
    Mo. Riv., Ft. Scott & Gulf R. R. Co. v. C. S. Wheaton.
    1. Action — Illegal Taxes. A person against whom no illegal tax has been assessed or levied cannot, by injunction, restrain the collection of an illegal tax against another person.
    2. Injunction — When it will not lie. Injunction will not lie to restrain the commission of a pure, simple and naked trespass. If an officer holding a warrant for the collection of taxes assessed against A, levy-said warrant on the property of B, the latter has his remedy by action of replevin against the officer, or by action for damages.
    
      Mrror from Bourbon District Court.
    
    The Missouri Biver, Fort Scott ¿f Gulf Bailroad Company as plaintiffs commenced an action in the district court of Bourbon county to restrain the defendant, G. S. Wheaton, who is sheriff of said county, from collecting certain taxes claimed to be illegal. A motion was made in said case before the judge of said court, at chambers, for a temporary injunction- to restrain the collection of said taxes until the case could be finally heard in court. The judge overruled said motion, and this ruling the plaintiffs assign for error.
    The taxes were assessed against or in the name of the “Western Union Telegraph Company,” and not against the plaintiff; and the warrant held by the sheriff run-against the Telegraph Company, and not against the Railroad Company. The property assessed belonged to the Railroad Company; and they claimed that the assessment was illegal, alleging the same objection as in the preceding case against Morris, (ante, p. 210,) the assessment being made at the same time and by the same board of assessors.
    
      Pratt Sp Blair, for plaintiff in error.
    
      Voss £ French, for defendant in error.
   The opinion of the court was delivered by

Valentine, J.:

The petition below, and the evidence used on the hearing of the motion for a temporary injunction show, or tend to show, that the taxing officers of Bourbon county assessed a tax against the “Western Union Telegraph Company,” on a certain telegraph line running through said county, which did not in fact belong to the said Telegraph Company, but did belong to the plaintiffs; that a warrant was issued by the treasurer of said county against the goods and chattels of the said Telegraph Company, and that the said defendant, as sheriff' of said county, threatened to levy the said warrant on the said telegraph line of the said plaintiffs.

Two questions arise in this case: First, Can the Mo. River, Ft. Scott § Gulf R. R. Co. maintain an action to restrain the collection of an illegal tax assessed agajns^ u Western Union Telegraph Co.? ” Or in other words, can A, against whom no illegal tax has been assessed, maintain an action against the officers of Bourbon county because they have assessed an illegal tax against B ? "We answer this question in the negative ; and without any comment, proceed to the next question. Second: Will an injunction be granted to restrain an officer from levying a tax warrant on the plaintiffs’’ property when the said warrant does not purport to give to the said officer any authority or color of authority to make such levy ? Or, in other words, will injunction lie to restrain the commission of a pure, naked, and eimple trespass ? We must also answer this question in the negative. The said warrant was not against the Bailroad Company, nor against their property, nor against any specific property belonging to any one; but it was simply against the “ Western Union Telegraph Company,” and against the goods and chattels of said Telegraph Company only. Under the warrant the sheriff had the right to levy on any goods and chattels of the said Telegraph Company, but on no other property, nor on the property, of any other person, company, or corporation. If the sheriff" should levy on the property of the railroad company, the railroad company would of course have a cause of action against the sheriff in replevin or for damages, in the nature of an action of trover, or of trespass de bonis asporiaiis ; but they cannot have an injunction to restrain the anticipated trespass. We are not aware that any pure, simple and naked trespass has ever been restrained by injunction. ■ ■

The order and judgment of the court below must therefore be affirmed.

All the Justices concurring.  