The weekly clarion., 1871-05-18
J. J. CoULsON,
J. J. COULSON,
VS.. I
Sd. HARRIS, Sheriff and Tax Collector.l
DIssESTISG OPINION OF MR.. JUSTICE
sIMRALL.

/ DISSENTING OPINION OF MR.. JUSTICE
| sLMRALL.
I am constrained TO dissent from the views
announced by the majority of the Court, as
TO the jurisdiction OF the Chaneery Oouft 70
| entertain bill OF Injunction. plant my
self on hat has been, as understand the
! Uniform, unbroken practice IN TINS state as
far back az our judicial records extend;
unquestioned and unchanged until now,
1 the habit OF the bar, (perhaps from the nrst
/ orpauization of the State goternment,1 70
4 hiring these suits in equity. The useage OF
{ the Judges, circuit and appellate, and of the
| chancellors, TO grant the injunction ana 70
I adiudicate the cases upon their merits. ls 10
| nv mind as conclusive IN favor Of the juris-
| dictiop. as a direct adjudication of the Su-
I nreme Court. | am nos able TO conceive, or
| state clearer evidence OF the right OF
equity cOgniZance over particular subject,
I than that the bar have been accustomed to
! bring that subject before the court. and
the court time and again has adJudicated
I upon il. Each additional decision, II fresh
assertion of the power of the court over the
subject and a cumulative assurance 10 suit
| ors, with confidence to bring their plants
/ before that tribunal
- tt Is no answer TO say that the jurisdic-
/ tional question has been now raised for the
| first time The chancery bar of this State
has been eminent for thirty years and more,
for talent and learning; and IL is not TO be
| suDDosed that an usurpatiOn as this. is now
claimed 10 be should or could have crept in
| unnoticed and unawares- Besides every
motion to dissolve, and demurrer, to the bill
bring directly to the judicial mind,
| the Question of the equitable right TO inter-
| pose. Hardly tax case can be found, eth
| er in the courts of original or appellate ju-
risdiction, where this point was not raised
in the record.
! The community look TO this court for the
true and permanent expositions of the law.
/ Ii we vacillate. if we Overturn the usages of
practice. If we unsettle what the bar and
| the public have been induced TO believe was
| assured and settled, we extend an invitation
/ to suitors % embark in speculative adven-
1 turers and to count the chances OF successful
! results. Judges should ever remember,
| that if they shall expect their decisions to
/ be accepted as declaratOry of the law, they
should not, except for the most mighty and
| commanding reasons. depart from what has
! been handed down to them in the practice
| of their predecessors. 1t Is but little less
! important, that the utterances this court,
! as the ultimate eXpOsitOr of the law, should
he uniform and consistent, than that they
should be right. Perhaps nothing so tends
! to shake public confidence, to impair the
/ usefulness of legal tribunals. and to bring
/ them into disrepute, as the lmputatIon OF
vacillatiou in their decisions. 1t gives force
and point to the sarcasm about their ''un-
| certainty.r Nor is the reason or necessity
of departing from the old and accustomed
\ paths realized. Ii is simply question.
/ whether a "ri0ht'' shall be litgated in one
Z
serious. or otherwise can result from ad-
| herring to the old practice.
! proceed now to refer to the cases THAT
| have been brought to this court, or rather
some of them, TO show that the jurisdiction
! has been so long, aud SO often eXerted, that
! it ough ht not now to be considered open to.
cavil or doubt. Bank of United States VS.
| State of Mississippi-et al u ). NJ. 467 lin
! lS49) was bill eujoining taxes; such also
was Body VS.. Fugua ct al, a Miss Rep. 49S
! DS52)-Alcorn VS. Hamer, Is Miss. Rep. 745.
| (lS60.) There were other cases unreported.
! Newman. sheriff and taX-coliector, VS.. Rob
/ ertsOn, (three cases. Newman VS.. Peale,
| 1.-TWO cases) Also, DOnnell vs.. Bailey, "A
| Miss. Rep. 3S7, QS52) In Anderson VS..
! Slate, in referring to the point under dis
cussion, the Chapter L. quotes the case OF
/ Osborne VS.. Bank, 8 Wheat, 73S, rs an auth
ority for the jurisdiction. O'Donnel VS..
! Bailey (Seppra) was an Injunction against
| threatened sale for taxes.
An analysis of these numerous cases will
show, that in some of them the taxes were
chargeable on lands, in others on personal
effects. In some of them imposed for local
objects, by local authority ; in some of them
the collector was actually proceeding To
enforce payment by sale; in Others he was
| about to so proceed or threatened to do so.
| Some of these cases were brought into tns
court on demurrer TO the bill; others or
motion to dissolve the Injunction; others
again from the hearing final. Some con-
tested the tax for the want of authority to
impose ana eOlicCC others TOT an lDlDFOD-
er assessment. If the records of the Superb
or Court OF Chancery, of the several vice
Chaneery Courts. and the Chancery Courts
of the various counties were searched for
the last thirty years, the assertion is ven-
tured that "A vast multitude OF these iniunc-
ton suits would be found, where the right
of parties was litigated and decided. Two
cases as late as 1S69-Read VS.. Beal, sheriff
and tax collector, and Lick vs.. State repOr
ted in II Miss. Reports, were most elaborate
Z L..
delivered by the court and yet not a doubt
was hinted. that the bill of Injunction was
not the appropriate remedy. l am conf
dent, therefore, in the opinion that the court
transcends its official duty, in the presence
of this long practice. this great weight of
authority, in n0lc entertaining the question
of jurisdiction, and taking by surprise a
great number of suitors who have brought
their cases here through the Chancery
Courts. There are perhaps now pending on
the docket of this court fifteen or twenty
tax cases from every quarter of the State.
every one of which were brought in the
Chancery Court.
The legislative opinion concurs with the
professional and judicial on this subject.
Hence we find the legislature as late as the
9th of July last (lS70, in the revenue bill,
regulating, in some particulars, suits enjoin-
ing taxes. Sec. D. page 81, of acts-declares
'tAll causes which may hereafter be COM
menced, in which il is sought to delay or
enjOin the collection of taxes. imposed by
competent authority shall be regarded as
preference cases, and upon the dissolution of
the Injunction ten per cent damages, an
amount of taxes enioined, shall be imposed.
Suit by Injunction is here distinctly recog-
nized as a known, usual and accustomed
remedy. The act proposes to guard the re-
venue from delay in collection by the inter-
position of an untenable or frivolous in
junction. under penalty. IL is declaratory
hy the law making department of the gov
ernment, that this form of remedy does ex-
ist. and arms the court with additional
power to protect the public interest.
/ should be the better reconciled to the
conclusion attained by the majority of the
court, if the Jurisdiction, so long exerted and
reeo2ized here, was purely exceptional, and
had no support elsewhere.
Mr.. Eden after enumerating a great num-
Der of circumstances, in which the injunC-
ton is proper, adds: at would be difficult
to enumerate them all, for in the endless
variety of cases. in which plaintiff is en-
titled to relief if that act consists in restrain
ing the commission OF. or continuance of
some act of the defendant, the court admin
isters it by means of the writ of injunction"
Vanover ct al VS.. Justices of Inferior Courts
was the Injunction of a tax for public build
ings imposed by the inferior court of Terrell
county, Georgia in response TO the objection
made to the jurisdiction Lumkin, L for the
court, said: I'VE approve the remedy resort
ed 10 in this case, as not only more complete
than any other, but the only one which meets
the eXigency of the case. - Geo. Rep. 351.
The question was made in Miller VS. German
3S Penn. Rep. 3l3, in reasoning the court in
innate that the enforcement of taxes is by
quasi Judicial means and observe .'that in
| junction to restrain proceedings at law, is
one of the most common heads of equity ju-
risdiction. If the remedy at law is adequate.
| injunction will not be granted. lit may be
said damages may be recovered against the
Supervisor, but it win only be after pay
ment of the tax, and why would equity per-
NIT plain breach of statute duty, in order
that it might be redressed at law"
One great purpose of equity jurisdiction
fperbaps the most benefieenD is to pre-