Judd v. Town of Fox Lake

DixoN, C. J. The motion here being equivalent to a demurrer to the complaint for want of equity or want of jurisdiction, the question presented is, whether the complaint states any sufficient ground of equitable cognizance, or for relief by the writ of injunction. Tbe case differs from Peck v. School District, 21 Wis., 516, and Whiting v. Railroad Company, 25 Wis., 167, chiefly relied on by counsel for the plaintiffs, as also from any heretofore decided by this court. In Peck v. School District, a contract had, in fact, been entered into by the officers of the district with a third person, which was apparently authorized by law, but was, in reality, unauthorized, because no vote of a majority of the qualified voters had been given at the annual or any special meeting. It was held that equity had jurisdiction of the suit of a resident freeholder and [586] tax-payer to annul tbe contract tbus purporting to bind tbe district, but wbicb, in fact, if binding at all, bound only tbe officers wbo executed it, and to declare tbe same void as against tbe district and tax-payers. In Whiting v. Railroad Company, tbe action was to restrain and prevent tbe execution and delivery of certain securities negotiable in tbeir nature, and wbicb, if executed and passed to tbe bands of bona fide holders for value, would become obligatory against tbe county notwithstanding tbeir original infirmity, or tbe want of constitutional power in tbe board of supervisors to execute them. Tbe instruments, when executed, would be apparently valid, tbe defect or want of power not being shown on tbeir face. It was, therefore, a case of irreparable mischief or injury but for tbe interference of chancery, and tbe prevention of wbicb constitutes one of its acknowledged beads of jurisdiction. Tbe other cases in this court where it has been held that chancery will interfere to stay proceedings for tbe collection of a tax, are all such as range themselves under another distinct bead of equity jurisprudence. They were all suits in tbe nature of a bill guia timet, to remove a cloud from tbe title to real estate, where, upon tbe face of tbe proceedings to impose tbe tax, or by operation of law, tbe tax was an apparently valid lien on tbe land, and extrinsic evidence was required to show its invalidity. Under our statutes, a tax upon real estate becomes a lien thereon from tbe time of its assessment and extension upon tbe tax roll; and if, for any cause not apparent on tbe face of tbe proceedings, it is illegal, or invalid, tbe owner may, at any time after such assessment and extension, maintain bis action to have tbe same adjudged invalid and to remove tbe cloud from bis title. ; But tbe present case differs materially from all these. It is not the case of an apparently valid contract entered into by tbe officers of tbe corporation, but wbicb is in reality invalid by reason of some extrinsic defect; not one of tbe impending, un [587] authorized execution and delivery by the officers of negotiable paper which, in the hands, of a holder for value without notice, will become valid and obligatory against the corporation; and not one where any apparent lien has been created or cloud exists upon the title to real estate. It is, supposing the resolution of the voters in town meeting to have been unauthorized, and the proposed tax illegal, at most a mere anticipated or threatened invasion of the legal rights of the plaintiffs, which as yet has ripened into nothing injurious or detrimental to them at all, and perchance may never do so, but which, if it ever should, would not in its nature be irreparable, but might be redressed by the ordinary processes known to courts of law and equity. Should the officers of the town attempt to carry the resolution into effect, and assess a tax wholly unauthorized and illegal, as the complaint charges, the plaintiffs will have their action at law to recover back the money if paid under protest or on levy or distress of personal property; and if the same be extended against their real estate, they will also have their suit in equity to remove the supposed lien and cloud from their title. The complaint presents, therefore, the naked question, whether under such circumstances the aid of equity can be successfully invoked to declare in advance that certain acts of public officers, proposed or threatened in the future to be done, will, if performed, be illegal and void. We are clearly of opinion that it cannot. The general principle that equity possesses no power to revise, control, or correct the action of public, political or executive officers, or bodies, is of course well understood. It never does so at the suit Of a private person, except as incidental and subsidiary to the protection of some private right, or the prevention of some private wrong, and then only when the case falls within some acknowledged and well defined head of equity jurisprudence. It is upon this principle that bills to restrain the collection of a tax have in general been dismissed. Mooers v. Smedley, 6 Johns. Ch., 28; The Mayor v. Meserole, 26 Wend., 132; Wiggin v. The Mayor, 9 Paige, 16; Van Doran v. [588] The Same, id., 388; Life Insurance Co. v. The Supervisors, 4 Duer, 192; Heywood v. The City of Buffalo, 14 N. Y., 534; Susquehanna Bank v.Supervisors, 25 N. Y., 312; Dows v. Chicago, 11 Wallace, 108, and cases there cited. But there are other reasons why equity will refuse its aid in a case like this, and which are most ably pointed out in the opinions in Doolittle v. Supervisors, 18 N. Y., 155, and in Sparhawk v. Railway Co., 54 Pa. St., 401. The grounds are too remote, intangible and uncertain, and the public inconvenience which would ensue from exercise of the jurisdiction would be enormous. It would lie in the power of every tax-payer to arrest all proceedings on the part of the public officers and political bodies in the discharge of their official duties, and, assuming to be the champion of the community, to challenge them in its behalf to meet him in the courts of justice to defend and establish the correctness of their proposed official acts before proceeding to the performance of them. A pretense more inconsistent with the due execution of public trusts and the performance of official duties could hardly be imagined. We refer the reader to the above opinions for a statement in full of the objections to this sort of jurisdiction, and of the reasons upon which they are founded., They are quite satisfactory to us so far as the case we are now considering is con-' cerned, which is altogether like that of Doolittle v. Supervisors. It may be that the reasoning of Judge Deitio in the latter case ■goes somewhat farther than we are required to go in this, or than he or the court were required to go in that; and that in some respects it seems to conflict with the two decisions of this court first above referred to, namely, Peck v. School District, and Whiting v. Railroad Company. It must be remembered, however, that no case calls for any expression of opinion beyond the facts contained in the record, and that all beyond, whether said arguendo or by way of illustration, is not authority. No question was there presented or considered like those decided by this court, and we are not aware of any decisions in that [589] state in wbicb tbe contrary bas been. beld. Looking at tbat case, therefore, upon tbe facts presented and tbe real question involved, we fully assent to tbe correctness of tbe decision, and we see nothing in it in conflict with our own already made. In fact it will be found, we think, upon careful examination of tbat and tbe other cases above referred to in tbe court of appeals, Heywood v. The City of Buffalo, and Susquehanna Bank v. Supervisors, tbat there is no want of harmony between tbat court and this upon tbe questions wbicb have been respectively considered by each. It follows from these views tbat tbe order dissolving tbe temporary injunction, and from wbicb this appeal is taken, must be affirmed. By the Court. — Order affirmed.