14 Kan. 463 | Kan. | 1875
The opinion of the court was delivered by
This was an action to restrain the collection of a tax of seven mills levied to pay certain bonds. An application for a temporary restraining order was refused, and this ruling is the alleged error. It does not appear that any evidence other than the verified petition was presented upon such applieation, though so far as anything in the record is to the contrary there may have been abundance of contradictory testimony. Upon this verified petition ought a temporary restraining order to have been made? The only allegation bearing upon the illegality of the tax is, that the defendant, the county treasurer, is threatening to collect a tax levied on the yeal estate in “Blue Bapids City township for the purpose of paying certain pretended bonds illegally issued for the purpose of building a bridge across the Big Blue river at the foot of Main street, in or near the city of Irving, in the said county of Marshall; and plaintiff further alleges, that the said bonds were never issued by the said Blue Bapids City township, and that neither the hereinbefore described property of this plaintiff, nor any property in the said township of Blue Bapids City, is liable for the said bonds, or any part thereof, and that the said levy of the said tax on the said real estate of this plaintiff, and on all other real estate of said township, is illegal and void at law.” Counsel contend that “the petition shows that the treasurer is attempting to collect a tax which is illegal in two respects, first, that it
We have in several cases of late referred to the fact that often a court is justified in refusing a temporary restraining order, and requiring the plaintiff to wait until the final disposition of the case, even where the preponderance of the evidence on the application is in favor of the right to a restraining order. A preliminary injunction is not a matter of strict right. It is not like an order of attachment, which goes upon the filing of a statutory-affidavit and bond. Its issue rests with the sound discretion of the judge. If the rights of the plaintiff can be as well secured by the final injunction, and are not prejudiced by a refusal of the temporary restraining order, it ought to be refused. If the injuries
For the reason that we are not so advised we cannot say that the district judge erred in refusing the temporary restraining order, and his decision and order of refusal will be affirmed.
It is understood that the case of Means v. Koester is similar to this, and the same judgment will be entered therein.