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tection of the tax payer and the preservation of his rights, is a condition precedent to the legality and validity of the tax. Westfall v. Preston, 49 N. Y. 349; Clark v. Norton, Id. 243.
Where, as was the case here, the formal roll which is presented for the inspection of the tax payers contains no evidence of an assessment against an individual, he has a right to assume that there is no assessment against him. Neither legal duty nor common sense requires him to institute further inquiries. He has a right to assume that the assessors have complied with the law, and that their roll is the complete exhibit of their official action. He is not to suppose that a separate list unknown to the law has been regarded by the assessors as constructively a part of the roll, when in fact it is not a constituent part of it. Practically, as well as theoretically, to permit such a list to be regarded as the assessment roll would be dangerous, and liable to mislead the tax payers and deprive them of the opportunity to obtain a revision of their assessments.
It will not do to say that it should be sufficient as to a particular tax payer when brought to his knowledge. As matter of law, either the list is part of the roll or it is not. If it is not, it cannot be made so by extrinsic circumstances.
I am therefore constrained to hold that the assessment against the shareholders of the complainant was not merely invalid for irregularity, but void, because the assessors failed to observe a condition precedent to their right to assess. And this conclusion must result in granting the injunction asked for. In order, however, that there may be no misapprehension as to the views which lead to this result, it is proper to say that the right of the complainant to the relief stands on a very different footing from that of the several stockholders who have been assessed. If these stockholders were complainants there would be two sufficient reasons for denying them the aid of a court of eqity and the preventive remedy of an injunction. Courts of equity are always reluctant to interfere with the collection of state taxes by the officers entrusted with that duty, and have almost uniformly
refused to do so when the case made rests solely on the illegality of the tax.
As is ruled in Dows v. City of Chicago, 11 Wall. 108, “there must exist in addition special circumstances, bringing the case under some recognized head of equity jurisdiction, such as that the enforcement of the tax would lead to a multipllcity of suits or produce irreparable injury," etc., etc. Upon this consideration the stockholders would not be entitled to an injunction. But there is another ground upon which such relief would be refused them. In dealing with the rights of parties to resist taxation, courts of equity proceed upon considerations quite unknown to courts of law, and hold not only that it must appear the tax is one unlawfully imposed, but also one that justice and good conscience do not require the party to pay.
An illustration in point is found in Mitchell v. Com'rs of Leavenworth, 91 U. S. 206, where a complainant had converted his cash or deposit into United States notes before the day of listing taxes, in order to escape taxation, and being taxed, notwithstanding, the court held that although the tax was illegal, it would not, while sitting as a court of equity, use its extraordinary powers to assist him in a scheme to escape taxation, and dismissed the bill. In the present case I am unable to doubt that the stockholders understood that the assessors intended to assess their stock, and had made an informal assessment roll for that purpose. The statute required the complainant to deliver a list for the use of the assessors, and required the assessors to assess the shareholders in the ward where the bank was located; and it is not alleged in the bill or affidavits that a single stockholder was ignorant that he was assessed, or was in any way misled because the assessment was indicated upon a list and not upon the common roll. In short, it is not claimed that any shareholder was actually prejudiced by the failure of the assessors to conform to the strict requirements of the statute. Furthermore, it is stated in defendant's affidavits that the mode adopted by the assessors of keeping a separate list for the assessment of bank shareholders was publicly known,
and was the same which had been followed by the assessors for the city of Albany for many years, and was followed generally by assessors throughout the state.
Such being the facts, it must be assumed that the stockholders of the complainant preferred, instead of contesting the justice or equity of the assessment by seeking to have it reviewed and corrected, to rely upon their strict legal rights. I do not mean to impugn the personal good faith of the stockholders. Doubtless they believed that the law under which' the assessment was made was in conflict with the act of congress, and that any assessment would be void for the reasons urged as the first ground for an injunction. But, as has been shown, that ground was not tenable, and if the stockholders were now seeking aid in equity because the assessors failed to give them the notice of the assessment required by law, they would be defeated upon the ground that as they were not in fact misled, and not unjustly assessed, they should be held to their strict legal rights, and not entitled to the intervention of a court of equity. They would, therefore, be relegated to their remedy at law.
But the rights of the complainant rest upon another footing. It is required, as has been stated, to withhold dividends from its shareholders to such extent as may be necessary to pay any taxes assessed against them. Some of its shareholders appeared before the board of assessors and were relieved from assessment. Many other shareholders did not attempt to be relieved, but now fall back upon their right to insist that the tax is illegal, and refuse to permit the complainant to retain their dividends. The complainant is thus exposed to a multiplicity of suits by these stockholders. If it pays over the dividends, the shares of many of its stockholders may be seized and exposed to sale. If the complainant transfers the stock to purchasers, it does so at the peril of maintaining the legality of the sale. On the other hand, if it refuses to pay the dividends to the shareholders, and resists their suits, the burden and expense of the litigation will fall upon those stockholders who have been relieved of their assessments as well as upon the others. The case, therefore,
is one where the court must intervene to prevent a multiplicity of suits. Cummings v. Nat. Bank, 101 U. 8. 157; Nat. Albany Ex. Bank v. Hills, 5 FED. REP. 248.
The defendant insists that the complainant should resort to a certiorari for redress, under chapter 269 of the Laws of New York of 1880. If the assessment here were one against the bank, that act would afford a convenient remedy, and it might be urged that the complainant has an adequate remedy at law. But as the assessment is not against the bank, I cannot see how the act applies to the present case.
An injunction is granted.
TEXAS EXPRESS Co. v. TEXAS & PACIFIC Ry. Co.
TEXAS EXPRESS Co. v. INTERNATIONAL & GREAT NURTHERN
(Circuit Court, N. D. T'eras, March 22, 1881.)
1. RAILROADS-EXPRESS COMPANIES-DISCRIMINATION-CONTRACT.
A contract to furnish daily such an excessive and unnecessary amount of space, in the cars of a railroad company, for the transportation of the express matter of any one person or corporation, as will disable such railroad from serving others equally entitled to be served
in the same manner, is illegal and void. 2. SAME-SAME-SAME-SAME.
Such a contract must be so framed as to adjust the rate of compen. sation to the number of persons and quantity (and perhaps quality) of matter transported, and to the length of the haul, and so as not to discriminate in favor of one or more companies or persons doing an express business against another or others engaged in a similar busi
8. REASONABLE MAXIMUM RATES - EXPRESS MATTER -- Tex. Rev. ST.
ARTS. 4256, 4257,
Articles 4256 and 4257 of the Texas Revised $tatutes, “establish. ing reasonable maximum rates of charges for the transportation of passengers and freight on railroads," provide, inter alia, as follows:
"Art. 4256. No railroad company shall demand or receive for transporting a passenger over its line of road exceeding five cents for each mile or fraction of a mile it may transport such passenger."
"Art. 4257. Railroad companies may charge and receive not exceed.
ing the rate of 50 cents per hundred pounds per hurdred miles for the transportation of freight over their roads, but the charges for transportation on each class or kind of freight shall be uniform, and no unjust discriminations in the rates or charges for the transportation of any freights shall be made against any person or place, on any railroad in this state: * provided, that when the distance from the place of shipment to the point of destination of any freight is 50 miles or less, a charge not exceeding 30 cents per hundred pounds may be made for the transportation thereof."
Held, that these statutory provisions were not intended to fix the reasonable maximum rates of charges for the transportation of the messengers and freight of express companies.- ED.
F. E. Whitfield and White & Plowman, for the express company.
J. A. Baker and Welborn, Leake & Henry, for the railroads.
McCORMICK, D. J. The complainant in these bills, after setting out its corporate existence, citizenship, and powers, and the customary and well-known usages of its business, and the nature of the trade done by express companies and by the complainant company, and also setting out the corporate existence, citizenship, powers, and duties of the defendant corporations, shows in substance that the complainant has for a number of years past, and up to the presentation of its bill, been doing business on the lines of the defendants railroads under contracts made and modified from time to time by the respective parties, and that recently both defendant corporations have given the complainant such notices (set out in the bill) as indicate a determination on the part of said defendants to terminate the contracts upon which complainant has been and is doing business on said lines; and plaintiff avers that in giving said notices said defendants had in view to lay a foundation for the ejection of complainant's express business from said railways, claiming and intending to assert the right in defendants to do the express business thereon themselves, or, excluding all other express companies, make an exclusive contract with one only.
Complainant shows the extent and irreparable injury that would result to it from such action as the defendants' conduct is averred to threaten, and prays in substance and with