the doctrine above mentioned, and the grounds upon which it rests, in the light of some of the leading judgments of the courts, the better to see its scope, limitations, and application.1 1 Equity has the power to restrain the collection of taxes, where fraud has occurred, or on proper case made, where the assessment or levy is without legal authority. Infra, secs. 923, 924, and cases; First Nat. Bank of Shawneetown v. Cook, 77 Ill. 622 (1875); Brandriff v. Harrison Co., 50 Iowa, 164; Dupage Co. Sup. v. Jenks, 65 Ill. 275; Riley v. Western Union Tel. Co., 47 Ind. 511 (1874); Lebanon v. O. & M. R. R. Co., 77 Ill. 539 (1875). The doctrine of the text was approved and applied by Pardee, J., in the case of the Liberty Bell, where the city of New Orleans was enjoined, at the suit of a taxpayer, from appropriating city funds to pay for the transportation of the old Liberty Bell from Philadelphia to New Orleans for a centennial exposition in the latter place. The learned judge well observed :"Municipal corporations exhibit the highest patriotism in obeying the laws made for their government." The Liberty Bell (Bayle v. N. O.), 23 Fed. Rep. 843 (1885). See, also, Harrington v. Plainview, 27 Minn. 224; Willard v. Comstock, 58 Wis. 565; Lynch v. Eastern La. F. & M. Ry. Co., 57 Wis. 430 (to enjoin delivery of railway aid bonds); Robertson v. Breedlove, 61 Tex. 316 (restraining issue of bonds by a county); Richmond v. Crenshaw, 76 Va. 936, and cases cited; followed Shenandoah Valley R. R. Co. v. Clarke County, 78 Va. 269; Roper v. McWhorter, 77 Va. 214; Sackett v. New Albany, 88 Ind. 473; Butler v. Detroit, 43 Mich. 552; Scott v. Alexander, 23 S. C. 120 (aldermen required to pay the costs personally in an action restraining them from increasing the municipal debt beyond the statutory limit). The municipal corporation itself was held not to be entitled to invoke a court of equity to restrain the collection of a tax by State and county officers upon private property within its limits, though the tax was levied to pay its bonds alleged to be illegal. Waverly v. Auditor, 100 Ill. 354. To entitle a party to relief in equity, he must bring his case under some acknowl. edged head of equity jurisdiction; the mere illegality of the tax without more, or the threat to sell property for its satisfaction, is generally held not to be sufficient, but the authorities on this point are not uniform, since some courts will, at the instance of the taxpayer, enjoin the collection of any tax or assessment that is admitted or clearly shown to be illegal or void. Dows v. Chicago, 11 Wall. 108; Hunnewinkle v. Georgetown, 15 Wall. 547; Ala. Gold L. Ins. Co. v. Lott, 54 Ala. 499; Montgomery v. Sayre, 65 Ala. 564; Lemont v. Singer, &c. Stone Co., 98 Ill. 94; Corrothers v. Clinton Dist. Bd. of Ed., 16 W. Va. 527; Mobile v. Baldwin, 57 Ala. 61; Sav. & L. Soc. v. Austin, 46 Cal. 415; Porter v. Rockford, R. I. & St. L. R. R. Co., 76 Ill. 561 (1875); Elkton Land Co. v. Ayers, 62 Ala. 413; C. B. & Q. R. R. Co. v. Siders, 88 Ill. 321; Columbia Co. Comm'rs v. Bryson, 13 Fla. 281 (1871); Floyd v. Gilbreath, 27 Ark. 675; Heywood v. Buffalo, 14 N. Y. 534; McDonald v. Murphree, 45 Miss. 705; Sayre v. Tompkins, 23 Mo. 443; Barrow v. Davis, 46 Mo. 394; U. P. R. R. v. Lincoln Co., 2 Dill. C. C. 297; Weaver v. State, 39 Ala. 535; Cook County v. Chicago, B. & Q. R. R. Co., 35 Ill. 460. But see post, secs. 923, 924; Williams v. Pinney, 25 Iowa, 436; Jeffersonville v. Patterson, 32 Ind. 140; Burnes v. Atchison, 2 Kan. 454; Warden v. Fond du Lac Co. Sup., 14 Wis. 618; and the payment of such portion as is alleged to be legal may be made a condition precedent to the granting of the relief sought. Deeflir v. Bowen, 61 Ind. 29. "The collection of a legal tax will not be restrained to prevent the enforcement of an illegal one." Covington v. Rockingham, 93 N. C. 134; London v. Wilmington, 78 N. C. 109; Stilz v. Indianapolis, 81 Ind. 582. See also High on Injunctions, sec. 498; more fully, infra, secs. 923, 924, and notes as to restraining the collection of illegal taxes. A resident cannot enjoin the collection of license tax for which he is liable, but a city may enjoin him from carrying on his § 915. Same subject. Rationale of Doctrine; Author's View. The doctrine of the preceding section is also supported by an analogy supplied by a settled rule of equity applicable to private corporations. In these the ultimate cestuis que trust are the stockholders. In municipal corporations the cestuis que trust are in a substantial sense the inhabitants embraced within their limits. In each case the corporation, or its governing body, is a trustee. If the governing body of a private corporation is acting ultra vires or fraudulently, the corporation is ordinarily the proper party to prevent or redress the wrong by appropriate action or suit in the name of the corporation. But if the directors will not bring such an action, our jurisprudence is not so defective as to leave creditors or shareholders remediless, and either creditors or shareholders may institute the necessary suits to protect their respective rights, making the corporation and the directors defendants. This is a necessary and wholesome doctrine. Why should a different rule apply to a municipal corporation? If the property or funds of such a corporation be illegally or wrongfully interfered with, or its powers be business until he pays it (New Orleans v. Becker, 31 La. An. 644), upon the ground that he might by appeals, &c., protract the litigation for a long period of time, and thus carry on his business without paying tax, and after tedious litigation there might be no property out of which to collect it. Ib. The author directs attention to the decision below cited of the United States Supreme Court, as to the equitable conditions which should be met before a court of equity will enjoin the collection of taxes. State Railroad Tax Cases, 92 U. S. 575 (1875). Suggested distinction between enjoining local and municipal taxes and State taxes levied for general revenue. Parmley v. St. L., I. M. & S. R. R. Co., 3 Dillon, 25 (1874). Where a city had disregarded the forms prescribed in its charter for the letting of wharves and in not inviting competition by publication or otherwise, and had passed an ordinance authorizing a lease of wharves upon terms disadvantageous to itself and its inhabitants, the Supreme Court of Louisiana held that individual taxpayers suing for themselves, and others in a like situation, had a standing in court in an action to prevent the execution of the lease and to annul the ordinance. Handy v. New Orleans, 39 La. An. 107. To same effect Conery v. New Orleans Water Works Co., 39 La. An. 770. A city may be enjoined from selling land dedicated as a common, at the suit of an inhabitant whose individual rights as to his own property are threatened. Cummings v. St. Louis, 90 Mo. 259; see ante, chap. on Dedication. Where a city had reached the limit of indebtedness permitted by its charter, it was enjoined from carrying out a contract for its water supply which might have made it liable for a large increase. Davenport v. Kleinschmidt, 6 Mont. 502; see ante, chap. xiv. on effect of transcending the authorized limit of indebtedness; infra, sec. 919, note. The plaintiff in an action to contest the validity of an election authorizing the issue of county bonds for erecting public buildings, is not entitled merely upon his verified petition, as a matter of right, to a temporary injunction restraining the issue of the bonds. Johnv. Wilson County, 34 Kan. 670; supra, sec. 912, note; post, sec. 919, note; Richmond v. Davis, 103 Ind. 449 (action to enjoin the unauthorized expenditure of corporate funds or making a bad investment of them). See post, secs. 919, 923, notes. son misused, ordinarily the action to prevent or redress the wrong should be brought by and in the name of the corporation. But if the officers of the corporation are parties to the wrong, or if they will not discharge their duty, why may not any inhabitant, and particularly any taxable inhabitant, be allowed to maintain in behalf of all similarly situated a class suit to prevent or avoid the illegal or wrongful act? Such a right is especially necessary in the case of municipal and public corporations, and if it be denied to exist, they are liable to be plundered, and the taxpayers and property-owners on whom the loss will eventually fall are without effectual remedy. § 916. Same subject. Judgment of the Supreme Court of the United States. — This doctrine has received, since the foregoing sections were written, the weighty sanction of the Supreme Court of the United States. It is said by Mr. Justice Field, in delivering the judgment of the court, that "of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they, in common with other property-holders of the county, may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the State courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere, upon the application of the taxpayers of a county, to prevent the consummation of a wrong, when the officers of these corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the State or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate power. The courts may be safely trusted to prevent the abuse of their process in such cases.”1 1 Crompton v. Zabriskie, 101 U. S. 601 (1879), per Field, J., approving text; followed in The Liberty Bell, 23 Fed. Rep. 843; noted supra, sec. 914, note; S. P. Normand v. Otoe Co. Comm'rs, 8 Neb. 18; Page v. Allen, 58 Pa. St. 338; Webster v. Harwinton, 32 Conn. 131; Oliver v. Keightley, 24 Ind. 514; Valparaiso v. Gardner, 97 Ind. 1 (1884); Terrett v. Sharon, 34 Conn. 105; Merrill v. Plain field, 45 N. H. 126; Drake v. Phillips, 40 Ill. 388; Wade v. Richmond, 18 Gratt. (Va.) 583; Douglass v. Placerville, 18 Cal. 643; Stevens v. Rutland & B. R. R. Co., 29 Vt. 546; Gifford v. N. J. R. R. & T. Co., 10 N. J. Eq. 171; Baltimore v. Gill, 31 Md. 375; Hooper v. Ely, 46 Mo. 505. See, also, Patterson v. Bowes, 4 Grant (Can.), 170; West Gwillimbury v. Hamilton & N. W. R. R. Co., 23 Grant (Can.), 383; Cooley on Taxation, chap. xxiv.; 1 Pomeroy Eq. Juris. secs. § 917 (732). Same subject. State Court Decisions; Connecticut. -The Supreme Court of Connecticut, in holding that a citizen and taxpayer of an incorporated city is entitled to an injunction to restrain an illegal or wrongful appropriation of the money of the city, says in substance that this is so because the city corporation holds its moneys for the corporators, the inhabitants of the city, to be expended for legitimate corporate purposes; and a misappropriation of these funds is an injury to the taxpayer, for which no other remedy is so effectual or appropriate. If the money is taken out of the treasury, one person cannot well sue either the city or the person who receives the money for his proportion, and it is impracticable for all to unite in such a suit. And when the amount thus misappropriated is subsequently needed for legitimate purposes, a citizen cannot resist the necessary tax to raise the same because the corporation had at a prior time misappropriated money.2 259-270. In Iowa a mere taxpayer cannot question the power of a city to grant an exclusive right to construct and operate water-works. Dodge v. Council Bluffs, 57 Iowa, 560; Grant v. Davenport, 36 Iowa, 396. Ante, chap. xviii. The proper remedy against applying part of a city tax to payment of an indebtedness in excess of the constitutional limit is by an action to restrain, not its collection, but its misapplication. Strohm v. Iowa City, 47 Iowa, 42. A citizen and taxpayer held not to be entitled to enjoin a city council from entering into a contract to light the streets without showing that he would sustain injury by the proposed action. Searle v. Abraham, 73 Iowa, 507 (1887). If county bonds are issued and placed in the hands of individuals for a railway company, before performance of the conditions upon which they were voted, they being improperly in such persons' hands, any disposition of them, except delivering them back to the county authorities, may be enjoined. Jackson Co. Sup. v. Brush, 77 Ill. 59 (1875). 1 Washington v. Harvard, 8 Cush. (Mass.) 66 (1851); post, chap. xxiii. sec. 751. 2 New London v. Brainard, 22 Conn. 552 (1853) (appropriating money to celebrate the Fourth of July). Approved, Harney v. Indianapolis, 32 Ind. 244; ante, sec. 149. Scofield v. Eighth School District (illegal use of school-house), 27 Conn. 499, 504, applying the same principle to the misappropriation of corporate property; Webster v. Harwinton, 32 Conn. 131; Terrett v. Sharon, 34 Conn. 105; Jacksonport v. Watson, 33 Ark. 704; The Liberty Bell, 23 Fed. Rep. 843; noted, supra, sec. 914, note; approving text. Though money has been illegally voted by a city or town, and though the petitioners are entitled to resort to equity to restrain illegal appropriations, yet if they have been guilty of gross laches, and have knowingly permitted third persons to incur liabilities in good faith, relying upon such appropriation for reimbursement, an injunction will be denied. Tash v. Adams, 10 Cush. (Mass.) 252 (1852); s. P. Stew. art v. Kalamazoo, 30 Mich. 69; People v. Maynard, 15 Mich. 463. But parties in whose favor the illegal vote was made, though they incurred expenditures on the faith of it, are not third persons in the meaning of the principle. Claflin v. Hopkinton, 4 Gray (Mass.), 502. Compare New London v. Brainard, supra; Hodges v. Buffalo, 2 Denio (N. Y.), 110. See Index, tit. Ultra Vires. If an appropriation of money be made for two objects, one lawful and the other not, and it cannot be distinguished and separated, the whole will be held void; otherwise the court will enjoin or relieve against the expenditure which is unlawful. Roberts v. New York, 5 Abb. (N. Y.) Pr. R. 41; Howes v. Racine, 21 Wis. The same § 918 (733). Same subject. Maryland Decision. doctrine has been expressly sanctioned by the Court of Appeals in Maryland, in a case in which it was held that residents and taxpayers of a city might file a bill in equity to restrain the corporation and its officers from taking steps to carry out a city ordinance creating a debt in violation of the Constitution.1 Mr. Chief Justice Bartol, in giving the judgment of that tribunal, observed that "in this State the courts have always maintained with jealous vigilance the restraints and limitations imposed by law upon the exercise of power by municipal and other corporations. If the right to maintain such a bill as this be denied, citizens or property-holders would be without adequate remedy to prevent the injury which might result to them from the unauthorized or illegal acts of the municipal government or its officers and agents." § 919 (734). Same subject. Decisions elsewhere. So elsewhere, and because that the remedy in equity is more direct, speedy, and effectual than by certiorari, it is held that equity will entertain jurisdiction of a bill on behalf of taxpayers to enjoin the misapplication of the moneys of the corporation. Based upon such considerations,2 it has been well decided that one or more taxpayers, 514; Jacksonport v. Watson, 33 Ark. Wade v. Richmond, 18 Gratt. 583 (1868); 704, approving text. County supervisors cannot, without the aid of legislative authority, pay a debt, though meritorious if it had been legally contracted, which is not legally obligatory upon the county. People v. Stout, 23 Barb. 349. See ante, secs. 75, 454; infra, sec. 919. 1 Baltimore v. Gill, 31 Md. 375, 395 (1869) (ante, sec. 130); approving New London v. Brainard, supra, and Merrill v. Plainfield, 45 N. H. 126; and disapproving Roosevelt v. Draper, 23 N. Y. 318, and Doolittle v. Broome Co. Sup., 18 N. Y. 155, mentioned below, sec. 920. See, also, in Maryland, Frederick v. Groshen, 20 Md. 436; Baltimore v. Porter, 18 Md. 284 (1861); Kelly v. Baltimore, 53 Md. 134; cited infra, sec. 922, note. See Coulson v. Portland, Deady, 481. 2 Colton v. Hanchett, 13 Ill. 615; Place v. Providence, 12 R. I. 1, approv ing text; Mt. Carbon C. & R. R. Co. v. Blanchard, 54 Ill. 240 (1870); Sherlock v. Winnetka, 59 Ill. 389 (1871); Follmer v. Nuckolls Co. Comm'rs, 6 Neb. 204 (1877); Harney v. Indianapolis, 32 Ind. 244; Madison v. Smith, 83 Ind. 502; Richmond v. Davis, 103 Ind. 449; infra, sec. 923. See, also, Sherman v. Carr, 8 R. I. 431 (1867); Newmeyer v. Mo. & Miss. R. R. Co., 52 Mo. 81 (1873); s. c. 14 Am. Rep. 394, and note, holding that a bill by taxpayers of a county in the name of themselves and all the other taxpayers of the county to annul an illegal railroad subscription by the county court was well brought, and that the State was not a necessary party. Any citizen and taxpayer may prevent the issue and sale of void bonds by a municipal corporation. Delaware Co. Comm'rs v. McClintock, 51 Ind. 325 (1875); Livingston Co. Sup. v. Weider, 64 Ill. 427 (1872); Allison v. Louisville, H. C. & W. Ry. Co., 9 Bush, 247 (1872); Bound v. Wis. Cent. R. R. Co., 45 Wis. 543; Wright v. Bishop, 88 Ill. 302; Cole v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 Ill. 160; Marshall v. Silliman, 61 Ill. 218; Beauchamp v. Kankakee Co. Sup., 45 Ill. 274; Drake v. Phillips, 40 Ill. 392; Sherlock v. Win |