SECOND NAT. BANK V. OALDWELL.
t-29
that firm and the complainants. Fry has also a lien by virtue of his attachment upon the interest of the complainants for the sum which may ultimately be re.co-yered in the suit against the complainants. Of course, Fry must account for the amount of all coupons collected. It is understood from the statements of counsel that the;! rights of the parties being adjudged, the extent of their respective interests can be arrived at without a reference to a master. Upon filing a stipulation a reference will, therefore, be dispensed with; otherwise, a reference will be dire:Jted. Unless the parties otherwise stipulate, the decree will provide for the appointment of a receiver to sell the bonds and distribute the proceeds to the parties accordinl{ to their respective rights. The defendant Fry is entitled to costs.
SECOND NAT. BANK OF TITUSVILLE, PENNSYLVANIA, 11. CALDWELLsnd
others. (District Court, W. D. Pennsylvania. October Term, 1882., 1. CONSTIT'Q'TIONAL LAW-TITLE OF ACT.
Under the settled construction of section 3, art. 3 of the constitution of Pennsylvania. where an act of assembly is entitled, a supplement to a former named act, and the subject thereof is germane to that of the original act,its subject is sufficiently expressed. . 2. SAME-REVISION AND AMENDMENT OF STATUTE. ,"
The constitutional provision: "No law shall be revived, amended>,or thE; provisions thereof extended or conferred by reference to its title on'ly; but so much thereof as is revived, amended, extended, or Conferred shaUlIe re.enacted and published at length," is sufficiently complied with if a supplement and amendatory act is set forth and published at length in its amended form. 3. TAXATIO:N-NATIONAL BANKS-REAL 'EBTATE TAXABLE.
Under the Pennsylvania act of June 10, 1881, entitled" a supplement to an act en.titled 'An act to provide revenue by taxation,' approved the .lievl;lnth day of June, 1879," the real estate of a national bank ,is subjec.tto taxation " distinct from its other capital. 4, SAME-LICENSE TAX ON BANK.
A license tax. imposed by city ordinance upon a national bank being a tax upon the operations of the ,bll-nk, and a direct obstruction to the exercise, of its corporate powers is unconstitutional; b,ut the ordinance notllndertaking to of debt only for its collection, the make the tax a lien, and giVing an bank iaBot entitled to equitable relief 'by injunction,
In Equity. Frank B. Guthrie, for plaintiff. Grnmbine and J., U'" Smith, for defendants.
480 ACHE:SON, D. j . ' The plaintiff's claim to exemption from local taxation on its real estate restsilpon the assumption that section 17 of the act of assembly cif June 7, 1879,fP; L. 112,) entitled "An act to provide revenue by taxation," is still in"full force. That section enacts that "in case any bank or savings institution incorporated by thlsstate, or any national bank, elect to collect annually from the shareholders thereof a tax of six-tenths of 1 per centum upon the par value of all the shares of said bank or savings institution, and pay the same into the state treasury on or before the twentieth day of June in every year, the shares, capital, and profits of such bank shall be exempt from all other taxation under the laws of this common· wealth." And if the plaintiff's hypothesis that this law is in operation were correct, there would be good ground for its complaint that its real estate has been illegally assessed with local taxes; for it was held in County of Lackawanna v. First Nat. Bank of Scranton, 94 Po.. St. 221, that ,the banking house of a bank is part of the capital represented by its shares of arid,a tax upon the par value of the shares, is a tax upon it. ' But after geoislon was made, the legislature on June 12, 1881, passed an act entitled "A supplement to an act entitled 'An act approved the day of June, to provide reveAue by onethgusand eight hundred and seventy-nine," the third section of whjch is words: "In case any bank or savings institution, incorporated by this state, or the United States, shall elect to collect annually. from shareholders thereof a tax of six-tenths of 1 per centum upon the par value of all the shares of said bank or savings institution, andpa.y the same into the state treasury on or before the :first day of March in each year, the shares, and so much of the capital and profits of such bank as shall not be invested in real estate, shall be exempt from all other taxation under the laws of this commonwealth." The purpose of this section is not doubtful. Obviously the intention is to restrict the exemption from taxation' conferred by the act of June 7, 1879, and to subject the real estate of banks to distinct taxation; Moreover, section 6 of the act of June 10, 1881, expressly repeals the seventeenth section of the act of June 7, 1879. It is, on l>ehalf of the plaintiff that the third section of the act of June 10, 1881, is inoperative and void, and for this several reasons are assigned: 1. The title to the act, it is said, is iA conflict with section 3' of article 3, of the constitution of Pennsylvania: "No bill, except general appropriation bills, shall'be passed' containing more than one
SECONp
"subject, which shall be clearly expressed in its title." But it is settled of this section thatwbere an act of assembly is eJ;l:titled flo supplement to a former· act, and the subject thereof is germane to the subject of the original act, its subject is sulliciently expressed to meet the constitutioual requirement. State Line « Juniata R. Co.', Appeal, 77 Pa. St. 429; Craig v. First Pres. Churqh, 88 Pa. St. 42. In the present case the supplement, from first ,to last, relates to revenue by taxation, and there is no provision in it incongruous with the original act. 2. It is insisted that the third section of the act of June 10, 1881, is in conflict with section 6 of article 3, of the constitution of Pennsylvania: "No law shall be revived, amended, or the provisions thereof extended or conferred, by 'reference to its title only; but 80 much thereof as is revived, amended, extended. or conferred, shall be reenacted and published at length." It cannot j of course, be pretended that there is here any violation of the first part of tbis section, for there was no attempt to revive or amend the. original act, or to extend or confer its provisions, by reforence to the, title only. T:\1e objection, as stated in the bill of complaint, is this: "that said ,third section materially amends the provisions of s,ection 17 of the act of June 7, 1879, (to whichit is a supplement,) and fails to re-enact and publish at length so much of said act, of June:S, 1879, as is thereby amended. "But does the constitutional provision in question require that a supplemental and amendatory act must republish the original act or so much thereof as is amended ? This I understand is what is insisted on,., It seems to me, however, that such is not the natural or true construction of the clause. It is to be read as a whole, and thus ,considered its purpose is plain. It was intended to prevent covert legislation and the passage of laws whoso meaning and object are not fully disclosed. If there is no attempt tq legislate by refer. ence to the title of the old law, it is, I think, sufficient if the proposed law in its amended form is "re-enactedand published at length." Treating of a similar constitutional provision, Mr. Cooley, in his work on Constitutional Limitations,pl\oge 185, well says that the,;r!3quirement"is fully complied with in letter ancJ spirit, if the act or section revised or amended is set forth and published as revised Qramended, .and that anything more onlY.ten<Js to render the statute unu;ecessarily cumbrous."of the IJ,(}t afJune , 3. Again, it is contendedths;t thethil'd 10, 1881, in so far as,it would subject the real estate of )l,atioij,al banks to taxation for local purposEjs"is inoperative and void for repug.
432
JEDEBALBEPOBTBB.
nancy. The argument runs thus: Under the aot of congress, (Rev. St.§ 5219,) only the shares and real estate of national banks are taxable under state laws, and the shares are not taxable at any higher rate than other moneyed oapital of individuals. In Pennsylvania. the moneyed capital of individuals is exempt from all local taxation, and was so exempt prior to the passage of the acts of June 7, 1879, 'and June 10, 1881. At the time of the passage of the latter act the only property of national banks taxable for local purposes was their real estate, and therefore the restricting words in the third section of the act of June 10, 1881, excepted from the operation of the act the only property of national banks to whioh the exemption could extend, and they thus constitute a saving clause repugnant to the purview of the act, and void. But the argument is not satisfactory, and, even if tbe premises were conceded, the conclusion sought to be deduced could not be for it was held in Hepburn v. The School Directors, 23 Wall. 480, that shares in national banks, in Pennsylvania, may be valued for taxation at an amount above their par value. The act of ,'June 10, 1881, therefore, does unquestionably leave something for its exemption clause to- act on, and the argument based upon a supposed repugnancy plainly fails. It will be perceived that neither the act of June 7, 1879, nor that of June 10, 1881, imposes a tax of six-tenths of 1 per centum upon the par value of the shares of stock. Under each of these acts the payment of that ta,x is optional with the banks. The former act gave the banks the election to pay the specified tax in commutation for all other taxes under the laws of the commonwealth; the latter act gives the banks the like option in commutation for all taxes, except that on real estate. The only difference is in the extent of the exemption. It is not pretended that the method of taxation contemplated by this legislation is open to constitutional objections, or contravenes the provisions of the national bank act. Indeed, the plaintiff is satisfied with and seeks the benefit of the act of 1879. But why could not the legislatnl'emodify that act by the amendments incorporated in the act of June 10, 1881? Clearly it was competent for the legislature to do so. I am of opinion that none of the objections which the plaintiff has raised against the validity of the local taxation of its real estate for the year 1882, are tenable. At the' hearing of this case the validity of the ordinance of the city of Titusville, in so far as it attempts to impose a tax license upon national banks doing,business in that city, was not much discussed;
SEOOND NAT. BANE: V. OALDWELL.
483
and at present I shall simply indicate what my impressions are on that subject. It seems to me the ordinance undertakes to tax the operations of national banks, and is a direct obstruction to the exer· cise of their corporate powers. I do not see that this license tax is distinguishable from the business tax involved in the case of the city of Pittsburgh v. First Nat. Bank oj Pittsburgh. 55 Pa. St. 45, which the supreme court of Pennsylvania, following the authoritative cases of McCulloch v. State, 4 Wheat. 816, and Osborn v. U. S. Bank, 9 Wheat. 738, adjudged to be unconstitutional. But it does not follow that because the tax is illegal, the plaintiff is entitled to an injunction to restrain the collection thereof; Dows v. Chicago, 11 Wall. 108; Hann.ewinkle v. Georgetown, 15 Wall. 547; State Railroad Tax Case, 92 U. S. 575; and I am of opinion that the bilI does not bring the plaintiff's case within any of the recognized foundations of equitable jurisdiction. ld. The ordinance imposing the tax does not undertake to make it a lien, and it is not enforceable by any. summary process. The ordinance gives an action of debt for its collection, and it is not otherwise collectible. To such action the bank can set up its defense, and therefore needs not equitable relief. What has been said covers all the questions thus far raised, and it is only necessary to add that the motion for a preliminar,}' injunction must be denied; and it is so ordered. NOTE. A suit may be maintained by a national bank, on behalf of its stockholders, to enjoin state officers from the cqllection of a state tax on the shares of the bank, on the ground of an illegal assessment arising from the failure to deduct from the valuation the debts owed by the shareholders,(a) although payable in the first instance by such shareholder, if a multiplicity of suits can be thereby avoided, or injury to its business or credit is anticipated.(b) A bill to restrain the collection of banks must show a statute discriminating a state tax on the shares of against them, or that they are rated higher in proportion to actual valuation than other moneyed corporations.(c) A shareholder who has made affidavit and demand for deduction of the debts owed by him from the valuation of his shares, as required by law, may bring suit to enjoin the collection of such tax.(d) And where it is shown that the affidavit and demand would TAXATION ON NATIONAL BANK SHARES. (a) Nat. Alb. Exch. Bank v. Hills, 6 Fed. Rep. 249; Hl11s v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93; Cummings v. Nat. Bauk, 101 U. S.I63; Pelton V. Nat. Bank, Id. 143. (6) City Nat. Bank V. Paducah, 6 Cent. Law J. 1147. See Nat. Alb. Excb. Bank v. Hl1Is.6 Fed. Rep. 248; bnt see, also, S. C. reversed, 12 Fed. Rep. 93.
(c) Germsn Nat. Bank V. Kimball, 103 U. S. 732; Hl11s v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93; and see Sup'rs or Albany V. Stanley, III Fed. Rep, 8'2. and note. (d) Hills v. Nat. Alb. Exch. Bank. 12 FlJd. Rep. 93.
v.1S,no.9-28
434
FEDERALBEPOBTER.
have been unavailing, they may show, in an action by the bank brought ou their behalf, the deductions to which they were entitled,(e) The taxation by a state of the capital stock of a national bank invested in United States securities will be restrained,(/) but injunction will not lie to restrain the collection of a tax illegally assessed by the municipal authorities upon the shares of a national bank in gross, instead of against the individual shareholders, though such municipal corporation be insolvent, as there are ample remedies at law.(g) Nor will it restrain the collection where the shares are taxable and no excessive valuation is complained of, although the officers arrived at a correct result by an erroneous method.(h) RESTRAINING COLLECTION OF TAX. A court of equity will not restrain the collection of a tax on the mere allegation that it is illegal or vOid.(i) There must be some additional specialcircumstances,(j) under some recognized head of equity jUrisdiction ;(k) as that its enforcement wonld lead to a multiplicty of sUits;(l) or produce irreparable injury;(m) or irremediable oppressioni* or, where it is real estate, that it would create a lien, or cast a cloud on the title;(n) or for fraud. (0) Where there was no allegation of damage sustained, or that the sale of the land levied on would cloud the title, or work irreparable mischief,lt was held that the court of equity had no jurisdiction to grant reliefi that the remedy should be sought at law, where power to grant relief was full, adequate, and complete.(p) ON GROUND OF MULTIPLICITY OF SUITS. The equity powers of the court cannot be invoked to prevent an apprehended injury save where its exercise is necessary to prevent a multiplicity of BUits.(q) Where the rights of a large (d) Hills v. Nat. Alb. Exch. Bank, 12 Fed. Hep.93. See Sup'rs of Albany v. Stanley, 12 Fed. Rep. 82, and cases cited. (f) First Nat. Bank v. Douglass Co. 3 DIU. 298. (g) Nat. Com. Bank v. Mobile, 62 Ala. 284. (11) St. L. Nat. Bank v. Papin, 231",t. Rev. Reo. 343. (t) Oliver v. Memphis, etc., R. Co. 30 Ark. 128; Armstrong v. Co. Ct. of Taylor Co. 15 W. Va. 190; Douglassv.Harrisville, 9W. Va. 162; Woodward v. Ellsworth, 4 Col. 580; Clarke v. Ganz, 21 MInn. 387; Albany City Nat. Bank v.Maher,6 Fed. Rep. 417; Greenup v. Franklin Co. 30 Ark. 101; state Railrood Cases, 92 U. S.6431 Mann v. Board of Ed. 53 How. PI'. 289; 8wlnne, v. Board, 71 Ill. 27; Leitch v. Wentworth, 71 1Il. 146; McConkey v. Smith, 73 Ill. 313; VlIIage of Nunda v. Village of Chrystal Lake, 79 Ill. 311; Alexander v. Dennison, 2 McArth. 662; Wells v. .Payton,11 Nev. 161; R. Co. v. Lincoln Co. '2 Dill. 297; Me.sick v. Sup'rs, 60 Barb. Han. Ion v. West Chester Co. 57 Barb. 383; Susqne. hanna Bank v. Broome Co. 25 N. Y. 312; Weaver v. State, 39 Ala. 535; Cook 00. v.·Chlcago, etc., R. Co.85 Ill. 460; McPonald v. Murphree, 45 Miss. .705; Sayre v. TompkIns, 23 Mo. 44.3; First Nat. Bank v. Meredith, 44 Mo. 600; Barrow v. Davis, 46 Mo. 394; McPike v. Pew, 4S Mo. <;25. . (J) Armstrong v. Co. Ct. of Taylor Co. 15 W. VR. 190; Douglass v. Harrisville, 9 W. Va. 162; Clarke v. Gallz, 21 Minn.3S7; Parmley v. St. Lawrence. etc., R. Co. 3 DUI. IS; Barley v. Pacific, etc., R. Co. rd. 22; Murphy v. Mayor, 10 Reporter, 765; Dows v. Chicago. 11 Wall. 108. (k) Armstrong v. Co. Ct. of Taylor Co. 15 W. Va. 190; Douglass v. Harrisville, 9 W. V". 162; Clarke v. Ganz, 21 Minn. 387; Carrothers v. Board of Ed. 16 W. Va. 327; South Platte Land Co. v. Buffalo Co. 7 Neb. 253i Same v. Crete, 11 Neb. 344. · (I) Carrothers v. Board of Ed. 16 W. Va, WZl; Armstrong v. Co. Ct. of Taylor Co, 15 W. Va. 190; Dougl"ss v. Harrisville, 9 W. Va. 162; South Platte Laud Co. v. Buft'alo Co. 7 Neb. 253; Murphy v. Moyor, 10 Reporter, 765; Guest v. City of Brooklyn, 69 N. Y. 606; State Railroad Tax Cases, 9'J U, S. 576. (m) Douglass. v. Harrisville, 9 W. Va. 102; Murphy v. Mayor, 10 Reporter, 765; !venson·v. Hance, 1 Wyo. 270; South Platte Land Co. v · Buffalo Co. 7 Neb. 253; Gnest v. City of Brook· lyn, 69 N. Y. 606; Osborn v. Bank, 9 Wheat. 738. (.) State Railroad Tax Cases, 92 U. S. 575. . (n) Donglass v. Harri8ville. 9 W. Va. 162; Mur. phy v. Mayor, 10 Reporter, 765; Iveuson v. Hance,1 Wyo. 270; South, Platte Land· Co. v. Buffalo Co. 7 Neb. 253; Guest.v. City of Brooklyn, 69 N. Y. 606; Stllte .Railroad Tax Cases,92 U. S. 676. .f (0) Murphy v. Mayor, 10 Reporter, 765. (,,) Moody v. ;JamIson, 64 Tex. 492. (q) Guest v. City of Brooklyn. 69 N. Y. 608j Greenup v. Franklin Co. 30 Ark; 101..
SECOND NA.T. BA.NK'''. CALDWELL.
435
number of persons are involved, or a multitude of suits may be averted, and great individual loss and damage prevented, a court of equity may interfere to prevent the collection of a tax.(r) Where the case is brought under some head of equity jurisdiction, and brought in behalf of himself alone or of all other tax-payers similarly situated, if shown that the tax is illegal, to avoid a multiplicity of suits, equity will take jurisdiction by injunction,(s) as equit,y disfavors a multiplicity of sUits.(t) Multiplicity does not mean multitnde, and injunction will not be granted where the object is to obtain a consolidation of actions, or to save the expense of separate actions ;(u) that assessment is divided into a number of installments, does not bring it within this exception.(v) Where an alleged illegality extends to the whole assessment, or where it affects in the same manner a number of persons, so that the question involved can be presented by one bill, filed by all or any number thus interested, such joint bill may properly be filed.(w) An action in equity may be maintained by any one upon whose real estate an apparent lien has been created on his own behalf. and in behalf of others in like situation, to have it canceled and to restrain its enforcement.(re) The rule applied to assessments for local im. provements.(lI) When brought by more than one complainant, a bill which states distinct grounds for relief, relied on by each separately, is multifarious.(z) When an invalid tax includes an assessment on personalty as well as on realty, a court which obtains jurisdiction to restrain the collection of the tax on the land may properly give relief to the person. (a) IRREPAR:ABLE INJURY. In no case will the collection of a tax be enjoined where it is not shown that the injury resulting from its enforcement would be irreparable;(b) but where irreparable injury would ensue the court will enjoin the 8ale;(c) and this fact must appear in the bill by issuable averments;(d) and it must clearly appear not such an indebtedness as the duty of a citizen requires him to discharge.(e) It must appear that his rights will be greatly or irreparably affected by the acts sought to be restrained, and the (r) George v. Dean, 47 TeL 73. (0) Carrothers v. Board of Ed. 16 W. Va. 327; Doonan v. Board of Ed. 9 W. Va. 246; London T. City ofWllming;ton,·7SN. C. 109. (t) Conkllng v. Secor Sew. Mach. Co. 65 How. Pr.269. (v) Morphyl'. Mayor, 10 Reporter, 765. (11) Gnest l'. City of Brooklyn, 69 N. Y. 606. (tD) Brandorft' v. Harrison Co. 00 Iowa, 164; Mandeville l'. Riggs. 2 Pet. 482; Floyd .l'. Gil. breath, Z1 Ark. 676; Webster l'. Harwinton, 32 Conn. 131; Terre' l'. Sharon, 34 Coon, 105; King l'. Wilann, I Dill. 666; Conlson l'. Portland. Deady, 481; Bnll l'. Read, 13 Gratt. 78; Johnson l'. Drummond, 20 Gratt. 419; Holmes l'. Baker, 16 Gray, 269; Vanover l'. The Jnstlces, Z1 Ga. 864; Lafayette l'. Cox, 6 Ind. 38; NlII l'. JenkinIOn, 16 Ind. 426; Oliver T: Keighley. 23 Ind. 614; Harwood l'. 8t. Clair, etc., Co. 61 111. 130; McMlllan v. Lee Co. 8 Iowa, 31I; Kerr l'. Lansing, 17 Mlch..34 , Scolleld l'. Lansing, Id.437; Metz l'. Detroit, 18 Mich. 496; Baltimore l'. Porter, 18 Md. 1l84; Bal'imore l'. SlII, 31 Md. 376; Hooper l'. Ely, 46 Mo. 605; Steiner v. Franklin Co. 48 Mo. 167; Barr T. Deniston, 19 N. "'170; Manly v.
4 Jones"Eq. 370; Galloway l'. Jenkins, 63 N. C. 147; Upington v. Oviatt, 24 Ohio St. 232; Matt v. Penn. R, 00.30 Pa·. St. 39; Page v. Allen, 68 Pa. St. 338; Stevens l'. Rntland. etc.. R. Co. 29 Vt. 646. (s) Clark l'. Vl1Iage of Donkirk,12 Hun, 181;
'.
Meth. Epis, Cbnrch l'. New YOl'k Clty,27 Hnn, 297; Temple Grove Seminary l'. Cramer. 33 Hnn, 388.
(y) Kennedy l'. City of Tr.oy, 14 Hnn, 308; Clark l'. Village of Dnnklrk, 12 Hnn, 181. (z) Hndson l'. Atchison Co. 12 Kan. 140; Kerr l'. Lansing, 11 Mich. 34. (a) Folkerts v. Power, 42 Mlcb. 203. (b) Ritter l','Patch, 12 Cal. 298; Sooth Platte Land Co. v,Bntral0 Co. 7 Neb. 363. (c) Oliver l'. Memphis L. R. R. Co. 30 Ark. 128, (II) Ritter l'. Pntcb,12 Cal. 298; Frost l'. Flick, 1 Duk. 131. Bee Sheldon v. Scbool.dlst. 2& Conn. 224; Dodd v. Hartford, and compare Sal'. &: Loan Ass'll l'. Anstln, 46 Cal. 416; Honghton l'. An8tln,47 Cal, 64e; Dentral Pac. R. Co. v. Corcoran, 48 CIIl. 66. (e) Frost 1'; Flick, Fbak. 131;
436
FEDERAL REPORTER.
right must be clear, and the remedy at law inadequate.(f) This rule isapplicable to an assessment for a local improvement as well as to a state and county tax.(g) CLOUD ON TITLE. A court of equity will not restrain a sale for taxes where the only damage is to cast a cloud on the title;(h) nor will it interfere to remove a cloud on title till one eXists;(i) as a man may protect his land from sale upon a tax warrant, or from a cloud on his title by a tax lien, by paying the tax and suing to recover it back. Such payment is not to be regarded as voluntary.(}) A bill to enjoin the collection of a tax, which by statute is made a lien on lands, snstained as a proper one to remove a cloud on title to lands.(k) But where the assessment is made a personal charge against the owner, and not a lien on the land, no other ground would authorize equitable interference than such as would exist in case of a tax on personalty.(l) Where a tax constitutes an apparent lien on lands, and might result in a sale and conveyance by deed, which would be prima facie evidence of title, a bill will lie to enjoin its collection where the .tax is illegal ;(m) and a sale by publie officers under authority of law, but having no authority in fact, is such a cloud as would authorize the interposition of a court of equity.(n) ON GROUND OF FRAUD. Equity has jurisdiction to enjoin the sale of personal property for taxes where the bill. alleges and the proof shows that the taxes were fraudulent;(o) as where the property was fraudulently assessed at too high a rate;(p) or where there is a clear case of fraud in the valuation of the property.(q) In the latter case the proof must be clear·and irresistible, and the injury likely to result must be considerable;(r) and where the bill fails wholly to show afraudulent assessment, but only an excessive valuation and irregularities in making the assessment, injunction will not lie ;,(8) but l'roof of fraud is necessary only where the error or irregularity is one of those enumerated. Where not enumerated, and .it is a substantial one, proceedings to vacate are maintainable without proof of fraud under the statnte.(t) A statement in the bill that the assessment was outrageously exorbitant and was fraudulently made, witbout showing in what the overvaluation consists, and giving no facts' or particulars, is not sufficient, as a mere allegation of fraud is not sufficient, and, overvaluation of itself will not establish fraud.(u) If fraud is charged, equity may interfere; but courts have no right to interfere (f) Normand v. Otoe Co. 8 Neb. 18; Dodd V. Hartford, 25 Conn. 232. (g) Dean v. Davis, 51 Cal. 407. (h) Red v. Johnson, b3 Tex. 284. (i) Judd v. Town of Fox Lake, 28 Wis. 6ll3; Milwaukee Iron Co. v. Rnbbard,,29 Wis. 32. (j) Seeley v. Westport, 47 Conn. 2911. (k) Thomas v. Gain, 36 Mich. 166. (I) Brewer v. springo.eld, 97 Mass. 162; Honne. well v. Charlestown, 106 Mus. 360; Williams v. netrolt, 2 Mich. 660; Renry v ·. Gregory, 29 Mich. 68. . .(m) Mbl'qoette R. Co. v. Marqoette, 35 Mich. 5().1. · _
(n) Ottowa v. Walker, 21 Ill. 30:,; Chicago, B. & Q. R. Co. v. Frary, 22l11. 34; Barnard v. Hoyt,
63 Ill. 341 ; Litchfield v. Polk Co. 18 Iowa, Rol. land v. Baltimore, 11 Md. lSli: Leslie v. St.I,ouis, 47 Mo.474; Burnett v. Cincinnati, 3 Ohio, 73, Colbertoon v. Cincinnati, 16 Ohio, 574; Dean v. lIon, 9 Wis. 402. .(0) Lewia v. Spencer, 7 W. Va. 689. (11) Frost v. Flick. 1 Dak. 131; Evanl v. GMe, 1 Brad'l\'. 202; Clegborne· v. Postlewaite, 4-1 Ill. 428; Albany Min. Co. v. And. Gen. 37 !\oIlch. (q) Union Trnst Co. v. Weber, 96 Ill. 346; Town of Lemont v. Singer & Talcott Stone Co. 98 Iii. '94, (I') Union Trnst Co. v. Weber, 96 Ill. 346. (.) Gage v. Evanl, 90 Ill. 6!i9. (t) In re Emigrant Indost. Say. Bank, 76 N. y, 389.. (,,) Union Trust Co. v. Weber. 92111. 346. ·
SECOND NAT. BANK V. CALDWELL.
437
on the grollnd that the tax is unfair or unjust, unless the fundamental law of the land has been violated.(v} ON PIWPERTY NOT SUBJECT TO TAXATION. Where taxes are levied on pruperty wholly exempt, their collection may be restrainerI.(w} But while courts of equity will, in many cases, enjoin the collection of a tax sought to be enforced against property exempt from taxation, they will not enjoin the collection of the whole tax, because, in determining the valuation of an aggregate property, exempt property may have been included as a factor.(x) Where the only ground of relief is a present use for religious and charitable purposes, a decree restraining the collection of taxes is erroneous.(y} So a school-house used and occupied for a boarding-school is not exempt.(z} When the board of equalization adds to the return of a tax-payer an item of property not taxable, and directs the county auditor to carry the amount so added on the duplicate, and assesses against it the rate of taxation paid for IItate, Ct U lty, and city purposes, an injunction lies to enjoin the aUditor.(<Z) When the board of equalization adds to the returnof the tax-payer' an item OfPfOPerty not taxable, and directs a person to carry the amount so.added on the duplicate and assessment against it at the rate of taxation, injunction will lie to enjoin the auditor from so doing.* 'fhat land within the municipal corporation is used for agricultural purposes, and the Qwner derived no .benefit from it, is no ground for an injunction.(b) TAX ON PROPERTY OF ANOTHER. While it is a general rule that a court of equity will not interfere to restrain the collection of taxes, yet it will not refuse to restrain a tax collector by injunction, where the party against whom he is proceeding is not the tax and the property is not that on which the tax was laid;(c} especially where there is no remedy at law; as where the party taxed is insolvent and not ready to respond in damages.(d) Where a party not the owner or lessee of property, having no taxable interest therein, but who is merely in joint use with the owner for a compensation, is i axed for one-half of its value, the tax will be illegal and levied without warrant of law, and equity will enjoin its collection ;(e) but where a railroad company, having the use of another road, agrees to advance money to the latter to pay the taxes, it cannot enjoin the collection of such taxes, which are proper and legal on the assumed ground of its owneriJhip of the property.(f) WITHOUT AUTHORITY OF LAW. A court may enjoin the co:bction of a tax, and will exercise its power in all cases where the tax has been levied (II) Linton v. Mayor of Athens, 63 Ga. 688; . 7 Nev, 392; Morris, etc., Co. v. Jersey Olty, 1 Cleghorne v. Postlewaite, 43 III. 423;. D,uling v. Beas.227. Gunn. 60 Ill. 424. (....) Hnck v. Ohlcago &. A. R. 00. 86 III 352. (10) Frost v. Flick, 1 Dak. 131; Illinois Cent. R. (y) Beach v. Shoenmaker, 18 Kans. 147. Co. v. McLean 00.17 III. 391; Lonisvllle & N. Co. (..) Rea T. Johnson, 63 Tex.. 284. (a) Jones v. DaVis, 36 Ohio St. 474, v. Gaine, 3 Fed. Rep. 206; Village of Nnnda T. Village oC Chryst" I Lake, 79 Ill. 311; Union (*) Jones v. Davis, II) Repo!1er. 122. Transp. Co. v. Wel,er. 96 JIl. 316; Town of Le. (b) Linton v. Mayor of Athens, 53 Ga. 588.· mont v. Singer &. Talco.t Stone Co. 9 J JII. 94; (c) seeley v. Westport, 47 Oonn. 294, Bnt see Evans v. Ga"e.1 Bradw. 2112; Smith Y.Osbnrn. Waterbnry Say. Bank v. Lawler, 46 Conn. 243. (d) Deming v · Jones, Ill. 78. 63 Iowa,474; Washington He'ghts M. E. Ohurch v. New York, 20 Hun, 2.7; .-llbany. etc., Min. 00. <e) Irwin v. N. 0 , 'to L. & O. R. 00. 91 Ill. 105. v. And. Gen. 37 Mich.: 71; Klmhall v. Merchants' (f) Archer v. Tene Hante & lad. R. Co. 1(12111. (9a. Sav., L. & T. 00. 89 JII. liB; stats v. Ormsbl Co.
438
without authority of law ;(g) or where the persons imposing it are not authorized by law;(h) or where the persons attempting to levy are not officers dejure or de facto, and unauthorized by law;(i) or where levied by persons authorized, but' who transcend their authority,(j) and exceeded the amount authorized by law;(k) or where the tax was illegally assessed ;(1) or assessed in conflict with the statute.(m) Injunction is the proper remedy to prevent the sale of real estate for taxes, the levying of which is prohibited by law.(n) Courts of chancery have jurisdiction to enjoin illegal taxes or assessments by counties, cities, or other tribunals, boards or officers, (0) and such jurisdiction is not taken away by the statute.(p) Justices' courts have authority to issue injunctions in aU tax suits of which they have jurisdiction.(q) The amount of the tax in dispute is the criterion of jurisdiction.(r) A party seeking by injunction equitable relief against an alleged unauthorized action of the board of equalization, must establish olearly facts showing that the board had acted illegally and without authority.(a) ILLEGAL TAXATION. A court of equity will not interfere on the sole ground that the statute imposing the tax is unconstitutional ;(t) so where the only ground is that the statute annexing the lands taxed to the municipality which had levied the tax, was unconstitutional; for if the law was valid, the tax was good, and if void, the invalidity was apparent on the face of the assessment and could not cloud the title. Injunction will not lie where the defect is patent.(u) If the tax is illegal on the face of the proceedings, or totally void, and carries with it on the record notice of its illegality, no relief can be obtained in equity ie'll) but where the assessment on the face of the proceedings is valid, and it requires extralleous evidence to show that it is invalid, equity will relieve to prevent a cloud on the title.(w) So a deed given by a (8) Frost v. Flick, 1 Dak. 131; Wright v. S. W. (.) International & G. N. R. Co. v. Smith Co. 64 Ry.Co.64 Ga.783; Kimball v. Merchants' Sav., Tex. 1. L. & 1'. Co. 89 1Il. 611; Union Trnst Co. v. Weber, (t) Townsend v. New York City, 77 N. Y. 642. 9611l. 340; McClure v. Owen, 21 Iowa,I33; Web· (u)Curtlsv. EastSaglnaw,35 Mich. 608; Town. ster v. Baltimore Co. 61 Md. 396; Marlon CO. V. send v. New York City, 77 N. Y. 642; Stewart y. Palmer, 74 N. Y. 183. Barker, 26 Kan. 268. (11) Albany, etc., Min. 00. v. And. Gen. 37 Mich. (0) Ewing v. St. Louis, 6 Wall. 413; Hanne. Winkle v. Georgetowu, 16 Wall. 647; Mobile, 391; Evans v. Gage, 1 Bradw. 202. .c., R. CO. v. Peebles, 47 Ala. 317; Floyd v. Gil. (1) Village ofChrystal breath,27 Ark. 676; Robinson v. Gaar,6 Cal. 273; 79 Ill. lIll; Union Trnst Co. v. Weber, 96 1Il. 346; Bucknall v. Stol7, 36 Cal. 67; Stewart v Palmer, Town of'Lemont v. Singer & Talcott Stone Co. 98 Ill. 94; Albany, .. MIn. 00. v. And. Gell. 37 74 N. Y. 183; Cox v. Clift, 2 N. Y. 118; Scott v. Onderdonk. 14 N. Y. 9; Hatch v. Buffalo, 38 N. Mich. 391. Y.276; Newell v. Wheeler, 48 N. Y.466; Livinga. (J) Sonth Plstte Land Co. v. Buffalo Co. 7 Neb. 25-3; V1Ilage of Nunda v. Village of Chryatal Lake, . ton v. Hollenbeck, 4 Barb. 9; Van Rensselaer v. Kldd, Id. 17; Bonton v. Brooklyn, 16 Barb. 376; 79 Ill. 311. Messerole v. Brooklyn, 8 Paige, 198; Wiggins v. (k) Town ot Lemont v. SInger & Talcott Stone New York, 9 Paige, 16; Vall Doren. v. New York, Co. 9I:l Ill. 94. Id. 388; Dean v. Madison, 9 Wis. 402; Head v. (I) Folkerts v. Powel1l, 42 Mich. 2S3; Froat Y. Jamel, I3 Wis. 641; ShepardlOn v. Mlllwaukee, Flick, 1 Dak. 131. 28 Wis. 693; Milwaukee Iron Co. v. Hubbard. 29 (m) Hassan v. City of Rochester, 67 N. Y. 628. WII.61. (n) Mechanics' Bank v. City of Kanaas, 73 Mo. (to) Clark v. Vlllage of Dnnkirk, 12 Hun, 181; 665. Meth. Epll. Chnrch v. New York,27 Hun, 297 ; (0) LIttle Rock v. Barton, 33 Ark. 436. Temple Grove Seminary v. Cramer, 33 Hun, (1') Carrothera v. Clinton District, 16 Weat Va. Dows v. Chicago, 11 Wall. 108; Hannewinkle v. 627. Georgetown, 16 Wall. 647; Coulson Y. Portland, (g) Gonzales LIndsay, 30 La; Ann. 1085. Deady, 481; Huntington v. Cant. Pac. R. Co. (r) Adams v. B\lard of Com'ra, McCahon, 241.
public officer is an .apparent cloud, requiring extraneous evidence toremove.(x) Sueh deed is presumptive evidence that all the statutory provisions haye been complied with.(g) Whenever the claim of the adverse party to the land is valid upon its face, and it requires extrinsic evidence to establish itsjnvalidity and illegality, the court will entertain jurisdiction in equity.(z) TAXES IN PART ILLEGAL. Courts will not interfere with the collection ()f taxes unless they are void, or are levied without authority,(a) nor restrain an extension of a tax on the tax-books unless wholly unauthorized and void in all its parts ;(b) and not then, unless the tax-payer has paid or tendered such taxes as are legal.(c) If a portion of a tax is legal and a portion illegal, if the legal can be separated from the illegal, an injunction will not be granted to restrain the collection of the entire tax ;(d) but if they cannot be separated, a sale for the collection of such mixed taxes is void.(e) A bill against a sheriff alone, to enjoin the collection of county taxes, cannot be maintained on the allegation that the claims for which the taxes were levied. were "in great part illegill."(/) The payment of that portion which is legal, isa condition precedent to the right to maintain the 8uit.(g) OMISSIONS FROM AssESSMENT ROLL. Unlawful exemptions or omissions from the assessment rolls will invalidate the whole assElllsment.(h) Where assessors omitted from the assessment property benefited by the improvement, an action may be maintained by one or more persons assessed on behalf of themselves and others similarly situated to restrain the enforcement and col2 Sawy. 603; Shell v. Martin, 19 Ark. 189; Chap. lin v. Holmes, ZT Ark. 414; Harmer v. Bohog,8 Cal. 384; Webber v. San Francisco, 1 Cal. 4&6; Robinson v. Gaar, 6 Cal. ZT3; Cohen v. Sharp, 44 Cal. 29; Gage v. Rohrbach, 56 Ill. 262; Gage v. Blll\ogs, Jd. 268; Reed V. Tyler, Id. 288; Gage V. Chapman, Id. 311; Barnett v. Cline, 60 Ill. 205; Reed v. Reber, 62 Ill. 240; Lee v. Roggles, Id.4ZTI Harrison v. Haall, 26 Ind. 281; Lapp v. Morrill, 8 Kan. 678; Leigh v. Everhart, 4 T. B. Mou. 3791 Conway v. Waverly, 16 Mich. 257; Palmer V. Rich, 12 Mich. 414; Scofield v. Lansing, 17 Mlch. 437; Kenyon v. Dnchene, 21 Mich. 498; Wellerv. St. Paul, &Minn. 95; Morrison v. St. Panl, 9 Minn. 108; Lockwood V. St. Louis, 24 Mo. 20; Fowler v. St. Joseph, 37 Mo. 228; Sonth Platte Land CO. V. Bnffalo Co. 7 Neb. 263; Morris Canal Co. v. Jersey City, 1 Beas. 2ZT; Moor. v. Smedley, 6 Johns. Ch. 28; Pettit v. Shephard, 5 Paige, 493; Oakley v. Trustees, 6 Paige, 262; Van Doren v. New York, 9 Paige, 388; Hanlon v. Supervisors, &7 Barb. 283; Scott v. Onderdonk, 14 N. Y. 9; Heywood v.BnCCalo, Id. 534; Ward v. Dewey, 16 N. Y. 519; Hatch v. Buffalo, 38 N. Y. 276; Allen v. Bnffalo, 39 N. Y. 386; Crooke v. Andt'ews, 40 N. Y. 547; Overing v. Foote, 43 N. Y. 290; Newell v. Wheeler, 48 N. Y. 486; Dean V. Madison, .1i WiR.402; Weeks v.Milwaukee, 10 Wis. 242; Jenkins v. Rock Co. 16 Wis. 11; Mltcbell v. Milwaukee, 18 Wis. 92; Crane v. Jauesville, 20 Wis. 305; Grimmer v. Sumner, 21 Wis. 179; Ham_ Ilton v, Fond du Lac, 2& Wis. 490; 81egllL v. biitagami8 26 Wis. 70 i Judd v. Fox Lake, Wis. 683; 8hepardson v. Mllwankee, Id. 693; Well Y. Grosvenor, 31 Wis. 681. Beach v. Hayes, 68 How. Pro 17. (y) Beach v. Hayes, 68 How. Pro 17. (,.) Lewis v. City of Buffalo, 1 Sbeld. N. Y. Sn. per. Ct. 80. (a;) Ottawa Glnss Co. v. McCaleb, 81 Ill. 656. (6) Ottawa Glass CO. V. McCaleb, 81 Ill. 566. (c) Ottawa Glass Co. v. Jl-IcCRleb, 81 Ill. &56. (4) Bnrlington & Mo. Rlv. R. Co. v. York Co. 7 Neb. 487; Mesker v. Koch, 76 Iud. 68. (0) Shattuck v. Daniel, 52 Miss. 834. (I) Beck v. Allen, 68 Miss. 143. (8) Twombly v. Kimbrough, 24 Ark. 469; Adams v. Castle, 30 Conn. 404; O'Kane v. Treat, 26 Ill. 6&7; Taylor v. Thompson, 42 Ill. 9; Briscoe v. Alllson, 43 Ill. 291; Reed v. Taylor, 66 Ill. 288 ; Barnett v. Cllne, 60 Ill. 206; Harrisonv. Hans, 2& Ind. 281; ROReberry v. Hnlf, 27 Ind. 12; Board of Com'rs v. Elstou, 32 Ind. 271; Morrison v. Hershire, 32 Iowa, ZTl; Shelton v. Dnnn, .6 Kan. 128; Conway v. Waverly, 15 Mich. 257; Palmer v. Napoleon, 16 Mich. 176; Frazer V. Siepern, 16 Ohio St. 614; Hersey v. Milwaukee, 16 Wis. 185; Bond v. Kenosha, 17 Wis. 284; Myrick v.,La Crosse, Id. 442; MllIs v. Johnson, Id. 598; Mills v. Charleston, 29 Wis. 400 ; Dean v. Borschsenins,3O Wis. 236. ' (ii) New Orleano v. Fonrchy, ail La. Ann. 910; People v,. McCrevy, 34 Cal. 32; .&inscatlne v. Rqllroad Co. 1 Dill. 542; Insurance Qo. v. Yard, 17 Pa. 339; Morrison v. Larkin, 26 La. Ann. 7021 !llinois R. Co. v. McLean Co·. 17 !11. 291.
440
lection of the same;(i) and the payment of part of the assessment will not prevent suit to restrain further prosecution.(j} Accidental omissions of property from the assessment roll, or omissions though purposely made under a mistake of law, and in the belief that tM omitted property is not taxable, is no ground for enjoining the collection of the tax upon the property which is assessed.(k) One whose assessment is increased by an unauthorized omission of lands of another, may maintain an action against the city to restrain the enforcement of the assessment;(l) but where the proof merely shows that in the assessment of property in the city there was an undervaluation in a few cases, it is not sufficient to vitiate the wholeassessment.(m) ERRORS AND IRREGULARITIES. A court of equity will not interfere to correct an erroneous assessment and enjoin the collection of taxes thereon.(n) The remedy at law in such cases is deemed exclusive.(o) There will be no judicial interference on account of irregularities in the return or assessment ;(p) as for a failure to return the assessment roll to the county clerk in time.(q) So a mere informality, which does not affect a substantial right, in no way invalidates the tax ;(r) as in the mere form of the assessment,(s) or a misdescription or irregular entry in the tax list,(t) or the omission of an otlicer to do his duty.(u) But if the tax has been certified by mistake by the clerk to have been voted, when in fact the proposition was defeated, equity will restrain its collection.(v) A mere irregularity, either in making valuation or levying, will not vitiate unless it substantially affects the justice of the tax,(w) or unless fraudulently done,(x) or unless property is doubly taxed ;(y) but the collection of taxes on the capital stock of corporations, over and above the value of its taxable property, Willllot be enjoined as double taxation,(z) or unless a party is denied a legal right, as the right to work out a poll tax ;(a) but a failure of (t) Clark v. Village of Dunkirk, 12 Hun, 181; Kennedy v. City of Troy, 14 Hun, 308. (1) Clark v. Village of Dnnklrk, 12 Hun, Illl; Kennedy v. City of Troy, 14 Hun, 308. (k) Burlington & Mo. Riv. R. Co. v. Saline Co. 12 Neb. 324; Burlington & Mo. Rlv. R. Co. v. Sew· ard Co. 10 Neb. 211. (I) H""sen v. City of Rochester, 65 N. Y. 519; S. C.6 Lans. 185. (m) Marshall v. Benson, 48 Wis. 658. (n) 8tate Railroad Tax Cases, 92 U. S. 613; Powers v. Bowman, &3 Iowa, 359; Chicago, B. & Q. R. Co. v. Sidons, 88 Ill. 320; Burke v. Speer, 59 Ga. Decker v. McGowan, 69 Ga. 805; Georgia Mut. L. Ass'n v. McGowan, Id. 811; Merchants' B. & L. Ass'n v. Peter, 63 Ga. 351; Thatcher v. People, 79111. 697; Purrington v. Peo. ple,79 Ill. 11; Morrill V Douglass 17 Kans. 293; Beers v. People, 83 III. 488. (0) Maclot v.·Davenport, 17 Iowa, 379; Coulln v. Seaman, 22 Cal. 646; Emery v. Bradford, 29 Cal. 75; Nolan v. Reese, 32 Cal. 41:l4; Chambersv. Satterlee, 40 Cal. 497; Windsor v. Field, 1 Conn. 279; Peoria v. KIdder, 26 11I.:liH; Deane v. Todd. 22 Mo. 90; Hughes v. Kline. 30 Pa. St. 280. See State v. Baxter, 36 N. J. L. 188; State v. Mayor, Id.288. (P) Burke v. spear, 59 Ga. 363; Decltel' y. Mc.
Gowan, 59 Ga. 805; Georgia M. L. Ass'u v. Mc. Gowan, Id.l:>l1; Stocltle v. Silsbee, 41 Mich. 615; State Cent. R. Co. v. Mutchler, 41 N. J. L. 96; Schofield v. Watkins, 22 111. 66; Chicago. B. & Q. R. Co. v. Frary, 22 Ill. 34; Munson v. Minor, Id. 594; Metz v. Anderson, 23 111.463; Du Page Co. v. Jenks, 65 Ill. Zl5. (q) Burlington & Mo. Rlv. R. Co. v. Saline Co. 12 Neb. 396. (r) Burlington & Mo. Rlv R. Co. v. Lancaster Co 12 Neb. People v. Assessors of Brooklyn, 16 Hun, 196; State Cent. R. Co. v. Mutchler, 41 N. J. L. 96. (.) State v. N. J. R. Co. 41 N. J. L. 235. (t) George v. Dean, 47 Tex. rd. (u) Matter of Pinckney, 29 Hun, 474 i Burt v. Aud. Gen. 39 Mich. 126. (l» Cnttrell v. Lowry, 45 Iowa, 478. (tc) Law v. People, 87 Ill. 385; SIoux City &St. P. R. Co. v. Osceola Co. 45 Iowa, 168. ("') Gage v. Evans, 90 Ill. 669. (y) Union Traus. Co. v. Webber, 96 111. 346; Com. v. Sup'rs of Colby, 29 Pa. 8t.121; Say. & L. Soc. v. Austln,46 Cal. 415. (.c) Danville Lumber, etc., Co· .,. Parks, 88 Ill. 463. (Il) MlJ1er v. Gorman, 38 Pa. St. 309; Sioux CIty & S\. P. R. Co. v. Oticeola Co. 46 Iowa, 168.
SEOOND NAT. BANK V. OALDWELL.
441
the road supervisors to give notice of the time when and place where the road tax will be worked out, does not invalidate the tax on the lands of a non-resident.(b) It must appear that equity alone can give redress,(c) and that the assessment is illegal and void as distinguished from irregular.(d) REMEDY AT LAW. Equity will not restrain the collection ofa tax when there is a full and adequate remedy at law,(e) even though fraud be alleged in the bill ;(1) and although the levy is on real estate, except in extreme cases. (g) The party seeking relief in equity must be without a legal remedy, or the remedy must be practically useless. (h) A court of equity will not enjoin a tax collector who threatens to seize personal property without lawful authority, as such seizure would be mere trespass, remediable in a court of law;(i) and if a defense in a tax suit is available at law, equity will not enjoin.(j) There is no remedy in eqUity when the state statute provides a remedy for illegal assessments ;(k) and the fact that the remedy provided by statute may be inadequate, does not justify judicial interference,(l) as it is in the discretion of the legislature to provide the mode of assessment, and the exercise of that discretion is not reviewable in the courts.(m) Where a mode is prescribed, and a tribunal established by law to provide against an illegal tax, complainant has a full and adequate remedy at law.(n) EXCESSIVE VALUATION. Excessive valuation alone will not be sufficient to warrant the interference of a court of equity.(o) Courts of equity cannot convert themselves into assessors for purposes of taxation and reassess in every case where the assessor has erred in his judgment as to the value of property, even if the tax-payer has notified the assessor that the true value is less than that fixed in the assessment, and the collection of the tax will not be enjoined merely because of an erroneous judgment in the valuation of property, or for a mistake in deducting the proper amount of exemptions where no fraud is shown.(p) When the inequality of valuation is the result of a statute of the state designed to discriminate injuriously against any class of persons or species of property, the court will grant appropriate relief.(q) EXCESSIVE ASSESSMENTS. The collection of a tax will not be enjoined, although the assessment is alleged to be excessive of the amount authorized (b) Burlington & Mo. Riv. R. Co. v. Lancaster Co. 4 Neb, 293. (c) Chicago, etc., R. Co. v. Siders, sa Ill. 320. (d) City of Delphi V. Bowen, 61 Ind, 29; Bank v. Waters, 12 Reporter, 292. (e) HeWItt's Appeal, 83 Pa. St. 55; Brown v. Concord, 58 N. H. 375; Say. Bank v. Portsmouth, 52 N. H.17; Taylor v. Secor. U.S. Sup. Ct. Oct. T. 1875; Hagenbuch v. Howard, 34 Mich. 1; MenTS v. Howartb, 34 Mich. 138. (f) Hagenbuch v. Howard, 34 Mich. 1. (g) Rowland v. First School.dist. 42 Conn. 30. (II) Clarke v. Ganz, 21 Minn. 2f37. (I) Baldwin v. Tucker, 16 Fla. 200; Price v. Kramer, 4 Col. 546. (j) Archer v. Terre Haute & Ind. R. Co. 102 III. 493. (k) Heckman v. New York City. 29 Hun, 690; Green v. Mumford, 5 R. 1.472; Woodwal'd v.ElIs-
worth, 4 Col. 680; Magee v. Denton, 5 Blatchf. 130; Weaver v. State, 39 Ala. 635; Dodd v. Hartford, Conn. 232; Missouri Riv. etc., R. Co v. Wheaton, 1 Kans. 232. (I) Warren v. St. Paul, 4 Law & Eq. Rep. 556. (m) King v. Portland City, 2 Or. 146. (n) Brewer v. Sprlngtleld, 97 Mass. 152; Brook. lyn v. Messerole, 26 Wend. IJ2j Woodward v. Ellsworth" 4 Col. 581; Meth. Epls. Church v. New York, 56 'How. Pro 57. (0) Evans V. GaKe, 1 Bradw. 202; Pacitlc Hotel Co. v. Lleb, 83 III. 602; Woodman v. Ely, 2 Fed. Rep. 839. (p) Traders' Ins. Co. v. Farwell, 1m !II. 13. (q) People v. Weaver, 100 U. S. 639; Fulton V. Nat. Bank, 101 U. S. 143; Cumming V. Nat. Bank. Id. 1:;3; Nat. Bank v. Kimball, 2 Morr. Trans 463.
442
REPORTER.
by law,(,·) the remedy in such case being given by statute.(s) Where a person claims that the assessment of taxes was excessive, but failed to apply to the board of appeals to have the error corrected, and no excuse given for his ure to apply at the proper time, the courts cannot interfere to stay the tion of the tax,(t) unless made excessive from corrupt and' malicious tives j(u) and it will not interpose unless clearly shown that the tax is inequitable and against conscience. (v) Where the excess in the taxes is easily ascertained, the court will restrain the collection of such excpss (w) Injunction in such case is the proper remedy, but before the writ is granted the court should require the complainant to pay so much of the tax as .he con· fesses to be due.{x) The party seeking an injunction should pay so much of the tax as it can plainly be seen he ought to pay. He cannot be permitted to enjoin the collection because his tax is in excess of what is just and lawful, so as to SCl'een himself from any tax at all, until the precise amount is ascertained by a court of equity.(y) If any part of a taxis legal, that part must be paid before the party will be heard to complain of an illegal portion.(z) The general rule is that the bill of injunction will not be sustained unless the' portion properly collectible is paid or tendered.(a) And the bill is defective, ev.en if it states grounds for relief, where it fails to aver a tender of the amount admitted to be legally dne ;(b) and it is not sufficient to allege that he is" willing," or" that he has paid it into court."(e) It should be shown, as near as possible, what part is just and what part is unauthorized, and that which is just should be paid as a condition of obtaining the relief sought;(d) for without tendering what he ought in equity to pay, he will be liable for costs, but if he offers to pay it, his bill ought not to be dismissed, as he has a right to judgment for the remainder.(e)-lED. (r) Osborne Co. v. Blake, 19 Kans. 299; Powers v. Bowman, 63 Iowa, 369. (.) Kimber v.SchnyJklll.20 Pa.Bt.366; Hnghes v. Kline. 30 Pa. St. 227; Everett's Appeal,11 Pa. St. 216; Hntchinson v. Pittsburgh, 7L Pa. St. 320. See Cleghorne v. Postlewaite, 43 Ill. 428; Darling v. Gunn, 60 Ill. 424. (t) Johnson v. Roberts, 102 Ill. 666; Meyer v. Rosenblatt,8 Mo. App. 602; Kittle v. Shlrvin, 11 1'ieb. 6&; Meth. Epis. Chnrch v. New York, 6& How. Pro &7; Honston & Tex. R. Co. v. Prellidlo Co. 63 Tex. 618. See Matter of Mt. Morrl. Sqnare, 2 HUI, 14; Stafford V. Albany, 6 Johns. I; Matter of Beekman St. 20 Johns. 269; Matter of Canal St. 11 Wend. 154; Matter of Canal and Walker Sts. 12 N. Y. 406; Petition of Eal(er, 46 N. Y. 100; Western R. Co. v. Nolan. 4S N. Y. 613; Gravel Road Co. v. Black. 3'2 Ind. 468; Holton V. Bangor, 23 Me. 264; Stickney v. Bangor, 30 Me. 404; Gilpatrick V. Saco, 67 Me. 277; Richardson V. Scott, 47 Miss. 236; Kimber V. Schuylkill, 20 Pa. St. 366; Hnghes V. Kline, 30 Pa. St. 227; Wharton v. Bir. miugham,37 Pa. St. 371; Clinton School·dist. Ap. peal,66 Pa. St. 315; Stewart V. Maple, 70 Pa, St. 221; Everett's Appeal, 71 Pa. St. 216; Connty Conrt V. Marr, 8 Hnmph. 634. (1') Albany, etc., R. Co. V. Canaan, 16 Barb. 244; Merrill v. Humphrey, 24 Mich. 170; Lefferts v. Calnmet, 21 Wis. 688; Milwankee Iron Co. V. Hnbbard, 29 Wis. 61; Repnbllc Life Ins. Co. v. Pollak, 7 Chi. Leg. News, 357. (I» Stokes v. Knarr, 11 WIs. 889; Dean v. Glea. SOb, 16 WIs. 1. - (tD) Trnll v. Com'rs of Madison, 72 N. C. 388. (",) Overall v. Rnenzl, 67 Mo. 203; London v. Town of Wilmington, 78 N. C. 109; Second Nat. Bank v. Kimball, 2 Morr. Trans. 463. (y) Nat. Bank v. Kimball. 16 Blatchf. 398; S. C. 12 Fed. Rep. 96, note; State Railroad Tax Cases, 92 U. S. 675; Pelton v. Nat. Bank, 101 U. S. 143; Cummings v. Nat. Bank. Id. 163; Will. iams v. Weaver, 1OOU. S. 689; Merrill v. Humph. reY,24 Mich. 170; Frazerv.Siebern,16 Ohio St.611. (J<) San Jose Gas Co. v. Jannary, 57 Cal. 614; Hunt v. Easterday, 10 Neb. 166. (a) Mobile & O. R Co. v. Moseley, 62 Miss. 127; Mullekin v. Reeves, 71 Ind. 281; Hagaman v. Clark Co. 19 Kans. Worther V. Badgett, 32 Ark. 496; Litchtield v. Webster Co. lUI U. S. 773; Durfee V. Mn ....ay, 7 Bradw. 213. (b) Johnson v. Roberts, 102m. 65i; Connors v. Detroit,8 Reporter, 335; Jones V. Davis, ld. 122. (c) Parmley v. St. Lawrence, St. P. & Mo. P. R. Co. 3 Dill. 25. (d) Wilson V. Weber, 3 Bradw. 126. See State Railroad Tax Cases, 92 U. S. 676. (0) Connors v. Detroit, 41 MIch. 128. See Rio Grande R. Co. v. Scanlan, 44 Tex. 649.
In re 1.
CHARLES
B. &
JAMES C.
MoVAY, Bankrupts. 1882.)
(District Court, W. D. PennByZfJania.
BANKRUPTCY-DISTINCT DEBT-APPROPRIATION Oll'SECURITIES OIl' BANKRUPT.
The bankrupts, who were bankers, procured B. to become surety on their bond to a depositor, and for B.'s indemnity gave him certain of their bills receiva:ble. The next day they borrowed from B. marketable securities to raise money,and delivered to him securities owned by them. In both transactions B.'s assistance was gratuitous, and to aid the bankrupts in their business at a time of general t1nancial stringency. A set-off existed against one of the bills receivable, which the bankrupts had overlooked. Held, that in the absence of any express restriction as to their use, B. had the right, as against the assignee in bankruptcy, to appropriate the second lot of securities to reimburse himself from loss occasioned by the set-oft against the t1rst lot. 2. SAME-CONTEST BY ASSIGNEE. If the assignee desired to contest B. 's right to make such approptiation, hi,
proper course was to sue him, and he CQuid not have the controversy determined collaterally and in a summary way by objecting to B. 's proof of a distinct and independent debt.
In Bankruptcy. Sur issue, certified bv register into court for determiDlttion, upon application to re-examine claim proved by D. W. C. Bidwell. S. Schoye·r, Jr., for Bidwell. . John M. Kennedy, for assignee. ACHESON, D. J. The bankrupts were bankers in the city of Pittsburgh. On September 30, 1873, they gave a bond to the commissioners of Ellsworth avenue to secure them on a deposit of $25,668.47. Bidwell was surety on this bond, and for his indemnity the bankrupts on said date gave him certain of their bills receivable, aggregating $26,000. The next day (October 1) the bankrupts bor. rowed from Bidwell available securities amounting to $28,910, which they desired to use for the purpose of negotiating a loan in the east, and delivered to him local securities to the amount of $30,400. In both these transactions Bidwell acted without pecuniary consideration or recompense, and entirely from motives of friendship to the bankrupts. The bankrupts suspended payment and closed their and on the first of December following doors on November 7, filed their petition in bankruptcy. On November 28, 1873, they reo turned to Bidwell the securities they received from him, but left in his hands their own cecurities, and Bidwell continued to hold them until after the bankruptcy. On December 2, 1873, the Ellsworth avenue commissioners entered judgment on the bond against Bid. well, who paid them in discharge thereof $26,123.35. Owing to a