remedy of injunction can be invoked. It is upon taxation that the several states chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of the government, and thereby cause serious detriment to the public. No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law." 11 Wall. 109, 110, 20 L. Ed. 65. "The party of whom an illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action." 11 Wall. 112, 20 L. Ed. 65.

In the State Railroad Tax Cases, this court, in a careful and thorough opinion delivered by Mr. Justice Miller, stated that "it has been repeatedly decided that neither the mere illegality of the tax complained of, nor its injustice nor irregularity, of themselves, give the right to an injunction in a court of equity," referred to section 3224 of the Revised Statutes (U. S. Comp. St. 1901, p. 2088), which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court," and said that, "though this was intended to apply alone to taxes levied by the United States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued existence." The court then quoted from Dows v. Chicago and Hannewinkle v. Georgetown, above cited, and proceeded as follows: "We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes. But we may say that, in addition to illegality, hardship or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction, and that mere errors or excess in valuation, or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. One of the reasons why a court should not thus interfere, as it would in any transaction between individuals, is that it has no power

to apportion the tax or to make a new assessment, or to direct another to be made by the proper officers of the state. These functions are wholly beyond the power of the court when so acting. The levy of taxes is not a judicial function. Its exercise, by the Constitutions of all the states, and by the theory of our English origin, is exclusively legislative. A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of, in whole or in part, without any power of doing complete justice by making, or causing to be made, a new assessment on any principle it may decide to be the right one.14 In this manner, it may, by enjoining the levy, enable the complainant to escape wholly the tax for the period of time complained of, though it be obvious that he ought to pay a tax if imposed in the proper manner." 92 U. S. 613-615, 23 L. Ed. 663.

In Union Pacific Railway Co. v. Cheyenne, in which the Union Pacific Railway Company obtained an injunction against the levy of a tax by the city of Cheyenne, the facts were peculiar. The plaintiff, owning many lots of land in that city, had paid a tax assessed on all its property by a board of equalization under a general statute of the territory of Wyoming, and had also been taxed by the city. of Cheyenne under provisions of its charter which had been repealed by that statute; and the bill showed, as stated in the opinion, that the levy complained of "would involve the plaintiff in a multiplicity of suits as to the title of lots laid out and being sold, would prevent their sale, and would cloud the title to all its real estate." 113 U. S. 526, 527, 5 Sup. Ct. 601, 606, 28 L. Ed. 1098. * * * 15

14 Compare remarks of Cooley, J., on advantages of injunction in tax proceedings, in Whitbeck v. Hudson, 50 Mich. 86, 88, 14 N. W. 708 (1883).

15 In the case last cited (Union Pacific Railway Co. v. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098 [1885]) the court says: "It cannot be denied that bills in equity to restrain the collection of taxes illegally imposed have frequently been sustained. But it is well settled that there ought to be some equitable ground for relief besides the mere illegality of the tax; for it must be presumed that the law furnishes a remedy for illegal taxation. It often happens, however, that the case is such that the person illegally taxed. would suffer irremediable damage, or be subject to vexatious litigation, if he were compelled to resort to his legal remedy alone. For example, if the legal remedy consisted only of an action to recover back the money after it had been collected by distress and sale of the taxpayer's lands, the loss of his freehold by means of a tax sale would be a mischief hard to be remedied. Even the cloud cast upon his title by a tax under which such a sale could be made would be a grievance which would entitle him to go into a court of equity for relief. Judge Cooley fairly sums up the law on this subject as follows: To entitle a party to relief in equity against an illegal tax, he must by his bill bring his case under some acknowledged head of equity jurisdiction. The illegality of the tax alone, or the threat to sell property for its satisfaction, cannot, of themselves, furnish any ground for equitable interposition. In ordinary cases a party must find his remedy in the courts of law, and it is not to be supposed he will fail to find one adequate to his proper relief. Cases of fraud, accident, or mistake, cases of cloud upon the title to one's property, and cases where one is threatened with irremediable mischief may demand other remedies than those the common law can give, and these in proper case, may be afforded in courts of equity.' This statement is in gener

SECTION 47.-MANDAMUS

BLACKSTONE'S COMMENTARIES, BOOK III, p. 110.

A Writ of Mandamus is, in general, a command issuing in the king's name from the Court of King's Bench,16 and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes, to be consonant to right and justice.

It is a high prerogative writ, of a most extensively remedial nature and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office ;17 but it issues in all cases where the party hath a right to have any thing done, and hath no other specific means of compelling its performance. A mandamus therefore lies to compel

al accordance with the decisions of this court, as well as of many state courts. Dows v. Chicago, 11 Wall. 108, 109, 20 L. Ed. 65 (1870); Hannewinkle v. Georgetown, 15 Wall. 547, 549, 21 L. Ed. 231 (1872); State Railroad Tax Cases, 92 U. S. 575, 612, 613, 23 L. Ed. 663 (1875), and cases there cited. In Cummings v. National Bank, 101 U. S. 153, 156, 25 L. Ed. 903 (1879), where the bank filed a bill to prevent the collection of a tax wrongfully assessed by the state against the shares of its stockholders, and which the bank was required to pay, we held that the fiduciary character in which the bank stood to its stockholders entitled it to come into a court of equity for relief. In the same case the fact that a like remedy by injunction was given to parties in the state court was regarded as entitled to much weight, and it was further held that where a rule or system of valuation was adopted by the state board of assessment, calculated to operate unequally, and to violate the Constitution of the state, and applicable to a large class of individuals, or corporations, equity might properly interfere to restrain the operation of such unconstitutional exercise of power. And in Litchfield, v. Webster County, 101 U. S. 773, 779, 25 L. Ed. 925 (1879), we held that a court of equity might relieve against an excessive rate of interest on taxes in arrear, which was really in the nature of a penalty, and which the state could not fairly and equitably demand, having itself claimed title to the property taxed. These authorities are sufficient to illustrate the rules by which courts of equity should be gov erned in assuming jurisdiction of suits brought to arrest the collection of illegal taxes. We think that the allegations of the bill in this case bring it fairly within the jurisdiction of the court. It shows that it would involve the plaintiff in a multiplicity of suits as to the title of lots laid out and being sold, would prevent their sale, and would cloud the title to all its real estate. We think that these results are sufficiently apparent, and render it unnecessary to look farther." 113 U. S. 525-527, 5 Sup. Ct. 605-606, (28 L. Ed. 1098 (1885).

an

"If there was no right to assess the particular thing at all, * assessment under such circumstances would be void, and, of course, no pay

16 As to the courts which issue Mandamus, see School Inspectors of Peoria v. People, 20 Ill. 525 (1858), and note 58 L. R. A. 333.

17 See King v. Wheeler, Lee temp. Hardwicke, 99 (1735).

the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees; to the use of a meeting-house, etc. It lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an indefinite number of other purposes, which it is impossible to recite minutely.

CODE OF PRACTICE OF GEORGIA OF 1895.

Sec. 4867. All official duties should be faithfully fulfilled, and whenever from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights.

Sec. 4868. Mandamus does not lie as a private remedy between individuals to enforce private rights, nor to a public officer who has an

ment or tender of any amount would be necessary before seeking an injunction." People's National Bank v. Marye, 191 U. S. 272, 281, 24 Sup. Ct. 68, 71, 48 L. Ed. 180 (1903).

"The assessment being bad, for the reasons which we have stated, the board of tax commissioners acted without jurisdiction, according to the decision of the Supreme Court of Indiana. Hart v. Smith, 159 Ind. 182 [64 N. E. 661, 58 L. R. A. 949, 95 Am. St. Rep. 280 (1902)]. We do not abate at all from the strictness of the rule that in general an injunction will not be granted against the collection of taxes. State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663 (1875). But it was recognized in the passage just quoted from People's National Bank v. Marye that under the present circumstances a resort to equity may be proper. The course adopted is the same that was taken without criticism from the court in Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683 (1897). It avoids the necessity of suits against the officers of each of the counties of the state, and we are of opinion that the bill may be maintained. Union Pacific Ry. v. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098 (1885); Pittsburg, Cincinnati, Chicago & St. Louis Ry. v. Board of Public Works, 172 U. S. 32, 19 Sup. Ct. 90, 43 L. Ed. 354 (1898)." Fargo v. Hart, 193 U. S. 490, 503, 24 Sup. Ct. 498, 501, 48 L. Ed. 761 (1904).

In a number of states there are statutes prohibiting the granting of injunetions to restrain the assessment or collection of taxes. See Eddy v. Tp. of Lee, 73 Mich. 123, 40 N. W. 792 (1888); Laird-Norton Co. v. Pine County, 72 Minn. 409, 75 N. W. 723 (1898). But these statutes do not control the equitable jurisdiction of the federal courts. Taylor v. Louisville & N. R. Co., 88 Fed. 350, 31 C. C. A. 537 (1898).

The following additional cases in this collection are suits to restrain public officers or bodies: Lingo v. Burford, 112 Mo. 149, 20 S. W. 459 (1892); Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L. Ed. 1031 (1894); State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663 (1875); Huling v. Ehrich, 183 Ill. 315, 155 N. E. 636 (1899); Metropolitan Bd. of Health v. Heister, 37 N. Y. 661 (1868); North American Cold Storage Co. v. Chicago, 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195 (1908); Eckhardt v. Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204 (1897); Lowell v. Archambault,

absolute discretion to act or not, unless there is a gross abuse of such discretion; but it is not confined to the enforcement of mere ministerial duties.

SECTION 48.-SAME-NATURE AND FORM OF PRO

CEEDING

STATE ex rel. ATCHISON, T. & S. F. R. CO. v. BOARD OF COM'RS OF JEFFERSON COUNTY.

(Supreme Court of Kansas, 1873. 11 Kan. 66.)

VALENTINE, J. This is an original proceeding in mandamus, brought in the name of the state of Kansas, on the relation of the Atchison, Topeka & Santa Fé Railroad Company, against the board of county commisioners of Jefferson county, to compel said county commissioners to issue certain bonds of said county to said railroad com

189 Mass. 70, 75 N. E. 65 (1905); Chicago v. Burtice, 24 Ill. 489 (1860); Weber v. Baird, 208 Ill. 209, 70 N. E. 231 (1904); Taylor v. Louisville & N. R. Co., 88 Fed. 350, 31 C. C. A. 537 (1898); Magnetic School of Healing v. McAnnulty, 187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90 (1902); Noble v. Union River Logging R. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L Ed. 123 (1893); Bates & Guild Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894 (1904); Reynolds v. Schultz, 27 N. Y. Sup. Ct. 282 (1867).

Taxpayers' actions to restrain the illegal, corrupt, or wasteful expenditure of public funds: Doolittle v. Supervisors of Broome County, 18 N. Y. 155 (1858), jurisdiction denied. Statute allowing such action: Laws N. Y. 1872, c. 161, now Code Civ. Proc. § 1925. See Talcott v. Buffalo, 125 N. Y. 280, 26 N. E. 263 (1891); General Municipal Law N. Y. 1892, c. 685, § 3; Rev. Laws Mass. c. 25, § 100.

Jurisdiction asserted: Colton v. Hanchett, 13 Ill. 615 (1852); New London v. Brainard, 22 Conn. 552 (1853); Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070 (1879).

Actions in equity by public authorities to restrain violation of law by private persons or corporations: Attorney General v. Gt. Northern R. Co., 1 Drew. & S. 154 (1860); Attorney General v. Railroad Companies, 35 Wis. 425 (1874); In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092 (1895); Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407 (1895); Com. ex rel. Pratt v. McGovern, 116 Ky. 212, 75 S. W. 261, 66 L. R. A. 280 (1903); State v. Uhrig, 14 Mo. App. 413 (1883); State v. O'Leary, 155 Ind. 526, 58 N. E. 703 (1900); Taunton v. Taylor, 116 Mass. 254, pt. 5 (1874); Village of Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446 (1874); Mayor of Davenport Corporation v. Tozer, [1902] 2 Ch. 182; Attorney General v. Ashborne Recreation Grounds Co., [1903] 1 Ch. 101; Inhabitants of Needham v. N. Y. & N. E. R. Co., 152 Mass. 61, 25 N. E. 20 (1890); Metropolitan City Ry. Co. v. Chicago, 96 Ill. 620 (1880). General City Law of New York, § 223: * * The city may maintain an action in a court of competent jurisdiction to restrain by injunction the violation of any ordinance of the common council or of the commissioner in charge of the health department, notwithstanding that an ordinance may provide a penalty for its violation."