and to add to the taxes of the citizens.' So a tax-payer, affected by the illegal payment of claims against the county, may obtain an injunction to restrain the making of such payment. So, in Tash v. Adams,3 an injunction was granted on the application of twenty-four taxpayers, to restrain a town-treasurer from paying out money in pursuance of a vote to celebrate the surrender of Cornwallis. More especially as the application was made immediately after the vote was passed and before any money was expended, and as the money actually raised and expended for the celebration was furnished by subscription, upon condition that it should be refunded by the town, if the court should sanction its being drawn from the treasury.

§ 2. But on the other hand it is held, that courts of equity ought not, except upon the clearest grounds, to interfere with the speedy collection of public taxes. That a writ of injunction can only be issued, where the complaint makes out a case of equity jurisdiction; and in all cases involving simply the question of taxation, the issue is strictly one of common law, and courts of equity can take no cognizance thereof. That a party aggrieved by an illegal taxation has ample remedy at law, and need not in any case have recourse to a court of equity; and a court of equity has no authority to restrain by injunction the collection of such illegal tax. And that the unlawful collecting of a tax is a mere trespass, not to be enjoined, without allegation and proof of irreparable injury therefrom.' Thus, in Missouri, the Supreme Court will not interfere by injunction, to prevent a sale of personal property for non-payment of taxes. Nor to restrain a collector from selling the plaintiff's property to satisfy a school

tax assessed by the proper school district.

Nor, where land

was sold for taxes, and purchased by the city of St. Louis, and the city afterwards proposed to sell it, to restrain such sale on application of the original owners, on the ground that the original sale was irregular and void. Nor to restrain the collection of a tax on the ground that the rate of taxation is greater than it would have been, had not property liable to be taxed been improperly omitted from the valua tion; this fact not rendering the tax wholly void.3 More especially, equity will not enjoin a tax for mere errors, if the levy of it is attempted by an officer de facto under autho rity incident to his office; though it is otherwise, in case of levy by one without pretence of authority, or color of office to which such right is incident. Thus equity will not restrain the collection of a school tax, levied by officers de jure or de facto, on account of irregularities in their levy or collection. Nor for irregularities in the assessment. So it has been held that equity cannot enjoin the collection of a tax assessed in the ordinary way, and unaccompanied by circumstances of peculiar injury, even if the law authorizing the tax be unconstitutional. And, in a late case, an application to enjoin an unconstitutional assessment was refused, the court, as now advised, seeing no ground on which such assessment conflicts with the Constitution. So an injunction cannot be had to restrain the collection of a tax, upon the ground that the party has paid a previous illegal tax. the Supreme Court of New York has no jurisdiction to restrain, by injunction, the collection of taxes, on the ground that the returns are insufficient, and show no authority for the issuing of the warrants of collection. And, as already stated, the adequacy of the remedy at law is always held to

I Sayre v. Tompkins, 23 Mis. 443. 2 City, &c. v. Goode, 21 Mis. 216. Exchange, &c. v. Hines, 3 Ohio (N. S.), 1.

Munson v. Minor, 22 Ill. 594. 5 Merritt v. Farris, 22 Ill. 303. 6 Chicago, &c. v. Frary, 22 Ill. 34;

McBride v. Chicago, ib. 574.

8

10

So

7 McCoy v. Chilicothe, 3 Ham. 380. 8 Thompson v. The Treasurer, &c., 11 Ohio, St. 678.

9 Fremont v. Mariposa, 11 Cal. 361. 10 Van Rensselaer v. Kidd, 4 Barb. 17; Livingston v. Hollenbeck, 4 Barb. 9.

be ground for denying an injunction. As, to restrain a city corporation from enforcing assessment warrants against personal estate, for the expenses of a public improvement, although the assessment and warrant may be illegal and void. It is said in a late case, "We will not" (stay the collection of an illegal town or city tax) "as against a single tax payer, upon the mere ground that it is illegally assessed upon him, without special equities, and when the law affords a far better and more appropriate remedy, in view of his rights and necessities and those of the public, than any which we can administer." So where the common council of a city have authority by law to make an assessment, chancery will not restrain the collection of such assessment, under a warrant against the goods and chattels of the complainant, but will leave him to his remedy at law. Nor a distraint by a treasurer, against the money and property of an incorporated bank, upon the ground that the act imposing the tax is unconstitutional. If so, the treasurer is a trespasser, and is liable at law. Nor, in Rhode Island, the collection of a general, or of a sidewalk tax, of a town or city, on the mere ground that it has been improperly assessed against the complainant, and that his real estate has been levied upon, and is about to be sold for its satisfaction; the remedy at law being sufficiently adequate, and far more consonant with the scope and provisions of the tax act. More especially, equity will not interfere, if there is a statutory remedy." As, to enjoin a city from collecting a tax imposed by its street commissioners, for widening a street, the acts of Assembly and ordinances of the city having given the right of appeal to the city court, which remedy the complainants failed to take." And although the court will, by injunction, restrain the imposition of any illegal tax or burden on the tax-payers of a

1 Dodd v. Hartford, 25 Conn. 232. 2 Per Ames, C. J., Greene v. Mumford, 5 R. I. 478.

3 Williams v. Detroit, 2 Mich. 560. Mechanics', &c. v. Debolt, 1 Ohio, 591.

5

6 Greene v. Mumford; Simmons v. Same, 5 R. I. 472.

Hughes v. Kline, 30 Penn. 227. 7 Methodist, &c. v. The Mayor, &c., 2 Md. Ch. Decis. 78.

city, upon the complaint of any tax-payer, who complains both in his own behalf and in behalf of those who are similarly interested with himself, or on the complaint of any corporator of the city having an interest in the corporate property, such complaint showing an illegal application of any part of the corporate property; yet in such case, in order to a complete determination of all the rights affected by the suit, the plaintiff must aver that he files his complaint as well in behalf of those similarly interested, as in his own.1 So where a bill in equity was brought by the owner of lots, situated on the plank-road of an incorporated company, to restrain the city government from collecting an assessment for paving the road; held, the company not being a party, the court would not consider whether its rights were infringed, and the complainant alone had no case.2

I Wood v. Draper, 24 Barb. 187.

2 Bagg v. Detroit, 5 Mich. 336.

CH. XXV.] CONSTITUTIONAL OR STATUTORY PRIVILEGE. 389

CHAPTER XXV.

CONSTITUTIONAL OR STATUTORY PRIVILEGE—COPYRIGHTS; PATENTS; TRADE-MARKS, ETC.

1. Constitutional right.

1 a. Statutory right.

2. Copyrights and patents. 5. Copyrights.

17. Manuscripts.

20. False advertisement.

21. Patents.

40. Trade-marks.

51. Other privileges.

§ 1. A CONSTITUTIONAL privilege may be protected by injunction. (See Corporation, Franchise, Bridge.) Thus, where a county is established by the legislature, in violation of the Constitution, although a writ of quo warranto is proper, equity will interfere, by injunction, to stop an organization of the county, on the principle of quia timet, to prevent great and irreparable injury; and any person aggrieved may apply for the remedy.'

1a. An injunction will be granted, to secure to a party the enjoyment of a statute privilege, of which he is in actual possession, when the legal title is settled. Or against adverse claims, until their validity has been settled by a trial at law. It is said, "The equity jurisdiction in such a case is extremely benign and salutary. Without it, the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion. If such a contrivance as this case presents is to be tolerated, all our statute privileges of the like kind, on which millions have been expended, would be rendered. of little value, and the moneys have been laid out in vain." Thus, upon a bill by the plaintiff, as lessee of a piece of 1 Bradley v. Commissioners, 2 3 Livingston v. Van Ingen, 9 John. Humph. 428. 507.

611.

4

Croton, &c. v. Ryder, 1 John. Ch.

Croton, &c. v. Ryder, 1 John. Ch.

615.