been made. Injunction was the proper remedy to which to resort, if there was occasion for any." But it seems clear that if prohibition had been asked before the making of the contract, it would have been denied on the ground that the making of the contract was not a quasi judicial, but a discretionary matter (§ 13, above).

§ 51. Distinguished from quo warranto. One of the best settled rules of the law is that injunction is not to be made use of to try the title to office. Thus in Osgood v. Jones (51) the complainant was treasurer of Merrimack county, his term of office extending until June 30, 1881, and until his successor should be chosen and qualify. The election judges declared the defendant elected and issued an election certificate to him, but the complainant claimed there had been fraud in the election and asked for an injunction to prevent his assuming the office. The court, quoting from High, said: "No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment of public officers, or their title to office, such questions being of a purely legal nature and cognizable only by courts of law. A court of equity will not permit itself to be made the forum for determining disputed questions of title to public office, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of a quo warranto."

(51) 60 N. H. 543.

In other matters than those involving a title to office, however, the line is often very close between injunction and quo warranto. Thus the authorities are pretty evenly divided as to which is the proper remedy when a municipal corporation attempts to exercise its authority over territory not properly within the corporation limits. The question involved in such cases is whether the exercise of such power is the usurping of a franchise by the municipality, from which it is to be ousted by quo warranto; or merely an exercise of power in excess of authority, to be restrained by injunction.

§ 52. Distinguished from certiorari. Injunction may not be used to usurp the place of certiorari in reviewing irregularities in the action of a quasi judicial board. Thus in Lane v. Morrill (52) an injunction was asked to restrain a joint board of selectmen and school committee from establishing a new school district, on the ground that the board had admitted irrelevant and illegal evidence at the hearing before them, and that, influenced by such illegal and improper evidence, they decided the matter differently from what they otherwise would and against the manifest interest and right of the plaintiffs. The court said that the action of the board was clearly judicial in character and that the proposition advanced came to this, "that the court shall entertain and consider, on a bill in equity, any and all exceptions that may be taken to the admission or rejection of evidence before tribunals of this sort; and, what is more, if upon such decision it should be found that the tribunal erred, the matter is not to be

(52) 51 N. H. 424.

sent back to them for correction of their error, but the whole proceedings are to be practically annulled by the summary process of injunction." The court rejected this proposition and said that, whether certiorari would lie or not, if any remedy existed it would have to be found in proceedings on the law side of the court.

§ 53. Distinguished from habeas corpus. Though, like habeas corpus, injunction is frequently made use of to test the constitutionality of laws, it is not likely to be confused with it. Habeas corpus is the great remedy for testing constitutional wrongs to the person, the injunction wrongs to property.

§ 54. Not used to control discretion. That injunction may be used to prevent an official from illegal action, but not to interfere with his discretion, is illustrated by the cases of American School of Magnetic Healing v. McAnnulty, and Bates v. Payne (53). In the former case, injunction was allowed against a postmaster, acting under instructions from the postmaster general, to prevent him from excluding from the mails certain tracts on mental healing on the ground that they were fraudulent. The court said that the exclusion of matter which was not fraudulent was contrary to law and enjoined it. In the second case, the plaintiff wished an injunction to compel the recognition of a certain series entitled "Masters of Music" as a periodical publication and entitled to be received as second-class mail matter. The court said: "The rule upon this subject may be summarized as follows: Where the decision of questions of fact is commit

(53) 187 U. S. 94; 194 U. S. 107.

ted by Congress to the judgment and discretion of the head of a department, his decision therein is conclusive; and even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing."

§ 55. To prevent officers acting under unconstitutional laws. It has long been the practice to allow injunctions against tax officials and the like, acting under unconstitutional laws, where the damage would be irreparable and the other requisites of an injunction are present. In those cases the threatened injury to property is immediate and in the nature of trespass, but of late years there has been a strong tendency to extend the scope of the injunction so as to allow it in cases very far removed from trespass. Thus the courts will enjoin the action of state railroad boards in enforcing rates prescribed by the legislature, where the court considers that the enforcement of the particular rate in question will deprive the railroad of its property without due process of law.

§ 56. Taxpayer's action to restrain unlawful expenditures of money. One of the most frequent uses of the injunction against officers is to prevent the unlawful expenditure of money. Especially is this so in the case of counties and municipalities. Thus in Davenport v. Kleinschmidt (54), where a city council had granted an exclusive right of selling water to the city for a period of twenty years at a minimum rate, it was held that any tax

(54) 6 Montana, 502.

payer, on behalf of himself and others, had the right to institute proceedings in a court of equity to prevent the misapplication of public funds by municipal officers, on the ground that the threatened illegal contracts would increase the burden of taxation and thus burden the plaintiffs. But it has been held that the mere fact that the plaintiff is a resident is not sufficient to entitle him to bring the action (55).

§ 57. To restrain collection of assessment. Injunction is frequently used to restrain the collection of assessments, where the officials have not jurisdiction over the person or the property, or threaten to act in some other way that would be depriving the plaintiff of his property without due process of law. But, where the assessment is clearly illegal, the court may consider that no such injury will result as to call for equitable interference. This was the case in Stuart v. Palmer (56). There an assessment for a local improvement had been made without notice to, or a hearing, or an opportunity to be heard, on the part of the owner of the property to be assessed; and the court held that, if carried out, the effect would be to deprive the owner of his property without due process of law, but it also held that, as the invalidity of the assessment would always appear, it would constitute no such cloud on title as would call for the interference of a court of equity.

§ 58. Exercise of police powers not generally interfered with. Courts of equity are loath to interfere with the enforcement of police regulations, even where they are more or less arbitrary and cause substantial injury. Thus,