
    John McCoy v. Corporation of Chillicothe.
    Bill in chancery to obtain a perpetual injunction against collecting a tax assessed in the ordinary way, and unaccompanied by any circumstances of peculiar injury, can not be sustained, even if the law authorizing the tax is unconstitutional.
    This was a bill in 'chancery to enjoin the collection of a tax, assessed by the corporation of the town of Chillicothe, upon the complainant’s mercantile capital. The bill set forth, that the complainant was an importer into the town of Chillicothe, from •Philadelphia,New York, and Baltimore, semi-annually, of merchandise to a large amount, a great proportion of which had been imported from foreign countries. That the merchandise thus imported by him into the State of Ohio was immediately exposed to sale, eiither by wholesale or retail, as best suited his convenience and customers ; that he also purchased, in New York, Philadelphia, and Baltimore, commodities, the manufacture of those cities, and of the States of New York, Pennsylvania, and Maryland, or which had been previously imported into those states from other states of the American Union; that he was also a purchaser at Pittsburg, in Pennsylvania, and at New Orleans, in Louisiana, of like commodities, all of which he imported into the State of Ohio for sale, which, with a very small portion of the products and manufactures of the State of' Ohio, constituted his stock of merchandise, upon which he transacted business as a merchant.
    *The bill further stated, that the mayor and commonalty of the town of Chillicothe on May 21,1827, had passed an ordinance, declaring, amongst other things, that the capital stock of merchants, employed within the corporation, should be subject to taxation for corporation purposes; and that by a subsequent ordinance, the tax of two mills on the dollar of the capital stock of merchants, should be assessed and collected for the year 1827. The bill further stated that the complainant’s capital stock had been rated at twenty thousand dollars, and assessed accordingly, and that the corporation were about to collect the amount, by distress, through the instrumentality of its officer, who was also made defendant. This collection, it was alleged, was contrary to law, and against equity, and prayed an injunction to stop it. The injunction was allowed by an associate judge of the court of common pleas of Ross county. The corporation answered, setting out their authority under their charter, and the laws of the state, to assess the tax in question, which they allege was legally assessed, and setting forth the ordinance assessing the same, and asserting the legal right to collect the amount assessed upon the defendant. The answer admitted the general character of complainant’s importations, except as to the amount of the products and manufactures of Ohio, admitted the intention to collect the tax, and denied the equity of the complainant’s bill. The collector answered, by a reference to the answer of the corporation, and by admitting his intention to collect the tax, unless restrained by injunction.
    Some testimony was taken as to the character of the stock, showing the proportion of it that was of the produce and manufacture of Ohio. But as this fact has no connection with the point decided, it is unnecessary to report it.
    Upon a final hearing, the court of common pleas dismissed the bill, and the complainant appealed to the Supreme Court. The cause was adjourned here for decision from Ross county.
    G-rimke, for complainant:
    The cases in which injunctions are now granted are very numerous. They have multiplied very much in modern *times. Formerly, for instance, waste was the only injury to real property which was enjoined. But now it is granted in innumerable cases of trespass. It is true it is sometimes said the mischief must be irremediable, but, in looking into the cases, we will find that as liberal an interpretation is given to that term as to the word necessary, in McCulloch v. Maryland, 4 Wheat. It may be said that it is impossible to appeal to any similar case in which an injunction has been granted. The answer is, that in England, whence we principally draw our judicial precedents, there is no distinction between the law and the constitution—the law is their constitution. Those few cases, the regency question and the coronation oath, which, in consequence of their solemnity and the importance of the statute on which one of them reposes, have been considered as of the nature of constitutional questions, have only been brought before Parliament. Indeed, it is doubtful whether Englishmen would permit anything fundamental, as they are considered. to be discussed before a forensic tribunal, even if a fit case could be made. In this country, the proceedings in analogous cases have been of a remedial nature, as in Cohens v. Virginia, McCulloch v. Maryland, and Biddle v. Commonwealth, 13 Serg. & R. 405, and, besides, the tax has not been collected by distress, but it has been necessary to determine the question before the levy. It is not asserted that this is a case of injury to personal property, which must be very special in order to authorize an injunction. There are certainly a great abundance of cases where injunctions are awarded, besides injuries to personal or to real property. The prevention of the negotiation of a bill of exchange, or the use of a partnership name, are neither of these classes. Indeed, he who looks for an exact precedent in every case, must be very little aware to what an infinite extent the affairs of men are ramified by experience, and by the ever-varying exigencies of society. The power to grant injunctions, however, in order to prevent a multiplicity of suits, is one which is familiarly exercised by a court of ehancery, and this is precisely that case. It is true the greater number of instances in which it has been exercised have been where a multitude of persons have been concerned ; but in 9 Wheat. 842, the court have extended it to the case of a multitude of suits by one and the same person, and although it *may be said that in that case this principle standing alone was not considered as of sufficient weight to decide the question, but was combined with a number of other considerations; yet it appears from 4 Mod. 135, that the prevention of a multiplicity of suits is, independently of any other consideration, a ground for an injunction. Indeed, that is the way in which the proposition is stated in every book on the subject.
    It is an exceedingly rare thing to find a number of inconveniences made the foundation of a general elementary principle. If one is not sufficient all are not. The greatest inconvenience would result from such a doctrine. What number of injuries must exist, two, three, or four; and in what proportions must they be combined? See 3 Bac. 653; Johns. Ch. Cas. 474. The only two objections of any weight which can be made, are, that the injury is the proper subject of an action of trespass, and that the right ought to be tried at law. The first is answered already, by showing that an individual trespass, and a multitude of trespasses, stand upon very different ground. With regard to the second, the law has been very much relaxed. Formerly, injunctions, in all cases, were preceded by a suit at law; now, if the right is clear, and there are no facts to be tried, they are awarded in the first instance. In 9 Johns. 507, the injunction was granted without the right having been previously tried. It is never necessary to establish the right at law, previously, where it appears of record, or is grounded on an act of the legislature. 9 Johns. 533 Mitf. 129; Coop. 150, 157. It will be admitted that if attempts were ropeat.edly made to collect a tax after a judgment at law, that a court of chancery must then interpose by injunction. But the only reason why it would be necessary to wait, must be because the right does not appear of record, and must, therefore, be tried by jury.
    The court say, in 9 Johns. 571, 588, that there is no necessity for a jury, for “there are no facts in dispute, the right must depend on the validity of the statutes; ” “ the single point is, the constitutionality of the statutes.” So, in page 570, it is said, “the prevention of a multiplicity of suits is one of the most salutary powers of a court of equity.” It may be said that the principle on which the court proceeded *in 9 Wheaton was, that the tax was a violation of the franchise of a corporation. But it may, with the same force, be said, that the case was decided on both principles. The truth is, that both are adduced by the court as singly sufficient to authorize an injunction. He who avers that the first ground {the prevention of a multiplicity of suits) is dispensed with, is bound to prove why the second is not equally dispensed with. There is one view of the subject which is important. It is, that even where a trial at law is deemed expedient, the court of chancery does not dismiss the suit, but only awards a feigned issue to try the fact. 3 Bac. 653. And this course is adopted with more facility in Ohio, under our statute, which gives the court of equity power to summon a jury on the spot, and itself to try the question. So, that even if any facts are to be found, this gets rid of the difficulty. It has sometimes been said that a court of chancery is an improper tribunal to try a constitutional question. And yet, in Livingston v. Van Ingen, 9 Johns., the fact that the validity of the statutes of New York was the only matter in controversy, is assigned by some of the judges as the very reason why the court should retain jurisdiction. The constitutionality of the various laws in contestation, in Osborne v. The Bank, and Gibbons v. Ogden, was as well settled as they could have been in a court of law. It may be said, that although you have a right to restrain Individuals by injunction, yet you can not enjoin a government, or even a subordinate jurisdiction. But it has been conclusively settled, in 2 Johns. Ch. Cas. 162, that there is no difference between the cases. Indeed, the case of Osborne v. Bank of the United States ias determined the same point. And if public officers may be compelled to abstain from carrying into effect the laws of a state, they may be also compelled to desist from executing the ordinances of a corporation. If such were not the case we should have, indeed, imperiumin imperio; and our whole system of government would be a mere jumble of powers instead of a regular and well-defined system, animated by harmonious principles, and presided over by some common umpire.
    Leonard, for respondents:
    We insist that chancery has no jurisdiction over the present controversy.
    ^Instead of the present being a case of great and impending mischief, of lasting destruction, or irreparable ruin, the smallness of the amount in litigation, is a sufficient reason to exclude the action of a court of equity. Moose v. Lytle, 4 Johns. Ch. 183; Fullerton v. Jackson, 5 Johns. Ch. 27, 36.
    It is not the novelty or importance of the principles involved in a controversy, or its constitutional features, which gives chancery the right to interfere. The right is based upon the ground, that an adequate remedy can not be had at law. And when the subject is proper for the recognizance of courts of equity, they will not act if the matter in dispute is trifling. There is no instance where an injunction has been awarded for the sole purpose of restraining trespasses upon personal property. None, where the trespass was on real property, unless in cases of great and impending mischief, tending to irreparable ruin, or of private nuisance; or where there was some distinguishing circumstances existing, as the relation of landlord and tenant, vendor and vendee, etc. I can not do better, than to refer the court to the collection of cases contained in the argument of counsel in Osborne v. Bank of the United States, 9 Wheat. 751-754. The elementary books are equally decisive. Coop. Eq. 150, under the head Demurrers to Relief, section 8, and particularly from page 152 : “ Formerly, in case of trespass, unless it grew into a nuisance, an injunction would have been refused.’ “Lord Thurlow first granted an injunction in a case of trespass, attended with irreparable injury, in working a mine.” That the co.urt never interferes, simply to prevent a trespass on real property, or repeated trespasses; and the multiplicity of suits growing out of the repetition, is most emphatically laid down by Chancellor Kent, in 1 Johns. Ch. Cas. 320, 321. It is not to prevent a multiplicity of suits which may be brought by an individual, but a mub tiplicity by many individuals, that equity interferes. There are a class of suits in which the court interferes to prevent a multiplicity of suits, where the trespasses are unattended with irreparable injury; as in disputes between a lord of a manor and his tenants; between the tenants of two manors, and between a parson and his parishioners. For here, there would be no end to bringing actions of trespass, and therefore a bill of peace maybe exhibited, and the court will direct an issue. *So, where the corporation of York claimed the .exclusive right of fishing upon the Oun, for nine miles together, and this right entangled them with different lords of manors. 2 Atk. 483; 1 Atk. 282; Coop. Eq. 153, 154.
    The cases of Gardner v. Village of Newburg, 2 Johns. Ch. Cas. 162, and Belknap v. Belknap, Id. 463, have been referred to. And it is asked, if the case of Osborne v. Bank of the United States was not determined on the principle that chancery might interfere to prevent a multiplicity of suits? •'Whether it was determined on that principle, and some others combined with it? Whether, if one principle is not sufficient, the addition of two others, neither of which, separately, will suffice, gives equity jurisdiction ? Thai neither of these cases were determined on the ground that chan eery will grant relief in trespasses on real property, is apparent from the fact that Belknap v. Belknap is settled upon a case before Lord Ilardwicke, when all the books say Lord Thurlow was the first who relieved in trespass. The case of Gardner v. Village of Newburg was a case of private nuisance. The principles on which Belknap v. Belknap was settled, appear in the case of Van Bergen v. Van Bergen, 3 Johns. Ch. Cas. 287. “When a statute authorizes commissioners or others to interfere with private property (all the cases relate to real property), and it is charged and shown that they are about to exceed their powers, the case seems not to be governed by the ordinary rulos ; the interference of the court is more prompt, and is called for by greater necessity;” and cites Belknap v. Belknap. All the cases referred to in page 473 of that case are of the same precise character.
    “ The observation of Lord Hardwicke alludes to its pre-eminent utility. This is not the case of an ordinary trespass impending, but one great and special, leading to lasting mischief, and the destruction of the estate, and tending to multiplicity of suits.” It is apparent from the case cited, 1 Johns. Ch. Cas. 320, 321, that multiplicity of suits, arising from the apprehension of repeated trespasses on real estate, is insufficient to authorize chancery to take jurisdiction. The expression “ tending to a multiplicity of suits,” is thrown in as a make weight. It is manifest that the apprehension of a continued repetition by an ordinary trespass, even on *roal estate, will not warrant equity in interfering. It must bo great and special, tending to lasting mischief, and the destruction of the estate. This may be accomplished by one or by many trespasses, and chancery will doubtless act as well in the first as last case.
    In the case of Osborne v. Bank of the United States, the chief justice says, the original bill prays an injunction to restrain the execution of a law, “to be destructive of the rights and privileges conferred upon them by the charter.” The chief justice does not consider it a case of a light and trivial trespass. He considers the law as passed with a view to expel the bank from the state; that if executed it would have that effect, and necessarily deprive the bank of its chartered privileges and franchises. The auditor’s “duty was to be repeated until the bank should abandon the exercise of its chartered rights.” He observes, that the counsel for 'Osborne admit that injunctions are awarded for the protection of parties in their franchises. But these were casos where the restraint had been imposed to prevent the violation by participation. 'To show the fallacy of this distinction, the chief justice remarks: •“ To deprive a party absolutely of his corporate rights and fran■chises is a greater injury than to diminish their value by sharing ’them. The single act of levying a tax in the first instance is the cause of an action at law, but this affords a remedy only for a single act, and is not equal to the remedy in chancery, which prevents its repetition, and protects the privilege. The same eon■■servative principle which induces the court to interpose its authority for the protection of exclusive privileges, to prevent the ■ commission of waste, even in somo cases of trespass, and in many •cases of destruction, will, we think, apply to this.” The whole amount of this is, that the bank has a franchise, a corporate privilege of banking within the State of Ohio, that the state laws will deprive them of this privilege if carried into execution, by expelling the bank from the state, and that therefore the court will prevent the destruction of their franchise, by restraining the execution of the state law. Does any one imagine if the law had assessed only one tax upon the bank instead of an annual tax, the court are to be understood as saying they would not interfere; or, that the court in this instance interfered *simply because this trespass was to be repeated ? The court say chancery ■“ interposes its authority to prevent the commission of waste even in some cases of trespass.” This is an admission that it is not every trespass, nor its repetition, which constitutes a foundation for the jurisdiction of chancery.
    The court does not finally decide the case on these grounds The chief justice says, if the state could have been made a party it can no^be denied this would have been a strong case for an injunction. But in the actual circumstances it is still stronger. Having no remedy against the principal, the court can justly restrain the agent from levying. When the money was collected and paid over, “the remedy against the agent would be for compensation-only,” “ and what agent could make compensation for such an injury ?”
    The chief justice finally concludes, “ the amended bill makes out a clear case. The court will interfere to prevent the transfer of a specific article, which if transferred -will be lost to the owner as negotiable securities and stock.” McCullough v. Maryland, Cohens v. Virginia, and the case cited from 13 Serg. & Rawle, are said to be remedial cases.
    They are all actions at law, and inapplicable as authorities to the present question. Finally, if an injunction can be sustained in the present instance, the whole revenue system of the government, both state and national, and of every political corporation within its limits, may be arpsted, and equity will be bound to- take cognizance of every trespass apprehended, when the trespasser professes to act under the color of any legal authority, whatever it may be.
   By the Court :

The facts set out in the bill and answer present the ordinary caso of a proceeding to collect a tax assessed for the single purpose of revenue. The collection is to be made in the common manner, by the sale of the personal goods of the party. There is no allegation or pretense that, to make the collection by distress, would, in any extraordinary manner, prejudice the complainant. Neither is there any suggestion that the parties complained of are insufficient to respond in damages for the injury they are about to commit,’ should it *be unauthorized by law. No circumstances distinguish the ease from one of a common trespass except that the act sought to be enjoined is about to be committed under color of law. In a mere matter of simple trespass, a court of equity has not yet interfered by an injunction. This is agreed upon both sides, and we are too well satisfied with the doctrine, as it is now settled, to make a precedent for disturbing it.

The pi’oposition that chancery may interfere by injunction to prevent a multiplicity of suits, has no application, that we can perceive, to this case. If the tax was levied by distress, one action at law would setttle the right and secure to the party his redress. If, notwithstanding, another tax were levied, it would be the subject of a single suit. The separate repetition of trespasses, laying a ground for separate suits, between the same parties, is not that description of multiplicity of suits which induces equity to interfere. Where many parties and different rights are involved in the same transaction, all of which can not be legally adjusted without several suits, this state of things is sometimes held a sufficient ground for chancery to interfere. And we are by no means satisfied that what is said, by way of argument, in the opinion, in the case of Osborne v. Bank of United States, warrants the conclusion that equity should take cognizance and jurisdiction between two individuals, where one apprehended a series of trespasses would be committed upon him, for each one of which, if perpetrated, the law gave him a full and adequate remedy.

The bill proceeds upon the hypothesis that the law authorizing the assessment of the tax in question is unconstitutional, and therefore can confer no authority. But this does not make a case for chancery jurisdiction. Whatever may be the principal question in a cause, the attendant circumstances must be such as to give the court jurisdiction of the subject,-or between the parties, before it can be considered or decided. If the ground assumed in the bill is correct, then the collection of the tax is a trespass, and, without the assistance of other facts than are here alleged, the remedy is at law, not in chancery. In the case of Osborne v. Bank of United States, tbe jurisdiction was sustained evidently upon tbe ground that the trespass apprehended, if permitted, would operate the destruction of the bank. The undisguised object of the *act to be enjoined, was to destroy the franchise. For this, tbe court were of opinion compensation in a verdict and judgment for damages would not be a full and adequate remedy, and therefore the preventive remedy of injunction became necessary. This case does not resemble that in any of its features, but the single one that, in both cases, the collection of a tax was tbe subject in controversy. We think tbe jurisdiction can not be sustained upon safe and proper principles. The bill is dismissed on that ground, the other branch of the case not having been considered.  