nancy. The argument runs thus: Under the act of congress, (Rev. St. § 5219,) only the shares and real estate of national banks are taxable under state laws, and the shares are not taxable at any higher rate than other moneyed capital of individuals. In Pennsylvania the moneyed capital of individuals is exempt from all local taxation, and was so exempt prior to the passage of the acts of June 7, 1879, and June 10, 1881. At the time of the passage of the latter act the only property of national banks taxable for local purposes was their real estate, and therefore the restricting words in the third section of the act of June 10, 1881, excepted from the operation of the act the only property of national banks to which the exemption could extend, and they thus constitute a saving clause repugnant to the purview of the act, and void. But the argument is not satisfactory, and, even if the premises were conceded, the conclusion sought to be deduced could not be accepted; for it was held in Hepburn v. The School Directors, 23 Wall. 480, that shares in national banks, in Pennsylvania, may be valued for taxation at an amount above their par value. The act of June 10, 1881, therefore, does unquestionably leave something for its exemption clause to act on, and the argument based upon a supposed répugnancy plainly fails.

It will be perceived that neither the act of June 7, 1879, nor that of June 10, 1881, peremptorily imposes a tax of six-tenths of 1 per centum upon the par value of the shares of stock. Under each of these acts the payment of that tax is optional with the banks. The former act gave the banks the election to pay the specified tax in commutation for all other taxes under the laws of the commonwealth; the latter act gives the banks the like option in commutation for all taxes, except that on real estate. The only difference is in the extent of the exemption. It is not pretended that the method of taxation contemplated by this legislation is open to constitutional objections, or contravenes the provisions of the national bank act. Indeed, the plaintiff is satisfied with and seeks the benefit of the act of 1879. But why could not the legislature modify that act by the amendments incorporated in the act of June 10, 1881? Clearly it was competent for the legislature to do so.

I am of opinion that none of the objections which the plaintiff has raised against the validity of the local taxation of its real estate for the year 1882, are tenable.

At the hearing of this case the validity of the ordinance of the city of Titusville, in so far as it attempts to impose a tax license upon national banks doing business in that city, was not much discussed;

and at present I shall simply indicate what my impressions are on that subject. It seems to me the ordinance undertakes to tax the operations of national banks, and is a direct obstruction to the exercise of their corporate powers. I do not see that this license tax is distinguishable from the business tax involved in the case of the city of Pittsburgh v. First Nat. Bank of Pittsburgh, 55 Pa. St. 45, which the supreme court of Pennsylvania, following the authoritative cases of McCulloch v. State, 4 Wheat. 316, and Osborn v. U. S. Bank, 9 Wheat. 738, adjudged to be unconstitutional.

But it does not follow that because the tax is illegal, the plaintiff is entitled to an injunction to restrain the collection thereof; Dows v. Chicago, 11 Wall. 108; Hannewinkle v. Georgetown, 15 Wall. 547; State Railroad Tax Case, 92 U. S. 575; and I am of opinion that the bill does not bring the plaintiff's case within any of the recognized foundations of equitable jurisdiction. Id. The ordinance imposing the tax does not undertake to make it a lien, and it is not enforceable by any summary process. The ordinance gives an action of debt for its collection, and it is not otherwise collectible. To such action the bank can set up its defense, and therefore needs not equitable relief. What has been said covers all the questions thus far raised, and it is only necessary to add that the motion for a preliminary injunction must be denied; and it is so ordered.

NOTE.

TAXATION ON NATIONAL BANK SHARES. A suit may be maintained by a national bank, on behalf of its stockholders, to enjoin state officers from the collection of a state tax on the shares of the bank, on the ground of an illegal assessment arising from the failure to deduct from the valuation the debts owed by the shareholders,(a) although payable in the first instance by such shareholder, if a multiplicity of suits can be thereby avoided, or injury to its business or credit is anticipated. (b) A bill to restrain the collection of a state tax on the shares of national banks must show a statute discriminating against them, or that they are rated higher in proportion to actual valuation than other moneyed corporations. (c) A shareholder who has made affidavit and demand for deduction of the debts owed by him from the valuation of his shares, as required by law, may bring suit to enjoin the collection of such tax.(d) And where it is shown that the affidavit and demand would

(a) Nat. Alb. Exch. Bank v. Hills, 5 Fed. Rep. 249; Hills v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93; Cummings v. Nat. Bank, 101 U. S. 153; Pelton v. Nat. Bank, Id 143.

(b) City Nat. Bank v. Paducah, 5 Cent. Law J. 347. See Nat. Alb. Exch. Bank v. Hills, 5 Fed. Rep. 248; but see, also, S. C. reversed, 12 Fed. Rep. 93.

v.13,no.9-28

(c) German Nat. Bank v. Kimball, 103 U. S. 732; Hills v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93; and see Sup'rs of Albany v. Stanley, 12 Fed. Rep. 82, and note.

(d) Hills v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93.

have been unavailing, they may show, in an action by the bank brought on their behalf, the deductions to which they were entitled. (e) The taxation by a state of the capital stock of a national bank invested in United States securities will be restrained, (ƒ) but injunction will not lie to restrain the collection of a tax illegally assessed by the municipal authorities upon the shares of a national bank in gross, instead of against the individual shareholders, though such municipal corporation be insolvent, as there are ample remedies at law. (g) Nor will it restrain the collection where the shares are taxable and no excessive valuation is complained of, although the officers arrived at a correct result by an erroneous method. (h)

RESTRAINING COLLECTION OF TAX. A court of equity will not restrain the collection of a tax on the mere allegation that it is illegal or void.(i) There must be some additional special circumstances, (j) under some recognized head of equity jurisdiction;(k) as that its enforcement would lead to a multiplicty of suits;(7) or produce irreparable injury;(m) or irremediable oppression;* or, where it is real estate, that it would create a lien, or cast a cloud on the title;(n) or for fraud.(0) Where there was no allegation of damage sustained, or that the sale of the land levied on would cloud the title, or work irreparable mischief, it was held that the court of equity had no jurisdiction to grant relief; that the remedy should be sought at law, where power to grant relief was full, adequate, and complete.(p)

ON GROUND OF MULTIPLICITY OF SUITS. The equity powers of the court cannot be invoked to prevent an apprehended injury save where its exercise is necessary to prevent a multiplicity of suits.(2) Where the rights of a large

(e) Hills v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93. See Sup'rs of Albany v. Stanley, 12 Fed. Rep. 82, and cases cited.

(f) First Nat. Bank v. Douglass Co. 3 Dill. 298.

(g) Nat. Com. Bank v. Mobile, 62 Ala. 284. (h) St. L. Nat. Bank v. Papin, 23 Int. Rev. Rec. 343.

(1) Oliver v. Memphis, etc., R. Co. 30 Ark. 128; Armstrong v. Co. Ct. of Taylor Co. 15 W. Va. 190; Douglass v. Harrisville, 9 W. Va. 162; Woodward v. Ellsworth, 4 Col. 580; Clarke v. Ganz, 21 Minn. 387; Albany City Nat. Bank v. Maher, 6 Fed. Rep. 417; Greenup v. Franklin Co. 30 Ark. 101; State Railroad Tax Cases, 92 U. S. 643; Mann v. Board of Ed. 63 How. Pr. 289; Swinney v. Board, 71 Ill. 27; Leitch v. Wentworth, 71 Ill. 146; McConkey v. Smith, 73 Ill. 313; Village of Nunda v. Village of Chrystal Lake, 79 Il. 311; Alexander v. Dennison, 2 McArth. 562; Wells v. Dayton, 11 Nev. 161; U. P. R. Co. v. Lincoln Co. 2 Dill. 297; Messick v. Sup'rs, 50 Barb. 190; Hanlon v. West Chester Co. 57 Barb. 383; Susquehanna Bank v. Broome Co. 25 N. Y. 312; Weaver v. State, 39 Ala. 535; Cook Co. v. Chicago, etc., R. Co. 35 Ill. 460; McDonald v. Murphree, 45 Miss. 705; Sayre v. Tompkins, 23 Mo. 443; First Nat. Bank v. Meredith, 44 Mo. 500; Barrow v. Davis, 46 Mo. 394; McPike v. Pew, 48 Mo. 525.

(5) Armstrong v. Co. Ct. of Taylor Co. 15 W. Va. 190; Douglass v. Harrisville, 9 W. Va. 162; Clarke v. Ganz, 21 Minn. 387; Parmley v. St.

Lawrence, etc., R. Co. 3 Dill. 13; Barley v. Pacific, etc., R. Co. Id. 22; Murphy v. Mayor, 10 Reporter, 765; Dows v. Chicago, 11 Wall. 108.

(k) Armstrong v. Co. Ct. of Taylor Co. 15 W. Va. 190; Douglass v. Harrisville, 9 W. Va. 162; Clarke v. Ganz, 21 Minn. 387; Carrothers v. Board of Ed. 16 W. Va. 327; South Platte Land Co. v. Buffalo Co. 7 Neb. 253; Same v. Crete, li Neb. 344.

(1) Carrothers v. Board of Ed. 16 W. Va. 327; Armstrong v. Co. Ct. of Taylor Co. 15 W. Va. 190; Douglass v. Harrisville, 9 W. Va. 162; South Platte Land Co. v. Buffalo Co. 7 Neb. 253; Murphy v. Mayor, 10 Reporter, 765; Guest v. City of Brooklyn, 69 N. Y. 506; State Railroad Tax Cases, 92 U. S. 575.

(m) Douglass v. Harrisville, 9 W. Va. 102; Murphy v. Mayor, 10 Reporter, 765; Ivenson v. Hance, 1 Wyo. 270; South Platte Land Co. v. Buffalo Co. 7 Neb. 253; Guest v. City of Brooklyn, 69 N. Y. 506; Osborn v. Bank, 9 Wheat. 738. (*) State Railroad Tax Cases, 92 U. S. 575.

(n) Douglass v. Harrisville, 9 W. Va. 162; Murphy v. Mayor, 10 Reporter, 765; Ivenson v. Hance, 1 Wyo. 270; South Platte Land Co. v. Buffalo Co. 7 Neb. 253; Guest v. City of Brooklyn, 69 N. Y. 506; State Railroad Tax Cases, 92 U.S. 575.

(0) Murphy v. Mayor, 10 Reporter, 765. (p) Moody v. Jamison, 54 Tex. 492, (9) Guest v. City of Brooklyn, 69 N. Y. 506; Greenup v. Franklin Co. 30 Ark. 101.

number of persons are involved, or a multitude of suits may be averted, and great individual loss and damage prevented, a court of equity may interfere to prevent the collection of a tax. (r) Where the case is brought under some head of equity jurisdiction, and brought in behalf of himself alone or of all other tax-payers similarly situated, if shown that the tax is illegal, to avoid a multiplicity of suits, equity will take jurisdiction by injunction, (s) as equity disfavors a multiplicity of suits. (t) Multiplicity does not mean multitude, and injunction will not be granted where the object is to obtain a consolidation of actions, or to save the expense of separate actions;(u) that assessment is divided into a number of installments, does not bring it within this exception.(v) Where an alleged illegality extends to the whole assessment, or where it affects in the same manner a number of persons, so that the question involved can be presented by one bill, filed by all or any number thus interested, such joint bill may properly be filed. (w) An action in equity may be maintained by any one upon whose real estate an apparent lien has been created on his own behalf, and in behalf of others in like situation, to have it canceled and to restrain its enforcement.(x) The rule applied to assessments for local improvements.(y) When brought by more than one complainant, a bill which states distinct grounds for relief, relied on by each separately, is multifarious. (2) When an invalid tax includes an assessment on personalty as well as on realty, a court which obtains jurisdiction to restrain the collection of the tax on the land may properly give relief to the person. (a)

IRREPARABLE INJURY. In no case will the collection of a tax be enjoined where it is not shown that the injury resulting from its enforcement would be irreparable; (b) but where irreparable injury would ensue the court will enjoin the sale; (c) and this fact must appear in the bill by issuable averments;(d) and it must clearly appear not such an indebtedness as the duty of a citizen requires him to discharge. (e) greatly or irreparably affected by the

(7) George v. Dean, 47 Tex. 73.

Carrothers v. Board of Ed. 16 W. Va. 327; Deenan v. Board of Ed. 9 W. Va. 246; London v. City of Wilmington, 78 N. C. 109.

(t) Conkling v. Secor Sew. Mach. Co. 55 How. Pr. 269.

(u) Murphy v. Mayor, 10 Reporter, 765. (v) Guest v. City of Brooklyn, 69 N. Y. 506. (w) Brandorff v. Harrison Co. 50 Iowa, 164; Mandeville v. Riggs, 2 Pet. 482; Floyd v. Gilbreath, 27 Ark. 675; Webster v. Harwinton, 32 Conn. 131; Terret v. Sharon, 34 Conn. 105; King v. Wilson, 1 Dill. 555; Coulson v. Portland, Deady, 481; Bull v. Read, 13 Gratt. 78; Johnson v. Drummond, 20 Gratt. 419; Holmes v. Baker, 16 Gray, 259; Vanover v. The Justices, 27 Ga. 354; Lafayette v. Cox, 5 Ind. 38; Nill v. Jenkinson, 15 Ind. 425; Oliver v. Keighley, 23 Ind. 514; Harwood v. St. Clair, etc., Co. 51 Ill. 130; McMillan v. Lee Co. 8 Iowa, 311; Kerr v. Lansing, 17 Mich. 34: Scofield v. Lansing, Id. 437; Metz v. Detroit, 18 Mich. 495; Baltimore v. Porter, 18 Md. 284; Baltimore v. Sill, 31 Md. 375; Hooper v. Ely, 46 Mo. 505; Steiner v. Franklin Co. 48 Mo. 167; Barr v. Deniston, 19 N. H. 170; Manly v. Raleigh,

It must appear that his rights will be acts sought to be restrained, and the

4 Jones, Eq. 370; Galloway v. Jenkins, 63 N. C. 147; Upington v. Oviatt, 24 Ohio St. 232; Mott v. Penn. R. Co. 30 Pa. St. 39; Page v. Allen, 58 Pa. St. 338; Stevens v. Rutland, etc., R. Co. 29 Vt. 545.

(x) Clark v. Village of Dunkirk, 12 Hun, 181; Meth. Epis. Church v. New York City, 27 Hun, 297; Temple Grove Seminary v. Cramer, 33 Hun, 388.

(y) Kennedy v. City of Troy, 14 Hun, 308; Clark v Village of Dunkirk, 12 Hun, 181.

(z) Hudson v. Atchison Co. 12 Kan. 140; Kerr v. Lansing, 17 Mich. 34.

(a) Folkerts v. Power, 42 Mich. 203.

(b) Ritter v. Patch, 12 Cal. 298; South Platte Land Co. v. Buffalo Co. 7 Neb. 353.

(c) Oliver v. Memphis & L. R. R. Co. 30 Ark. 128. (d) Ritter v. Patch, 12 Cal. 298; Frost v. Flick, 1 Dak. 131. See Sheldon v. School-dist. 25 Conn. 224; Dodd v. Hartford, Id. 232; and compare Sav. & Loan Ass'n v. Austin, 46 Cal. 415; Houghton v. Austin, 47 Cal. 646; Central Pac. R. Co. v. Corcoran, 48 Cal. 65.

(e) Frost v. Flick, 1 Dak. 131.

right must be clear, and the remedy at law inadequate.(f) This rule is applicable to an assessment for a local improvement as well as to a state and county tax.(g)

CLOUD ON TITLE. A court of equity will not restrain a sale for taxes where the only damage is to cast a cloud on the title; (h) nor will it interfere to remove a cloud on title till one exists; (i) as a man may protect his land from sale upon a tax warrant, or from a cloud on his title by a tax lien, by paying the tax and suing to recover it back. Such payment is not to be regarded as voluntary.(j) A bill to enjoin the collection of a tax, which by statute is made a lien on lands, sustained as a proper one to remove a cloud on title to lands.(k) But where the assessment is made a personal charge against the owner, and not a lien on the land, no other ground would authorize equitable interference than such as would exist in case of a tax on personalty.(1) Where a tax constitutes an apparent lien on lands, and might result in a sale and conveyance by deed, which would be prima facie evidence of title, a bill will lie to enjoin its collection where the tax is illegal; (m) and a sale by public officers under authority of law, but having no authority in fact, is such a cloud as would authorize the interposition of a court of equity.(n)

ON GROUND OF FRAUD. Equity has jurisdiction to enjoin the sale of personal property for taxes where the bill alleges and the proof shows that the taxes were fraudulent;(0) as where the property was fraudulently assessed at too high a rate; (p) or where there is a clear case of fraud in the valuation of the property.(q) In the latter case the proof must be clear and irresistible, and the injury likely to result must be considerable;(7) and where the bill fails wholly to show a fraudulent assessment, but only an excessive valuation and irregularities in making the assessment, injunction will not lie;(s) but proof of fraud is necessary only where the error or irregularity is one of those enumerated. Where not enumerated, and it is a substantial one, proceedings to vacate are maintainable without proof of fraud under the statute.(t) A statement in the bill that the assessment was outrageously exorbitant and was fraudulently made, without showing in what the overvaluation consists, and giving no facts or particulars, is not sufficient, as a mere allegation of fraud is not sufficient, and overvaluation of itself will not establish fraud.(u) If fraud is charged, equity may interfere; but courts have no right to interfere

(f) Normand v. Otoe Co. 8 Neb. 18; Dodd v. Hartford, 25 Conn. 232.

(g) Dean v. Davis, 51 Cal. 407. (h) Red v. Johnson, 53 Tex. 284.

(i) Judd v. Town of Fox Lake, 28 Wis. 583; Milwaukee Iron Co. v. Hubbard, 29 Wis. 32. (j) Seeley v. Westport, 47 Conn. 294, (k) Thomas v. Gain, 35 Mich. 155.

(1) Brewer v. Springfield, 97 Mass. 152; Hunnewell v. Charlestown, 106 Mass. 350; Williams v. Detroit, 2 Mich. 560; Henry v. Gregory, 29 Mich. 68.

(m) Marquette R. Co. v. Marquette, 35 Mich. 504.

(n) Ottowa v. Walker, 21 111. 305; Chicago, B. & Q. R. Co. v. Frary, 22 111. 34; Barnard v. Hoyt,

63 III. 341; Litchfield v. Polk Co. 18 Iowa, 70: Hol. land v. Baltimore, 11 Md. 186: Leslie v. St. Louis, 47 Mo. 474; Burnett v. Cincinnati, 3 Ohio, 73: Culbertson v. Cincinnati, 16 Ohio, 574; Dean v. Mad. ison, 9 Wis. 402.

(0) Lewis v. Spencer, 7 W. Va. 689.

(p) Frost v. Flick, 1 Dak. 131; Evans v. Gage, 1 Bradw. 202; Cleghorne v. Postlewaite, 43 IL 428; Albany Min. Co. v. Aud. Gen. 37 Mich. 391.

(4) Union Trust Co. v. Weber, 96 Ill. 346; Town of Lemont v. Singer & Talcott Stone Co. 98 III. 94. (r) Union Trust Co. v. Weber, 96 Ill. 346. (s) Gage v. Evans, 90 I11. 569.

(t) In re Emigrant Indust. Sav, Bank, 75 N. Y. 389.

(u) Union Trust Co. v. Weber, 92 Ill. 346.