Protecting the Value of Securities. When public securities are issued, the coupons to which are by law receivable for taxes, if the state by subsequent enactment undertakes to defeat this right and the tax collectors refuse to receive the coupons in payment of taxes, a holder of coupons who does not show that he is also a tax payer cannot have injunction to restrain a tax collector from such refusal. A bill for the purpose is without precedent.1

Personal Taxes. When a tax as assessed is only a personal charge against the party taxed, or against his personal property, it is difficult in most cases to suggest any ground of equitable jurisdiction. Presumptively the remedy at law is adequate. If the tax is illegal and the party makes payment, he is entitled to recover back the amount. The case does not differ in this regard from any other case in which a party is compelled to pay an illegal demand; the illegality alone affords no ground for equitable interference, and the proceedings to enforce the tax by distress and sale can give none, as these only constitute an ordinary trespass. To this point the decisions are numerous. The exceptions to this rule, if any, must

2

Austin, 46 Cal., 416; Houghton v. Austin, 47 Cal., 646; Central Pacific R. R. Co. v. Corcoran, 48 Cal., 65; Harkness v. Board of Pub. Works, 1 MacAr., 121. Tax payers may unite in a bill to enjoin payment of the whole tax when the interest is common, even though there may be no specific equities in favor of individual complainants. Sherman v. Benford, 10 R. I., 559. 1 Marye v. Parsons, 114 U. S., 325.

2 Brewer v. Springfield, 97 Mass., 152; Durant v. Eaton, 98 Mass., 469; Loud v. Charlestown, 99 Mass., 208; Whiting v. Boston, 106 Mass., 89; Hunnewell v. Charlestown, 106 Mass., 350; Rockingham Savings Bank v. Portsmouth, 62 N. H., 17; Ritter v. Patch, 12 Cal., 298; Berri v. Patch, 12 Cal.. 299; Worth v. Fayetteville, Winst. Eq. (N. C.), 70; Williams v. Detroit, 2 Mich., 560; Conley v. Chedic, 6 Nev., 222; Van Cott v. Supervisors of Milwaukee, 18 Wis., 247; Greene v. Mumford, 5 R. I., 472; McCoy v. Chillicothe, 3 Ohio, 370; Dodd v. Hartford, 25 Conn., 232; Sayre v. Tompkins, 23 Mo., 443; Barrow v. Davis, 46 Mo., 394; McPike v. Pew, 48 Mo., 525; Hopkins v. Lovell, 47 Mo., 102; Leslie v. St. Louis, 47 Mo., 474; Lockwood v. St. Louis, 24 Mo., 20; Fowler v. St. Joseph, 37 Mo., 228; Deane v. Todd, 22 Mo., 90; Youngblood v. Sexton, 32 Mich., 406; Hagenbuch v. Howard, 34 Mich., 1; Baltimore v. Railroad Co., 21 Md., 50; Dows v. Chicago, 11 Wall., 108; Hannewinkle v. Georgetown, 15 Wall., 547; Baldwin v. Tucker, 16 Fla., 258; Savings Bank v. Portsmouth, 52 N. H., 17; Brown v. Concord, 56 N. H., 375; Clark v. Ganz, 21 Minn., 387.

The doctrine of these cases is very succinctly stated by Bigelow, Ch. J.,

2

be of cases which are to be classed under the head of irreparable injury; as when the enforcement of a tax might destroy a valuable franchise; or when property is levied upon which possesses a peculiar value to the owner beyond any possible market value it can have; and other like cases where the recovery of damages would be inadequate redress. A case would be exceptional, also, if under the law no remedy could be had to recover back moneys paid. It must be conceded, however, that the courts in some states go further, and sustain the remedy by injunction in all cases of illegal taxation; proceeding in doing so upon the ground that "when officers or individuals have no legal authority to lay a tax, and they assume the right; or when persons are vested with the legal authority to lay a tax for a specified purpose, but instead of exercising that power they proceed to impose a tax which the law has not authorized, or lay it for fraudulent or unauthorized pur

in Brewer v. Springfield, 97 Mass., 152, 154. "Until the plaintiffs have been compelled to pay the tax which they allege to have been illegally assessed upon them, they have suffered no wrong. When they have paid it they can recover it back by an action at law, which would furnish them an adequate and complete remedy." See, also, Brooklyn v. Messerole, 26 Wend., 132. In Connecticut, taxes on real and personal estate are held to stand on the same footing. See Rowland v. School District, 42 Conn., 30. In Illinois, if a party is assessed for personalty in one town when his domicile is in another, he may enjoin the tax. Sivwright v. Pierce, 108 Ill., 133; Halstead v. Adams, 108 Ill., 609.

Where the case is one of equitable jurisdiction the court may give relief as to the whole case, though as to some part of it there would be remedy at law. Hebard v. Ashland Co., 55 Wis., 145.

1 Osborn v. Bank of United States, 9 Wheat., 738, where an officer was enjoined from enforcing a heavy state tax unlawfully laid on a branch of the Bank of the United States, on the ground that to enforce it would drive the bank from the state and work irreparable mischief. See Foote v. Linck, 5 McLean, 616; Wright v. Railroad Co., 64 Ga., 783; Cummings v. National Bank, 101 U. S., 153.

2 See Henry v. Gregory, 29 Mich., 68, 70.

First Nat. Bank v. Douglas Co. 3 Dill., 298. Injunction allowed where by statute replevin was prohibited and the collector was irresponsible. Deming v. James, 72 Ill., 78. So where the tax had been paid. Lewis v. Spencer, 7 W. Va., 689. So where the collector was proceeding against another party than the one assessed. Seeley v. Westport, 47 Conn., 294. But this only on the application of the party he is proceeding against. Waterbury Sav. Bank v. Lawler, 46 Conn., 243; Archer v. Railroad Co., 102 Ill., 493. See Columbus, etc., R. Co. v. Grant Co., 65 Ind., 427.

poses; then a court of equity will interpose to afford preventive relief, by restraining the exercise of powers perverted to fraudulent or oppressive purposes." But in the large majority of cases in which taxes are illegal, there is no fraud, actual or intended, and the illegality consists in an erroneous construction of powers, or in the unintentional omission of some necessary proceeding, or in other defect not inconsistent with good faith on the part of officers; and it seems a great stretch of equitable principles to treat such a case as one of legal fraud, and to be remedied on that ground. The equitable jurisdiction in these cases has grown up somewhat imperceptibly, and perhaps owes its origin as much to an idea that municipal officers, in the authority which affects the property of the people, are exercising a trust over which equity may properly assume a supervision, as to any supposed fraud, actual or constructive, which may be involved in their illegal action. In

1 Drake v. Phillips, 40 Ill., 388, 393, per Walker, Ch. J. See, also, Foote v. Milwaukee, 18 Wis., 270; Toledo, etc., R. R. Co. v. La Fayette, 22 Ind., 262; Commissioners of Clay Co. v. Markle, 46 Ind., 96; Knight v. Flatrock, etc., Co., 45 Ind., 134; Shoemaker v. Grant Co., 36 Ind., 175; Riley v. Western Union Telegraph Co., 47 Ind., 511; Spencer v. Wheaton, 14 Ia., 38; St. Clair Board's Appeal, 74 Pa. St., 252; McKonkey v. Smith, 73 Ill., 313; Lebanon v. Railway Co., 77 Ill., 539; National Bank v. Cook, 77 Ill., 622.

It is held the sale of land should be enjoined when there is leviable personalty. Abbot v. Egerton, 53 Ind., 196. Also that if the tax exceeds the charter limits, this is ground for injunction. Binkert v. Jansen, 94 Ill., 283; St. Clair School Board's Appeal, 74 Pa. St., 252.

2 Mr. High, in his valuable Treatise on the Law of Injunctions, says: "It will be found on examination that courts of equity have been inclined, in the case of assessments by municipal corporations, to relax somewhat the stringency of the rule of non-interference as applied to the collection of state taxes. Though it is difficult to perceive any sufficient reason for such distinction, yet the distinction itself remains." § 369. See Alexandria, etc., Co. v. District of Columbia, 1 Mack., 217.

In Missouri it is said, "This court has been disposed to regard with favor proceedings which are preventive in their character, rather than compel the injured party to seek redress after the damage is accomplished." Overall v. Ruenzi, 67 Mo., 203, 207. But this perhaps to avoid multiplicity of suits. See Ranney v. Bader, 67 Mo., 476, 480; Marsh v. Supervisors, 42 Wis., 502. In Wisconsin, by statute, if it appears in a suit to enjoin a tax that the tax is void, the proceedings may be stayed until a reassessment can be made. See Kingsley v. Supervisors, 49 Wis., 649; Clark v. Lincoln Co., 54 Wis., 580; Griggs v. St. Croix Co., 20 Fed. Rep., 341. In Illinois, by statute, an excess in a tax may be enjoined. Mee v. Paddock, 83 Ill., 494. As to the proof to make out an excessive school tax, see Gage v. Bailey, 102 Ill.,

view of the conflict in the decisions regarding the basis of equitable jurisdiction, it seems advisable to classify somewhat the cases which have been decided, indicating, wherever necessary, the points of divergence.

Excessive Assessments. For excessive assessments, when fraud is not charged, there can be no relief in equity. The remedy must be such as the statute has given.1

Irregular Taxation. A tax will not be restrained on the ground merely that it is irregular or erroneous. Errors in the assessment do not render the tax void, nor are they necessarily injurious. As a rule, therefore, they do not constitute any reason whatever against the tax being enforced. Moreover the law has provided remedies for all such mere irregularities

11. Where a party is assessed for property neither owned nor controlled by him, the assessment is without authority of law, and may be enjoined. Searing v. Heavy Sides, 106 Ill., 85.

Where a bill seeks relief which a board of review might have given, some excuse must be shown for not obtaining it there. Johnson v. Roberts, 102

Ill., 655.

If commissioners have acquired jurisdiction of a proceeding for the establishment of a drain, mere irregularities on their part must be objected to by a statutory appeal, not by applying for an injunction. Cauldwell v. Curry, 93 Ind., 363.

1 Kimber v. Schuylkill Co., 20 Pa. St., 366; Hughes v. Kline, 30 Pa. St., 227; Everitt's Appeal, 71 Pa. St., 216; Hutchinson v. Pittsburgh, 72 Pa. St., 320. An injunction would seem to be the appropriate remedy where a town makes discriminations in the discounts on taxes, this not rendering the tax illegal. Toby v. Wareham, 2 Allen, 594. The United States Supreme Court cannot inquire whether or not the estimated value of land for state taxation is excessive, and cannot correct errors and mistakes of detail in state taxation. Kelly v. Pittsburgh, 104 U. S., 78; Davidson v. New Orleans, 96 U. S., 97.

The necessity of a tax for a purpose embraced in a municipal charter is not for the determination of the courts. Hawkins v. Jonesboro, 63 Ga., 527.

Courts will not relieve from the payment of interest and penalties on the ground of the party's title having been in dispute. Litchfield v. Hamilton Co., 40 La., 66. But they may relieve where the penalty is unauthorized and excessive. Litchfield v. Webster Co., 101 U. S., 773.

Equity cannot give relief against an assessment for taxation in consideraof the great depreciation in value resulting from public causes, e. g., a rebellion. Such a consideration might appropriately be addressed to the legislative department, but not to the judicial. White Sulphur Springs Co. v. Robinson, 3 W. Va., 542.

and errors as do not go to the foundation of the tax, and parties complaining must be confined to these.1 The cases cited in the margin will show the application of this rule in a great variety of cases. Even where the error is one which might be damaging, like the failure of a review board to meet, the tax will not be enjoined without some showing that in

1 Wagoner v. Loomis, 37 Ohio St., 571. If the statutory remedy is lost by negligence, equity will not interfere. Wilkerson v. Walters, 1 Idaho, N. S., 564.

2 Dows v. Chicago, 11 Wall., 108; Hughes v. Kline, 30 Pa. St., 227; Clinton, etc., Appeal, 56 Pa. St., 315; Chicago, etc., R. R. Co. v. Frary, 22 П, 34; State v. Bremond, 38 Tex., 116; Jones v. Summer, 27 Ind., 510; Center, etc., Co. v. Black, 32 Ind., 468; Ottowa v. Walker, 21 Ill., 605; Metz v. Anderson, 23 Ill., 410; Purrington v. People, 79 Ill., 11; O'Neal v. Virginia, etc., Co., 18 Md., 1; Mills v. Gleason, 11 Wis., 470; Mills v. Johnson, 17 Wis., 598; Brooklyn v. Messerole, 26 Wend., 132; Marklot v. Davenport, 17 Ia., 379; West v. Whittaker, 37 Ia., 598: Iowa, etc., Land Co. v. Sac Co., 39 Ia., 124; Same v. Carroll Co., 39 Ia., 151; Litchfield v. Hamilton Co., 40 La., 66; Dodd v. Hartford, 25 Conn., 232; Greene v. Mumford, 5 R. I., 472; Lawrence v. Killam, 11 Kan., 499; Smith v. Leavenworth, 9 Kan., 296; Kansas Pacific R. R. Co. v. Russel, 8 Kan., 558; Merrill v. Gorham, 6 Cal., 41; Stilz v. Indianapolis, 81 Ind., 582; Patterson v. Baumer, 43 Ia., 477; Albany, etc., Mining Co. v. Auditor-General, 37 Mich., 391; Kaehler v. Dobberpuhl, 56 Wis., 480; Harrison v. Vines, 46 Tex., 15; Worley v. Harris, 82 Ind., 493; Brown v. Herron, 59 Ind., 61; Aurora v. Lamar, 59 Ind., 400, Challiss v. Atchison Co., 15 Kan., 49; Stebbins v. Challiss, 15 Kan., 55; Dundy v. Richardson Co., 8 Neb., 508; Sinclair v. Learned, 57 Mich., 335; Perley v. Dolloff, 60 N. H., 504; Frost v. Flick, 1 Dak., 131. If an inferior tribunal decides that it has jurisdiction of proceedings ending in a tax levy, objections to the ruling cannot be taken for the first time in proceedings to enjoin the tax. Reynolds v. Faris, 80 Ind., 14.

"The power of the chancellor to restrain the collection of revenue is one that should never be exercised but in cases where the tax is levied on property exempt from taxation, where it is doubly taxed, where it is levied without any warrant of law by persons having no power to make the levy, or where a clear case of fraud in making the valuation of the property is shown. But in the latter case the proof must be clear and irresistible, and the injury likely to be produced considerable." Union Trust Co. v. Weber, 96 Ill., 346. See Lemont v. Singer, etc., Co., 98 Ill., 94. If a tax deed is given on a judicial sale it will not be enjoined for errors, before judgment. Moore v. Wayman, 107 Ill., 192. To justify enjoining an illegal tax the illegality must go to the very root and substance of the tax, as would a failure to observe the equality provision of the constitution. London v. Wilming ton, 78 N. C., 109. See Brandirff v. Harrison Co., 50 Ia., 164; Delphi v. Bowen, 61 Ind., 29. If suit is brought for a tax, defense to it must be made there, and equity will not take cognizance of complaints afterwards. Utah. etc., R. Co. v. Crawford, 1 Idaho, N. S., 770.