The weekly clarion., 1871-05-18
vol. XXXIV--NQ. %.

concluded: aWe think it stands upon
the general principles that govern the court
with respect 20 which no other adequate
remedy can be extended" In response TO
the suggestion made az the argument, THAT
| the revenue might be interfered with.
| the Court say such considerations fur
nish no reason why the court should not
/ interpose. The application Is addressed TO
its sound discretion, and there Is no reason
10 apprehend thar injunction win be allowed
on trivial grounds. The case OF Osborne
VS.. Bank of u. States, Whekt, is q case di-
rectly in point Br eHjoining taxes &C.. t5e.
1 In the late case of Culberts0n vs.. Cincinnati.
| 16 Ohio Rep. 57. The Injunction was sus-
tsined, because the taxes were not assessed
in accordance with city ordinances
The courts in Wisconsin hold that chan
cery will not enioin a tax legal and just for
the errors and Irregularities of the minIste-
/ rial officers. Such was IL Wisconsin Rep.
| 497, and cases there cited. In 20 Conn. Rep.
! 23S, the injunction was denied because the
warrant for collection was confined TO per-
sonul property. but the intimatlon is quite
4 distinct. that it would be otherwise if the
4 taxes affected real estate. InReed the au-
thOrities, so far as / have examined them,
are quite uniform. that taxes may be en-
/ joined which bind real estate, for thereby a
cloud is incep5ed TO be cast ON thafitle.
The case in 30 Penn. Rep. 227, a&Fees with
| the others in that. The injunction was re-
/ fused, because the party or his privy. had
already tried the question by appeal TO the
| Court of Common Pleas. whose decision
was final.
/ The Supreme Court of Pennsylvania in a
| case quoted, treat the assessment aud coli
| lection of taxes as quasi judicial proceed
| ing.
| In Griffin vs.. Nixon, 35 Miss. Rep. 424, it
| is expressly declared that assessment and
| collection by sale is both judicial and eXecu-
| tive ministerial, that the machinery of
assessing and making out the lists of taxes,
are essentially judicial, and in nature of
! judgment, and if not SO. there would be no
power of sale conferred on the officer.-
| Therefore the court held the act of 1850,
which forfeited lands To the , ate for.non-
payment Of taxes. as unconstitutional and
| void, because, it was depriving a party OF
| private property without due course of
| law" On the ground thens of enjoinin g
| proceedings ut law. in order that the plain
| tiff may be let in TO make defence, which
he has had no opportunity to make.
the party would staEd upon a well
established equitable principle.
Perhaps the most potent reason for the
| injunction in the Wheeling Bridge case,
| I3 How. :. G.. Rep. 657, was that the wrong
complained of was continuous, and would
! be ever recurring; so that suits for redress
at law would be very numerous. DO not
the revenue laws fall within the same rea-
SON? Generally the taxes are imposed
without limit to time. If Illegal and
wrong, it partakes of perpetuity; and the
| injury does not terminate with single col
| lection; but may continue from year to
| year. 1t was this view of the subject which
weighed so heavily with Mr.. Justice Nc
Lain in Wood VS.. Dodge. McLain Rep.
l4G. 1t is very worthy of observation that
this decision was made by that eminent
jud re, after the cases in the Supreme Court
of the United States quoted by the majority
of the court in their opinion, and in which
he took part. He places the equity upon
two grounds. lst, that the collection of the
tax was to be 'danadUy repeated.' 2nd, the
remedy at law to recover the money back is
not adequate. 1t is subject to delay, and
the contingent solvency of tn )se to whom it
may be paid. A continued repetition of
wrongful act under color ofauthority, is of
itself ground for this preventive remedy.
1t prevents the harrassment and expense of
multiplicity of suits. In Payne VS..
Wright, and Ird. and Belf. Il. II. CO.. Nc
Lain, Rep. the equity of the bill was
''that an illegal tax had been imposed in
furious to the stockholders. and on this
ground they ask relief. In WOolsey vs..
Dodge. Supra, speaking of this matter of
the Continuousness in reference 20 its un-
lawful assessment and collection. the same
learned Judge used this emphatic language:
"And this trespass is to be repeated annual
ly? What spectacle tor law-abiding
people? What stronger grouad than this for
an Injunction Y'
1t has been the uniform practice of the
Legislature to impose taxes without limit
as TO time. Taking the chapter of the Re
Vised Code as illustrating the fact the 10th
Art. or Sec. 3, p. a, is as follows: "For
the support of the Government of this State
the following taxes shall be assessed and
collected. l6 cents on the advalOrum valne
of all lands"-aud so on with all the SUBJ
jects of taxation. The tax on land is
charge superior to all other@Sliens. Taxes
unpaid on the lst April shall be enforced by
distress and sale. Subsequent revenue
laws passed from time to time are but
amendatory of this, and all of them contain
the feature that the tax imposed continues
from year to year; and does not expire at a
time limited.
The act of Dec. s. 1865, under which most
of the cases pending in this court arose has
distinctly this characteristic. The first
section is-'the fcHowing taxes shall be
assessed and collected to-wit: 10 cents on
each 500 value of real estate, then follows
the rate imposed on the other subjects. The
22d sec, on each and every license granted to
retail vinous and spurious liquors. etc" nam-
ing the rate. This tax and all others are
due 1st April, and collected by distress and
sale as provided IN the code. They are con-
tinuous. OF this character also is the last
revenue act of July, 1870 So that this per-
petuIty of taxes from year to year Is a
liked feature OF our financial system. and
brings the case within the rule laid down
in the Wheeling Bridge Casa familiar
and undIsputed ground for injunction.
Thompson vs. Pacific Railroad Co. 9.SVa al
lace 5Sl. was the last case in the Supreme
Court OF the United States on this subject.
The sole question made by the bill was
whether certain taxes imposed by the State
of Kansas on the railroad were legal. A
preliminary Injunction had been granted.
The case was argued by able counsel on both
sides; and it was not questioned that
chancery was the proper forum.
This review might be extended to much
greater length. This much will suffice to
show that the jurisdiction, which is now
for the first time to be denied. has been ex-
erted in many of the States and in the courts
of the United States, exerted too after the
fullest argument and maturest considera-
tion; eXerted not by virtue of statutes, but
on the ordinary principles which govern the
court | have not made the examination for
the purpose OF showing, that upon the
might of authority we have been right in
this State. l take leave of the subject, how
ever, impressed with the conviction, that it
is the most beneficial, adequate. and expe-
ditiOus mode of litigating the subject. All
the cases concur that if the collector en-
forces the collection, when the taxpayer is
not bound by law to pay, he is personally
liable in trespaSS. or for money had and re-
ceived. The question of ' right" can hard
lv be tried at law until he has collected in
half, or all the taxes. He subjects himself
to as many suits as he has made collections.
1t is no defence that he has paid the money
over to the county or the State The coun-
ty, or State ought to hold him harmless.
But there is no legal mode Of enforcing repay
nlent from the State.
With all these embarraSSments. anc null
tiplicity OF suits, to my mind it seems clear,
that the complete mode is to test the right
in advance by bill in chancery.
1t is doubtless for some or all of these rea-
sons. that, with the unbroken appreciation
of the bar, the bench, and the legislature,
the Chancery Court has from the beginning
been resorted to for relief.
Supported as the jurisdiction has been.by
so many and cogeut reasons. such conclu-
sive authority here, and sustained by so
much elsewhere. whatever my own opinion
might be, if it were q new and original
question, / should not feel myself at liberty
10 entertain an individual opinioTf; but
would content myself with accepting the