
    W. C. PEACOCK, et als., v. W. H. WRIGHT, as Treasurer, and J. W. PRATT, as Assessor and Collector of the Division of Honolulu, Territory of Hawaii.
    Decided: September 8, 1902.
    1. The Legislature of Hawaii has th© general power to legislate upon all questions of taxation in relation to providing a local system of revenue to carry on the government of the Territory of Hawaii, the only limitation being that such legislation shall not he “inconsistent with the Constitution and laws of this United States, loyally applicable,” and where said Legislature has enacted a local Income Tax Law, the United States District Court will not interfere by injunction to restrain the collection of taxes assessed under said law, where complainants have an adequate remedy at law.
    2. The Organic Act passed by Congress for the government of the Territory is the fundamental law of the Territory of Hawaii; and by the, provisions of that Act the legislative power of the Territory is extended to “all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States, locally applicable.”
    3. 'A territorial' legislature 'has all the powers of a State legislature, except as limited by the Organic Act of the Territory, the Constitution of the United States and the Acts of Congress, and. ■these powers include the power to tax for local purposes, which is inherent in all governments.
    4. The avoidance of a multiplicity of suits given a» a ground of equitable jurisdiction, is not such a multiplicity of suits as is contemplated in equity, where it appears that no one of the eomplanants would be subjected in any event to more than one action, either to recover from him the amount of an assessment found' due under a. territorial income -tax law, or to recover back 'any moneys paid by him under ©otar of legal process.
    5. Where a bill in equity was filed by a number of complainants im the United States District Court against the Assessor and Tax Collector of the Territory of Hawaii, praying for an injunctions, against the said Assessor and Tax Collector, enjoining and restraining him from collecting from the complainants, or any one' of them, the assessments claimed to be due under an Act of the-Legislature of the Territory of Hawaii, known as the Income Tax Law (Act 20 Session Laws 1901, page 31) on the ground, that tlhe said law is unconstitutional land void; and alleging a general and common interest in the subject matter of the-action by the complainants, and that they join in the ’action, in order to avoid a multiplicity of suits; upon a demurrer filed to-said bill upon the ground that the same does not state such facts as to entitle the complainants to the relief prayed for, and that' they and each of them have an adequate remedy at law, the demurrer was sustained and the case dismissed, the Court holdmgr (1) That no equitable jurisdiction was shown to exist in. the court to entertain the bill; (2) that each of the complainants had a. ■complete and adequate remedy at law in an action to recover from the Assessor and Tax Collector of the Territory of Hawaii! any moneys that may be paid by them, or any of them, to said’ Tax Collector under the compulsion of legal process; (3) that the’ Legislature of the Territory of Hawaii was acting within the general powers conferred upon it by Congress in the enactment of the' said Income Tax Law, and this Court will not entertain a bill to enjoin the collection of the tax.
    In Equity. Application roe Injunction. Demurrer to Bill-
    
      Thomas Fitch, attorney for certain complainants.
    
      J. J. Dwvne, attorney fon? certain complainant®.
    
      
      Robertson <& Wilder and E. P. Dole, Attorney General of The Territory of Hawaii, attorneys for defendants.
   Estee, J.

A bill in equity was filed in this Count by com■plainants, praying this Court to enjoin the respondents therein ■from collecting or attempting toi collect from the complainants or any one of them any moneys whatever upon assessments 'under am Act of the Legisla,toe of the Territory of Hawaii of 1901, known as the Income Tax Law; and ato praying the further order of this Court that it declare the said so-called Income 'Tax Law unconstitutional and void.

Before the 'hearing a motion to amend the bill in •equity was made -and granted, whereby the mame of W. II. Wright, as the Treasurer, was stricken from said bill as one ■of the defendants therein, and the, name of S'. Roth & Go. as ■one of the complainants. The bill as amended is therefore di- ■ reefed only to the defendant, J. W. Pratt, as the Assessor1 and Tax Collector of the Honolulu Division of the Territory of Ha•waii.

The hill sets forth the fact that complainants are residents :and doing business in Honolulu, Territory of Hawaii; that in the year 1901, the Legislature of the Territory of Hawaii en.acted Act 20, Session Lav's of 1901, P. 31, known as the Income Tax Law; that the said law was at the tame of its en;actment, and ewer since has been, and now is, invalid, iinoonsti■tutional and void and in violation of tire Constitution of the Hnitecl States, and especially of the Fourteenth Amendment ■.to said Constitution.

The bill further alleges that, notwithstanding the invalidity ■of the law, tire Treasurer of the Territory approved a form of return of income tax, and that L. W. Pratt, as Assessor for The Division of Honolulu, required and compelled eourplain;ants, and each of them, to< malí© and return to Mm, and that they did each make and return to’ him under compulsion, and to avoid -the penalties prescribed in the Act, sworn statements ■of the income of the complainants, and each of them, for the year commencing July 1, 1901, and ending July 31, 1902.

That the gross income returned as aforesaid by the complainants, amounts to more than the sum of two million one hundred and forty-seven thousand dollars; that the net ineome returned as aforesaid, amounts to' the sum of four hundred and two thousand, eight hundred and thirty-four dollars; that the income tax on the same amounts to' the sum of eight thousand and fifty-six and 68-100 dollars, and that the said assessor and collector will, unless enjoined by thei order of this court, collect from thesie complainants the said amount.

The complainants further allege that if they should pay the tax to the assessor under protest, and it should afterwards be determined that the said law is unconstitutional and void, they •oould not procure a return of the money so paid, for in the meantime, under the system of finances adopted in the territory, the money received from complainants, would have been paid out to persons having demands, on the treasury of Hawaii.

Certain other allegations ate made as to the condition of the treasury of Hawaii, which do not seem material to thei case; the hill finally stating that the complainants have, no adequate remedy at law; that they have a common and general interest in the subject matter of the action and will be similarly affected by the result thereof, and in order to avoid a multiplicity of ■suits they join herein.

The demurrer filed on behalf of J. W. Pratt, as Assessor and •Collector of the Division of Honolulu, Territory of Hawaii, is based upon two grounds, namely:

1. “That the complainants have not in and by their said hill made or stated such a case as entitles them, or any of them, to any relief from or against the defendant touching the matters contained therein;, and

2. “That the complainants are not entitled to sustain said bill for the reason that they have a full, complete 'and adequate remedy at law.”

The Income Tax Law was passed by the Legislature of the 'Territory of Hawaii on the 30th day of April, 1901, and provided for the levy of taxes for territorial and local purposes only. The ordinary tax laws of the territory evidently did not produce sufficient revenue for thei support of the local giovenuneiit, and therefore the Legislature passed the Act complained of, providing for the levy and collection, of this tax upon incomes.

There is no question in this, case as to the power of thei Legislature of the Territory of Hawaii to1 pass general taxation laws. Under the Act of Congress entitled “An Act to provide a government for the Territory of ITawaii, passed by the 56th Congress of the United States of America, on the 27th day of April, 1900, and approved on the, 30th day of April, 1900,” and which, under its terms, took effect, on June 14, 1900, it is provided (Section 55 thereof):

“That the legislative power of the territory shah extend to all rightful subjects’ of legislation not inconsistent with the Constitution and laws of the United States locally applicable1.”
“Eightful subjects] of legislation” are those subjects upon which legisla,tures have beien in the practice of acting with the consent and approval of the people they represent. Maynard v. Hill, 125 U. S. 190, 204; Cope v. Cope, 137 U. S. 682; State v. Tutty, 41 Fed. 753, 758.

The power to tax is in its very nature inherent in all governments, and is, under our political system, vested in the various legislatures, and in Congress for certain national taxes, limited only by constitutional provisons. And it has been held by the Supreme Court of the United States that a territorial legislature has all the powers of a State legislature except -as limited by its organic act, the Constitution of the United States and the Acts of Congress. See Walker v. New Mexico & S. P. R. R. Co., 165 U. S. 593; Board of Trustees of Vincennes University v. State of Indiana, 14 How. (U. S.) 268; Miners’ Bank v. State of Iowa, 12 How. (U. S.) 1; Williams v. Bank of Michigan, 7 Wend. (N. Y.) 539; Swan v. Williams et al., 2 Mich. 427.

Therefore, taking into1 consideration these gfeueral principles, 'and the decisions of the Courts, and in addition thereto, the language of Section 55 of the Organic Act, which is the fundamental law of the territory, (National Bank v. County of Yankton, 101 U. S. 129), tibiera can be no: question, as to the general power of tbei Legislature of Hawaii to legislate upon all questions of taxation in relation to providing a local system of revenue to carry on the governmietnt of the territory of Hawaii; the only limitation being that such legislation shall not be “inconsistent with the Constitution and laws of the Hnited States, locally applicable.” The passage of the Act complained of was imdoubteidiy within- such legislative power subject to the constitutional and congressional restrictions referred to'.

This being clear it alone remains for me to consider whether this count sitting as a court of chancery has .the power or jurisdiction -to enjoin the collection of this territorial tax which was regularly levied under an act of the territorial legislature, while acting within its general powers granted by Oomginess. Can this be dona even if such act is imoonstitmtional and void? I do mot think it can. It certainly cannot he done if there is an adequate remedy at law; and it seems clear* to the court that in this case there is a complete and adequate remedy at law.

One of the chief reasons given for equitable relief in this case is, the avoidance of a multiplicity of suits; that each of the complainants would ha obliged in the event that he were to pay the tax under protest upon the ground -that the same was illegal, to bring an action for the recovery of the sum so paid; or that in the event that each of the complainants refused to’ pay the taxes each would be subjected to a suit by the tax collector and assessor for the collection of the same; all of which might as it is claimed, he avoided by the determination of the question of the legality of the tax by a count of equity.

But is the multiplicity of suits- that complainants claim may he avoided by this court taking action, such multiplicity as is contemplated in equity? No one of these complainants would he subjected to more than one suit, either upon a, refusal to' pay or a payment under protest and a oonSieqnent suit to recover. This principle is stated most succinctly and clearly in the case of Dodd v. Hartford, 25 Conn. 232, 238, a case in which a joint petition was filed to restrain the collection from several complainants, of sewer assessments made upon their lands severally, and which were claimed to be illegal: the Court there saying:

“The multiplicity of suits which the petitioner seeks to- avoid does not injuriously affect any one of the petitioners. No one of thorn haa occasion to -expect any such multiplicity of suits affecting himself. One suit is all that any one of them has to fear, and the object of 'this bill would seam to be to relieve these parties severally from that one suit, and to> consolidate the apprehended litigation. In other words, to enforce a consolidation rule by means of the extraordinary powers of the courts of chancery. If the assessment ware against one person, only, it is not -claimed that ha could transfer from a court of law to a court of equity the question of his liability. But ho-w is the condition of any -one -of these petitioners the worse, because others are assessed for the same improvement?”

The court saying further: “It would undoubtedly be convenient to try the question relating to these warrants in one comprehensiva law suit. But it does not seem to the court that the case presented by the bill is -one of such irreparable injury or of inadequate relief at law as to- warrant us in taking it away from the legal tribunals.”

See also Cooley on Taxation, paga 516.

In the case -of Arkansas Building and Loan Association v. Madden, 175 U. S. 269, Mr. Chief Justice Fuller said:

“The rule is that the collection of taxes under’ state authority will not he enjoined by a court -of the United States on the sole ground that the tax is illegal; but it must appear that the party taxed has no- adequate remedy by ordinary process of law, and that there are special circumstances bringing the case- within some recognized head of equity jurisdiction.”

Pittsburg & C. Railway v. Board of Public Works of W., Va., 172 U. S. 32; Shelton v. Platt, 139 U. S. 591; Dows v. City of Chicago, 11 Wall U. S. 108, 112.

And the Court saying further, in the said case of Arkansas Building & Loan Association v. Madden, Supra, that—

“On principle, title interference of the courts: of the United States by inj traction with tibe collection, of sf-atiei taxes......can only be justified in a plain ease not otherwise remediable.”

And finally held in that ease that “the bill of complaint did not set forth any facts tending to show that complainants could not escape the forfeiture by payment of the $205 under protest and recover back the money soi paid, if the law should be held void. We assume that the payment would, under the circumstances, be compulsory and mot voluntary and no reason is perceived why the rule permitting recovery back would not apply.”

Im 'the case of Dows v. City of Chicago, Supra, one of the earliest cases im which this principle is enunciated, and which is followed by the later decisions, Judge Field said:

“The party of whom am illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection, or the body to whom the tax is paid......If the tax was illegal, the plaintiff protesting against its enforcement, might have had his action after it was paid, against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its; collection; nor would he have been compelled to resort to a multiplicity of suits to determine his rights.”

The law seems to be clear that when a person by -the compulsion of the color of legal process, pays moneys unlawfully demanded, or is deprived of his property by seizure-, he may recover it back. Elliott v. Swartout, 10 Pet. (U. S.) 137; Bend v. Hoyt, 13 Pet. (U. S.) 263; Philadelphia v. Collector, 5 Wall (U. S) 720, 731; Swift Company v. United States, 111 U. S. 22; Arkansas Building and Loan Association v. Madden, 175 U. S. 269.

Again: It is pa escribed by Section 3224 of the Kevised Statute of the United States that—

“No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”
“Any court” undoubtedly refers to any court of tbe United States and comprehends this court. And I assume that the words “restraining the assessment or collection of any tax” means any tax prescribed by the Congress of the United States. Indeed it was held in State Railroad Tax Cases, 92 U. S. 575, quoting from pages 613, page® 613, 614, that—
“Although this (referring to Section 3224) was intended to apply alone to taxes levied by the United States it shows tbe sense of Congress of the evils to be feared if courts of justice could, in any ease, interfere with the process of collecting taxes on which tire government depends for its continued existence.”

The court going on further to show that there must be some other .equitable ground of relief before it will interfere-by injunction with the assessment or collection of a tax and stating that it will require “a clear case for equitable relief before it will sustain an injunction against the collection of a tax which is part of the revenue of a state.”

The reason why the courts have so uniformly refused to restrain the collection of taxes whether illegally assessed or not unless it be shown that tire circumstances of each case brings it within some well known branch of equity jurisdiction, rests chiefly in the fact that such injunctions are attacks upon the other independent and co-ordinate branches of government, and such injunctions would if lightly issued, operate as a restraint upon all government.

. In this case no fraud is alleged, nor is there any other equitable point called to the attention of the court save the avoidance of a multiplicity of suits, which doe® not seem to the court to be a fact.

Let the demurrer be sustained and1 the bill dismissed with costs assessed to complainants.

Note: Affirmed on appeal. See Peacock v. Pratt, etc., 121 Fed. 770.  