond executed under tbe Code is obligatory on tbe principal and sureties “for tbe nse and benefit of every person who is injured, as well by wrongful act committed under color of bis office as by tbe failure to perform, or tbe improper or neglectful performance, of tbe duties imposed by law.” Code, sec. 1833. Any person aggrieved may bring suit on tbe bond. Code, sec. 8621.

Tbe presumption is tbat tbe commissioner of finance and taxation bas done bis duty in making bis investigation and bis findings as to tbe amount of taxes due tbe state from these petitioners. As stated in tbe original opinions, there is no definite allegation of fraud or misconduct on tbe part of tbe commissioner in these matters. Under our statutes just mentioned, petitioners can have full redress against tbe commissioner and tbe sureties on bis bond if they have been injured by any wrong or negligence of bis, as well as recovering any sums illegally exacted of them for taxes.

Much bas been said in tbe petitions to rehear about tbe decisions of tbe United States Supreme Court in suits brought to enjoin tbe collection of taxes unlawfully levied. In tbe last opinion of tbat court on this subject, banded down May 18, 1936, Graves et al. v. Texas Company, 56 S. Ct., 818, 823, 80 L. Ed., 1236, tbe court was at pains to justify tbe injunction therein issued because tbe taxpayer “bad no plain, adequate, or complete rem-. edy at law.” Such is not tbe case here.

Bank of Commerce & Trust Co. v. Senter, 149 Tenn. 569, 260 S. W., 144, disposes of tbe proposition tbat the statute authorizing the recovery of taxes paid under protest or duress does not provide an adequate remedy in case of a privilege tax, the amount of which is a matter of computation.

In one of the petitions to rehear, we are asked to remand the particular cause for an amendment to the petition for certiorari therein filed. Such practice is not followed in this jurisdiction. Tennessee Public Service Co. v. City of Knoxville et al. (Tenn.), 91 S. W. (2d), 566.

Another petitioner asks that the case he removed to the District Court of the United States for further hearing. This application, of course, comes too late.

The petitions to rehear must accordingly be denied.  