
    [Filed June 10, 1885.]
    HIRAM BROWN et al. v. SCHOOL DISTRICT NO. 1 et al.
    Illegal Tax—Injunction.—Where the legality of a tax is disputed as to a part only, it is the duty of a plaintiff before bringing a suit to enjoin the collection of the disputed portion to pay or tender the part admitted to be valid. Otherwise his complaint will be dismissed.
    Id.—Payment undeb Peotest.— One who is compelled to payan illegal tax may pay the same under protest and recover it back by a proper proceeding.
    Clatsop County. Plaintiffs appeal.
    Affirmed and complaint dismissed without prejudice.
    
      O. PI. Page, for Appellants.
    
      G. W. Fulton, for Respondents.
   Thayer, J.

The respondents in the court below filed an answer to the appellants’ complaint, setting out all the facts in reference to the issuance of said bonds, and the objects for which they were issued, and the levy of said tax. The appellants filed a demurrer to the said answer, upon the grounds of the illegality of the bonds, which, having been overruled, and a decree entered dismissing the appellants’ complaint, the latter has brought this appeal, and desires this court to adjudge the said bonds a nullity. The respondents, on the other hand, claim that the bonds are valid; that the school district issued them in order-to raise money to build a school-house, and that the money has been received by the district, and the house built. It will be noticed that the larger part of the tax is unquestionably legal. The one and one third mills for school purposes, and the one half mil] for the purpose of making necessary improvements to the school-house block, are unobjectionable, and it appears to this court that the appellants should have paid so much of said tax as is applicable to those purposes before^ they commenced their suit. It would render it, no doubt, very embarrassing to the affairs of the school district if the court were to interfere and enjoin the collection of the entire tax. If the appellants had paid off the portion admitted to be legal they would have done equity before asking its interposition in their behalf. The authorities are not uniform upon the question as to whether or not a plaintiff’s complaint should be dismissed in such a case, but this court is of the opinion that that is the better rule. If the appellants are obliged to pay the portion of the tax they claim to be illegal, they will not necessarily lose the amount paid. They can pay it under protest, in order to relieve their properly, and if it be illegal can recover it back.

As to whether said bonds are good or valid the court expresses no opinion at this time, as it is not necessary to the disposition of the case under' the view entertained.

For the reasons'mentioned, the decree appealed from will be affirmed, and the complaint dismissed, without prejudice.  