21 Wis. 44 | Wis. | 1866
As we understand the allegations of the complaint in this case, the suit is instituted to restrain the officers of the Borough oj Ft. Howard from levying upon and selling the personal property of the railroad company for the purpose of collecting a tax. The complaint, after setting forth various matters which we do not deem it necessary now to refer to, contains this material allegation: “That, as the plaintiff is informed “ and believes, the council of said borough have ordered the “said treasxu’er, the defendant Schwartz, to proceed to thecol- “ lection of the whole tax aforesaid, so assessed and levied “ against the said plaintiff; that .the said Schwartz, as such “ treasurer, by virtue of the said warrant and the said order of
Now assuming that, for some or all the reasons stated in the complaint, the tax attempted to be collected is illegal and void, the question arises, should a court of equity interfere by way of injunction to restrain the treasurer from levying upon and selling the personal property of the company to pay this tax ? In other words, should the court interfere to prevent a mere trespass, where the remedy of the injured party would be complete by an action at law ? These questions have, in effect, already been answered in the negative, in the case of Van Cott v. Board of Supervisors of Milwaukee Co., 18 Wis., 247; and it is clear from the authorities that this decision rests upon well settled principles. In our investigations upon this subject, however, we have fallen in with the case of Spencer v. Wheaton, 14 Iowa, 38, where a bill filed to restrain the defendants from selling certain personal property seized for the purpose of paying the complainant’s taxes was sustained; but this case is in conflict with the great weight of authority,'and we áre not disposed to follow it.
That a court of equity will not interfere by injunction to prevent a mere trespass, where there are no peculiar circumstances connected with the parties or the transaction which render the remedy by law inadequate, is an elementary principle of equitable jurisprudence. 2 Story’s Eq. Jur., § 928; also, in addition to authorities referred to in the Van Cott case, see
It is suggested that our statute makes the rolling stock of a railroad company a fixture, and that the court should interfere upon the same ground that it will prevent the creation of a cloud upon the title of real estate. It is true the statute does declare that the rolling stock of a railroad corporation shall be a fixture; but this is obviously for the purpose of enabling such corporations the more readily to give valid liens and mortgages upon their property. But the statute does not contemplate that in respect to all the legal remedies of parties a car or locomotive should be treated as real estate. It would hardly be contended, if the treasurer wrongfully seized a car and sold it to pay the tax mentioned in the complaint, that the company would be required to bring an action of ejectment to obtain possession of its car. And hence, notwithstanding this statute, which for certain purposes makes the rolling stock of the plaintiff a fixture, yet if the treasurer seizes upon such property without authority or legal warrant, he will clearly be liable to an action for the trespass committed by him. And besides, the treasurer may seize other personal property belonging to the company, such as wood or lumber, or something of the kind, to pay the tax. As the complaint does not present a case which would warrant the interference of a court of equity, we think the injunction was properly vacated and set aside by the circuit court.
By the Oourt. — The order appealed from is affirmed, with costs. '
