the court. And his possession is that of the court. The general practice seems to be, when necessary for the recovery or preservation of personal property by the receiver, the defendant will be required by the court to assign it by a proper written instrument to the receiver. In reference to personal property, such an assignment may not be necessary, but courts frequently require it. But where it is necessary to execute leases, or to bring ejectment, etc., for real estate, an assignment or conveyance to the receiver is believed to be necessary in all cases. The form of such a transfer is given in Edwards on Receivers, p. 86. That the court may authorize and empower a receiver, like a master and as a special commissioner, to sell real estate by a decree of court, is not doubted. He, however, in such case receives thereby no title to the property.

But if, by his appointment or by conveyance, he become invested with title to real estate, we are wholly at a loss to see any reason for holding that the lien of the State or municipalities for taxes should be lost or defeated. He but takes the property for the benefit of all lien holders and creditors. And, we apprehend, no one will or can contend that when the State or municipalities have a lien on property for taxes, it is not paramount to all other liens. This is elementary law that cannot be questioned. The receiver is not a purchaser, but he receives the possession and title, when transferred to him, to hold for all persons in interest. And if not a purchaser, there cannot be the slightest claim for holding the 278th section can in any manner affect the lien for these taxes, whatever may be its meaning, which seems not to be entirely clear, or that the appointment of a receiver impaired the lien of the State and municipalities for their taxes in the slightest degree.

It is also urged that the clerks did not conform to the requirements of the 129th section of the Revenue law of 1872, in adding back taxes, interest, penalty and printer's fees, that the amount added was too large.

In the case of The People v. Gale, 93 Ill. 128, this question was before us, and a construction was given to that section. We have not taken the time to make a computation to see whether the amount is too large. That is a question, in view of that decision, that can be determined by a simple calculation that we will not stop to make.

It is urged that the Governor, Auditor and Treasurer levied a greater per cent of taxes for the year 1873 than the act authorized to produce the revenue provided for by law.

In the case of Edwards v. The People, 88 Ill. 340, this question was before us, and it was held that the levy by the Governor, Auditor and Treasurer of a per cent that produced an amount above the sum authorized to be raised, did not render the tax void in whole or in part. It was there held that these officers might

fix such per cent as in their judgment would produce the required amount. That case is conclusive of this question.

The power of the chancellor to restrain the collection of the revenue is one that should never be exercised but in cases where the tax is levied on property exempt from taxation, where it is doubly taxed, where it is levied without any warrant of law, by persons having no power to make the levy, or where a clear case of fraud in making the valuation of the property is shown. But in the latter case the proof must be clear and irresistible, and the injury likely to be produced considerable. It is so eminently just and equitable that every person or corporation receiving protection from the government should each contribute his or its fair and just proportion to its support, that a court of chancery should never interpose except to prevent great wrong and injustice. Mere technical objections, or even legal omissions, in assessing property or the collection of the tax, usually, do not affect in the slightest degree this strong equitable obligation. If many of the requirements of the law, even those that are important, should be omitted, still the strong equitable duty to pay a tax on property remains. When it escapes, the burthen is, unjustly and inequitably, imposed on others to the extent that property is relieved from its just burthen.

Again, most if not all of the objections, that can be urged in a court of equity, may be successfully interposed at law. And, there being a complete remedy at law, the defence should be limited to that forum, except in but few cases, and that to prevent great injustice and wrong. This property belonged to the railroad company; it was liable to be taxed, the tax was imposed, and it has never been paid, and equity requires not that the tax should be enjoined, but that it should be paid.

What we have said applies to the tax imposed on, or which became a lien on the real estate of the railroad company. We now come, however, to the tax on the rolling stock and other personal property, claimed to have, at the time of the assessment, belonged to Payson & Co., and not to the railroad company. If this property did not belong to the railroad company then it was improperly listed to it, and the tax thereon did not, nor could it, become a lien on the real estate of the railroad company. Furguson was, at least, the agent of Payson & Co., and was acting for them when he made the returns to the county clerks. Whilst it is denied that he was the principal engineer and general superintendent of the railroad company, it is alleged that he was acting in that capacity for the construction company.

The schedules returned to the clerks of St. Clair, Monroe and Randolph counties describe the rolling stock and other personal property as belonging to Payson & Co. There seems to be some confusion in these returns, growing, perhaps, out of the fact that

printed forms applicable to railroads were used, and in endeavoring to make them answer for the returns of the construction company. The return states that "H. R. Payson & Co., contractors to build and operate the Cairo and St. Louis Railroad, makes return of its property for taxation by schedules, as follows: Schedule A shows the property designated by law Railroad track' belonging to or controlled by the company, and the listed value thereof. Schedule marked B shows an inventory of all property denominated by law 'rolling stock,' belonging to or controlled by this company, and listed value thereof; also the length, in feet, of main track on which said rolling stock is used in Illinois, and the length, in feet, of main track on which said rolling stock is used elsewhere. Schedule C shows the tools and materials for repairs, and all other personal property (except rolling stock) belonging to or owned by said company, and the location and listed value thereof."

Schedule A is headed "Railroad track belonging to H. R. Payson & Co., contractors to build and operate the Cairo and St. Louis Railroad in St. Clair county, Illinois, May 1, 1873." Schedule B is headed "Rolling stock belonging to H. R. Payson & Co., contractors to build and operate the Cairo and St. Louis Railroad, May 1, 1873." Schdule C is headed "Personal property belonging to H. R. Payson & Co., contractors to build and operate the Cairo and St. Louis Railroad in St. Clair county, May 1, 1873." The returns and schedules filed with the clerks of Monroe and Randolph counties are substantially the same as these.

It will be observed that the return states that it is of the property of the railroad company, while the caption of each schedule describes it as the property of the construction company. With this repugnancy in this return we can only look to the circumstances under which the return was made, for a solution of the difficulty. The construction company had bound themselves to build and equip the road, furnishing materials and labor, for which the railroad company was to pay them as the work progressed, and the former company was to operate the road until completed and account for the net profits to the railroad company. The bill alleges that the rolling stock was not delivered to, and did not become the property of the railroad company until in September, after the schedules were returned. Now, if the construction company purchased the rolling stock and owned it when it was listed for taxation, and if Furguson was not the agent or superintendent of the railroad company, and had no authority to act for and bind the latter company, as the bill alleges, and as is admitted by the demurrer, then this rolling stock was wrongfully listed to the railroad company, and the collection of the tax thereon should be enjoined. The same is true of the tools and other personal property.

But if the personal property belonged to the railroad company on the first of May, 1873, it was properly listed to it, without refer

ence to the manner or form in which the return was made. Or, even if it belonged to the construction company, and Furguson was the superintendent of the railroad company, and he returned it as belonging to the railroad company, there would be no grounds for staying the collection of the tax, as, under the statute, it became a lien on the real estate. As to the listing and ownership of the personal property, the bill makes a prima facie case for relief, and that part of the bill requires an answer.

The decree of the court below is reversed, and the cause remanded, with leave to defendants to answer.

Decree reversed.

DICKEY, Ch. J.-I concur in the conclusion and judgment, but not in all of the views expressed.

The general rule as to relief in a court of equity against a tax is the same that applies to other matters. When there is a plain and adequate remedy at law, equity affords no relief. If there is fraud, if the enforcement of the tax would lead to a multiplicity of suits, produce irreparable injury, or throw a cloud upon the title to land, in such cases relief is given. State Railroad Tax Cases, 92 U. S. 575, 613. If the tax is illegal and there is no authority to collect it the officer is a trespasser, and the tax payer has his remedy at law. Where the tax is resisted on account of errors in the mode of assessment merely affecting the amount of the tax, there is in all of the States some statutory method for correcting such errors. But in cases of errors in assessment, if it be alleged that the assessors acted fraudulently, with a view of imposing on the tax payer more than his proportion of the tax, equity will give relief. Smith o. Humphrey, 20 Mich. 398; Merritt v. Humphrey, 24 Mich. 170. Prior to the decision of the principal case, it was held in Iowa that the illegality of the tax was sufficient ground for a court of equity to restrain the collection of the tax. Rood v. Board of Supervisors of Mitchell Co., 39 Iowa, 444. This was, however, the only State in which it was distinctly so decided. In many cases, however, an injunction has been regarded as a convenient mode of testing the legality of a tax. Eyre v. Jacob, 14 Gratt. 424. In Ohio, it is expressly declared by statute that suits may be brought to enjoin the illegal levy of taxes and assessments, or the collection of them. Revised Statutes of Ohio, § 5848 (1880).

In State Railroad Tax Cases, 92 U. S. 613, a condition was attached to granting relief in equity when the amount of the tax alone was in dispute, that the tax payer should pay or tender the amount admitted to be due. This ruling has been followed in numerous cases. Cumming v. National Bank, 101 U. S. 153; German National Bank of Chicago v. Kimball, 23 A. L. J. 369. Multiplicity of suits is a ground of equity jurisdiction, but to constitute it a ground for an injunction against a tax the parties affected must have a common interest affected by some single act. A number of liquor dealers are not entitled to relief in equity against an alleged illegal license tax. Youngblood. Sexton, 32 Mich. 406.

In reference to taxes due the Federal Government it is provided by statute that no injunction shall be granted to restrain their collection. R. S. N. S., § 3224. This statute gives full protection to officers in the regular administration of an act of Congress; it is thought, however, not to apply where the collector clearly exceeds the authority conferred upon him, and is acting without the pale of the law. Erskine v. Hohnback, 14 Wall. 613; Pullan v. Kinsinger, 2 Abb. C. Ch. 24; Frayser o. Russell, 3 Hughes C. Ch. 227.

No reference is made in these notes to the relief given by courts against 8 A. & E. R. Cas.-39

the collection of taxes levied by cities, counties, and other municipalities, where it is alleged that such municipalities have no power to levy the tax in controversy. It stands upon different grounds and relief is generally given by injunction. Harward o. Levee Co., 51 Ill. 130; Terrel v. Sharon, 34 Conn. 105; Bull v. Read, 13 Gratt. 87; Stines v. Franklin Co., 48 Mo. 167.

WILLIAM B. DINSMORE, PRES. ADAMS EXPRESS Co., etc., v. THE
MISSOURI, KANSAS & TEXAS RY. Co.

SAME V. THE ATCHISON, TOPEKA & SANTA FE R. R. Co.
SAME V. THE DENVER & RIO GRANDE RY. CO.

THE SOUTHERN EXPRESS Co. v. THE ST. LOUIS, IRON MOUNTAIN &
SOUTHERN Rr. Co.

THE SOUTHERN EXPRESS Co. v. THE MEMPHIS & LITTLE ROCK R. R. Co.

(Circuit Court of the United States, Eighth Circuit.)

The express business is a branch of the carrying trade which the Court will take notice of as distinct in its character and requirements from the business of transporting large masses of freight in the way usually done by railroad and steamboat companies.

It is one of the recognized necessities of the express business that the packages forwarded by it should be accompanied by and under the charge of a messenger or agent of the company while in transitu.

Railroad companies transporting express matter thus accompanied are no longer liable to all the obligations of a common carrier, but are only bound to exercise due care, skill, and diligence.

Railroad companies have no right to open and inspect packages forwarded by express, especially if closed or sealed.

It is the duty of every railroad company to provide suitable conveyances for the transportation of express matter and of the person in charge of it at reasonable rates of compensation, and to extend these facilities equally to all engaged in the express business.

Courts of equity have power, by means of orders and decrees, to compel railroad companies to perform their duties in this respect..

If any dispute arises as to what is reasonable compensation, such courts may determine it, not by fixing the rates in advance, but by determining after the service has been performed what is reasonable payment therefor. A railroad company cannot insist upon payment by an express company for services rendered in advance or at the end of every train.

In determining what is reasonable compensation, the court will presume that the rates formerly agreed on between the railroad company and the express company are, prima facie, just and reasonable, and may order the express company to give a bond in advance for indebtedness which it may thereafter incur.

Where no such former agreement has existed, it is competent for the Court to devise some mode of compensation to be paid as the business progresses.