Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-02-29
MISSISSIPPI LEvEE BONDS.
The Case Of Ira g.. Holloway and 0thsrs
Against ths Lev a collector
and LoVes cOnImarsa0Rers of
District No. One.
in che Chaueery C0urt Of Ne
Soto County, Mississippi, to DIS
solve an Intuncfion Restrain
ing Defendants.


meas, Settling aside the IHtune-
ten nj Awarding Costs 60
Defendants.
We present below the full text Of the
opinion delivered yesterday by JudSeSim-
mons of the Desoto county Mississippi.
chsncery court, in the case Of Ira G.. Hol-
loway ct al, vs. J. DAILY ,levee tax collector,
and the levee commissioners Of district
], In 3 motion to dissolve an in
junction restraining defendants from the
performance of the duties assigned them
as public officers. This opinion Ia valu-
able so lar az 1t goes, and If not appealed
from viii be final, serving as a precedent
throughout the State. Judge Simmons
said;
The bill, after sstting forth tie act of
tbs legislature creating the board of levee
commissioners (approved March II, 1871
alleges, first, the i~ilsgalfty Of the organic
alton of b board in the election IF T. s.
Tate and A. s. Dowd 81 members shersof,
and the election Of the latter az pEssidsnt
and A. K Howe az secretary and lrsasur-
or, the last " having been mer2bers of
the legislature OF 1870-7l, and she first
laborinR under civil dlsabilitisS which
have not been removed. This TEL then
alleges
ACKNOWLEDGEMENTS OF tbs ACT
fixing the values of the lands within the
district subject to MISUNDERSTANDING
referring also to the fact that no other
species Of property is taxed. Itthsn alleges
that the lands of co~mplainanta are about
to be sold for said taxes, which sale they
believe would be void, but would cast
clouds upon thsir titles, and several of
them having been compelled or oSpeeting
that they viii be compelled to Llortgsge
or sell some portions Of their lands to
meet current expenses, such clouds would
prevent theae negotiations or force the
foreclosure Of mortgages, aud thRs q
i~rreparable damage snd ruin.
They allege further that
THE COLLECTION OF THE FAX
would involve q multiplicity of suits to
which neither the said Daily (the collec.
tori nor the sureties upon his official
bond would be able to respond pecuuizri-
ly," and that this would naeessitate
numerous suits sgaiust the Purchasers
under the sales msde by the tax 6llecsOrs.
The bill slsO presents the continuance of
the tax annually for twelve yesrs as an
additional ground for the interference of
q court Of equity.
The Injunction was granted, spd the de-
PENDANTS nov its dissolution Supon the
grounds-hrst, want of equity In the bill;
second, want of Jurisdiction in bhe court;
and these are the only questionsspresented
or argued. To arrive 81
A JUST CoNCLUsIoN,i
however, 1t is necessary that l Should ex-
anime the bill carefully and snslyzs it
patiently, and in doing this, 1 most cheer
fully acknowledge the sssistsSos 1 have
received from the cOgent ana Interesting
arguments of the able counsee On both
sides.
Ast to the legality or iIlegality of the or
ganizstion Of the board OF levee commits
~sionsrs, even If this were a question for
adjudication in this court, I am strongly
inclined 20 think that the whole matter is
fully covered by section three hundred
and seventeen revised code, 1871, which
declares that "the official scts OF any per-
son in possession ofsny public cffics, and
exercising the functions thereof, shall b.
valid and binding as
LAWFUL OFFICIAL ACTS
in regard to all persons interested or sf-
fscted thereby, whether such person be
lawfully entitled to hold such office CT
not, and whether Huch person shall be
lawfully qualified or not" etc, etc. This
point, however, aad those involving the
constitutionality CIR unconstitutionslity
Of the ses imposing the tax or fixing the
value Of lands, 1 am satisfied, cannot bs
s6iudics5sd here upon q question of ju-
AAS1A@A4AAu w. 4 1lAA0 2 ~ 0AAA0L "a G1AA
of these events, it is gensrslly conceded
that q court of law is the proper and only
forum In which these questions can be
tested, Mccoy VS. Chiliicothe, 3 Ham
mOnd, $40, Ottawa Y Walker, 81 ILL.,, $40,
Bows VS. Chicago, IL Wall, 1Os, billiard on
.IqiunctiOns, 461, I hill, n, Y, 1876, 4 Duer,
n. Y, 1872 land q number of other su5hor-
ities) It is equally well settled that
when it is necessary to prevent irrepsra-
amHmFu mr. WrnnU Or "A mnnltfnlAnrFU nf
suits, or where real estate is involved, en-
clouding Of title, equity may interfere
and exercise its
RESTRAINING POWER,
and Vice>Chsncslor Wigrsm went so far
IS to declare that The Jurisdiction of this
court to grant iDjunctioBs in cases of pure
.rsspsss is comparatively of modern es-
adjustment; bat it is now clearly settled,
hat in cases of trespsss under color OF
title, where the mischief is irreparsble.
.he jurisdiction of the court exists; and I
incline strongly to the opinion. thst
whether the mischief be i~rrepRrsble OF
not, this court ought, by decree, at least,
I not upon motion, TO ex end and apply
he jurisdiction Of preventive justice to
III cases Of treRpRss in which, by analogy
% cases Of specific performance, damages
would be an inadequate and uncertain
'emedy, and
PROTECTION OF THE RIGHT IN ISSUE
ne only mode Of doing complete Justice
the parties Z" DreWry on in
unctions, Is to page Y
1 have examined carefully the case of
V. Harris, 43 Miss. rs, and while
he opinion OF the court, as deliye cred by
)hief-J Justice Peyton and Mr.. Justice Tar
must b3 the controlling rule, 1 have
with equal care the dissenting
nF NJ VnarTna GFrnr1f1 aw1 ka-o /
nclude3 in my tnves LEGATIONS sll the cases
tied by the latter, w az least Of which
very nigh akin In character TO the
to wits Williams Y. CammRck,
z Miss 223, and AlcOrn v. Hamer, 38
Hiss, 747. In none Of the cases cited by
lis honor, however, was the question Of
raised, and it has been held
q many instances that, where that point
vas not raised, and the
CASE SUBMITTED WITHOUT DISSENT,
7 ave where objection was not made till
hearing, the court would consider the
question Of Jurisdiction as being waived
irsndin ". LIE Roy, 2 Paige, 500; Bank Of
Jtics V City Of Utica, 4 Paige, 899; and it
s within the Judicial knowledge of every
curt that parties will often waive various
Iuestions-thst of Jurisdiction among
Ithers-and many irregularities, in
rider to ecure q speedy sdjudica-
ion upon the matters in litigation.
n the case Of Osborn vs.. the Bank Of
be United States, 9 Wheaton, 73S, the
Jurisdiction of q u of chsncery is sus-
aimed upon the ground of q predeter-
snd ayOwed purpose upon the
art Of the legislature of Ohio to expel
be bank from the State and destroy Its
rsnchise and chartered rights which had
cen conferred and secured by act of
Ongress; upon the further ground that
pecifc property, such ss negotiable
aDer and bank notes, would be trans
to other parties, and thus lost to
bank forever because their specific re-
OVsry would be impossible; in other
'ords, that irreparable damage and ruin
of the tax. In b case of Thompson .
!. the Pacific Railroad company, 8 Wall,
b QUESTION IF JURISDICTION
as not raised, while in the later csss of
oWs VS., Chicago, IL Wall, los, the doc
inc o fcourts Of equity is laid down in
10 following language: SIT must Rp-
that the Enforcement of the tax !
ould lead to q multiplicity of suits, or
'oduce irrepsrable injury, or where the
,operty is real estate, throw a cloud
pom the title Of b complainant before
e aid Of 3 court OF equity can be in
In b case of the Bank of z
tica VS.. the City Of Utica, which involved I
10 question of taxation, Chancellor =
'snWorth held that San adequate and .
ore certain remedy was afforded st law =
an action of trespsss, should the d. z
adsnt attempt to inforce the payment =
the tax by s sale Of the property Of the Z
NIX; /" but add: "This court, however. I
III not refuse to take jurisdiction of q z
Sc merely on the ground that the COM Z
ainant hRs q perfect y
REMEDY AT LAW, \
the parties have submitted themselves G
the Jurisdiction Of the chancellor with {,
t objection" In the investigation of D
3 questions presented In this cause, 1 a
not only examined the authorities v