Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1900-02-15

~ Following is the lull teXG OF Cnan-
cellor Nicholson's decision OF the case
involving the collection of taxes under
the Adams law
The Equitable Guarantee and Trust
Company, corporation of the state OF |
Delaware, VS.. John p. Donahoe, Col
lector of Taxes for the Northern dis |
triot of Wilmington.
Court of Chancery of Delaware. New
Castle County. February Z, 1900.
Willard Salisbury, Jr., and Anthony
Higgins, solicitors for complainant
John H. Rodney, Peter L. Cooper,
DR., and Henry G, Conrad, solicitors
for respondent.
NICHOLSON, Chancellor:
The object of the bill filed in this
cause is to restrain the respondent,
\ tax collector of the State Of Delaware,
for the Northern district of Winning
ton, from enforcing the collection from
the complainant, either in its in
dividual or fiduciary capacity, of any
tax laid and apportioned under tho
authority of ''chapter %, Vol. &SI., of
the Laws of Delaware, entitled
CHAPTER ISL. VOL XXX, as amended
An Act to Equalize Taxation for
state anu COunUy Gut pUSeS.
The bill was filed in June, 1899, and
in July the respondent filed his de-
murrer. No argument has been had
upon the demurrer, but by agreement
OF counsel on both sides, the question
Of the jurisdiction of this court to hear
and determine the cause was argued
upon riution to dismiss the bill for
want of jurisdiction.
The question of jurisdiction may of
course BIZ considered by the court at
any time, whether counsel raise it or
not, but the consent of counsel to
present it in this manner disposes of
any objection that might be raised as
to the regularity of the motion or to
the course of pleading adopted by re-
spondent.
The tax sought to be enioined is in
part a State tax, and it is the first in
stance in this State of an application
to the Court OF Chancery for an in
junction to restrain the collection of a
Stats tax, although there is one case
in our reports where bill was tiled to
restrain the collection of a county tan.
That was the case of the Philadelphia,
Wilmington q Baltimore Railroad Co.
VS.. Patrick Neary, collector of county
taxes for the Northern or Second dis.
trict of Wilmington hundred, New
Castle county, IN which it was sought
to obtain an injunction to restrain the
collection of county tax laid and
apportioned by the Levy Court of New
Castle county upon the assessment o.
the roadway and certain other rea
estate of the complainant, the r., Is
u B. Railroad Co.
In that case, upon the question o
jurisdiction, the late Chancellor Sauls
bury used the following language
Before the counsel in the cause FRO
ceeded in their Argument, | intimatet
to them that should dissolve the pro
liminary injunction heretofore awarded
and dismiss the bill, unless the cas-
was brought under some recognizes
head of equity iurisdiction-as wher
there would otherwise be cloud upoi
the title, or multiplicity of suits, O
any irreparable injury.
1.-THE ordinary remedies in the cas-
of taxes illegally assessed and leVie
are an action of law after conpulsor
payment, either of trespass against til
collecting officer, or of assumpsi
against such officer or the publ
corporation to which the amount ha
been paid. These remedies, says Pierre
on Railroads, 4SS, are ordinarily ample
and do not involve the public en-
barrassments incident to the intel
vention of equity in such case, equit
will not therefore enjoin the collectio
OF q tax alleged to be illegal, whel
there is an adequate remedy at Law
1t will not interfere by its PREVENT,
process, on account of mere irreg,
iarity, hardship and injustice in I'll
assessment, or errors or excess in yalu
ton.
''It would he impossible, il l we
to attempt it, to reconcile the vario,
and conflicting decisions which ha'
been made by the courts in Il
different States, upon the subject
equitable Jurisdiction in such case
This want. of uniformity of decision
this country has arisen from the wa
of distinct equitable tribunals to al
Indicate such questions, and from Il
blending of legal ard equitable powe
in the same tribunals.
''The principles l have announc
upon this subject will govern 4
action whenever similar questions shi
arise before me.
#5 "The solicitors for the parties I
spectively, have filed among the papt
in the cause an agreement which is
tho following words: 1t is agreed Al
understood that there are divers 9th
taxes assessed against the corporatio
the complainant, ant other corpol
lions owning like property in I
county of New Castle, in the hands
several other collectors in the 50
county of New Castle for coilectio
and that in order to avoid u mul
"A plioity Of suits, and prevent unreasc
able litigation, it has been agreed I'll
these facts are to be taken to be
i mitted in this case with the like eff
as II the same mad been stated in
bill Of complainant and admitted
44 the answer. And it is also agreed a
understood and so stipulated that t
cause shall be considered Just as thou
all the parties who are in like case
IA complainant and defendant had b.
PARTIES thereto.
Then, after disposing of an argum
that the tax would affect commerce
tween the States, the learned CHAM
Tor continued.
1.-THE agreement referred to by co
sci having been filed, and having
that reason taken jurisdiction of
cause, | shall, for the reasons bel
stated, Decree" &c.
The general principle announced
this case by Chancellor Salisbury, I
equity will not enjoin tax ALLEGED
be illegal when there is an adept
remedy at law, is too fundamental
elementary to be questioned sci ioi
In this State. Counsel for the c
plainant, however, insists that
Court of Chapcery should assume ju
5 = diction in this cause ito rrever
la.. L..