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to the sections treating this subject. Other remedies open to the taxpayer are statutory provisions having for their purpose an abatement of the tax, its review by certain designated administrative bodies, or the special remedies of certiorari,63 mandamus 64 or prohibition which have been already considered in previous sections. The general principle however obtains that, for obvious reasons, courts of equity will not interfere, except in extreme cases, in the levy and collection of taxes, although this rule is relaxed in connection with the levy and collection of municipal taxes.

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§ 1158. Waste of public property.

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A taxpayer or property owner has also the undoubted right to prevent by injunction public authorities from wasting or illegally disposing of public property, or to restrain the diversion or mis

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62 Bush v. Coler, 60 App. Div. 56, 69 N. Y. Supp. 770. Sufficiency of pleading. Nalle v. City of Austin (Tex. Civ. App.) 21 S. W. 375; Nevil v. Clifford, 55 Wis. 161; Beyer v. Town of Crandon, 98 Wis. 306, 73 N. W. 771. Sections 1128 et seq., ante.

63 Cunningham V. Borough of Merchantville, 61 N. J. Law, 466, 39 Atl. 639. Writ refused on the ground of laches. Sections 1122 et seq., ante.

64 Sections 1107 et seq., ante. 65 Allen v. Baltimore & O. R. Co., 114 U. S. 311; City of Montgomery v. Sayre, 65 Ala. 564; Floyd v. Gilbreath, 27 Ark. 675; Town of Lemont v. Singer & T. Stone Co., 98 Ill. 94; Stilz v. City of Indianapolis, 81 Ind. 582; South Platte Land Co. v. Crete, 11 Neb. 344, 7 N. W. 859; Covington v. Town of Rockingham, 93 N. C. 134; Willard v. Comstock, 58 Wis. 565.

66 State Railroad Tax Cases, 92 U. S. 575. "Whether the same rigid rule should be applied to taxes lev

ied by counties, towns, and cities, we need not here inquire; but there' is both reason and authority for holding that the control of the courts, in the exercise of power over private property by these corporations, is more necessary, and is unaccompanied by many of the evils that belong to it when affecting the revenue of the state."

67 Chamberlain v. City of Tampa, 40 Fla. 74, 23 So. 572; Knight v. Village of Thompsonville, 74 Ill. App. 550. Suit may be brought by a taxpayer to recover property belonging to a corporation which has been disposed of without authority of law. Hutchinson v. Skinner, 21 Misc. 729, 49 N. Y. Supp. 360. Proper parties to such an action considered. Lee V. Jefferson

County Sup'rs, 62 How. Pr. (N. Y.) 201. A taxpayer, however, cannot through his statutory rights liti gate questions already adjudicated.

Bush v. Coler, 60 App. Div. 56, 69 N. Y. Supp. 770; Furey v. Town of Gravesend, 104 N. Y. 405. One

appropriation of property which a public corporation holds, acquired either by private gift or through the use of public moneys as a trustee for special uses and purposes.68 This right in some states is definitely given by statute.69

Prevention of illegal contract. In accord with this same principle, it has been held in many cases that private persons may oppose and prevent the making of illegal contracts which involve the use of public moneys or property 70 or the granting of licenses and privileges by public legislative bodies which, although apparently within their discretionary powers, yet in effect result in a waste, misappropriation, or misuse of public funds or property."1

§ 1159. Recovery of tax.

The right of a taxpayer to recover a tax, whether general or a local assessment wrongfully collected by some taxing body, is

not a resident and therefore having no interest in the common lands of the town has no standing in court in an action to restrain the town from disposing of them.

Peppard v. City of Cincinnati, 6 Ohio N. P. 57. But see People v. New York & M. B. R. Co., 84 N. Y. 565.

68 McIntyre v. El Paso County Com'rs, 15 Colo. App. 78, 61 Pac. 237. Use for another purpose of land dedicated for a city park can be enjoined.

Rutherford v. Taylor, 38 Mo. 315; Lawrence v. City of New York, 2 Barb. (N. Y.) 577; Wenk v. City of New York, 36 Misc. 496, 73 N. Y. Supp. 1003. See, also, §§ 815, 816, 1133 and 1135, ante. But see Smith v. Heuston, 6 Ohio, 101.

69 Paul v. City of New York, 46 App. Div. 69, 61 N. Y. Supp. 570; Barnes v. McGuire, 33 Misc. 438, 68 N. Y. Supp. 485.

70 Mock v. City of Santa Rosa, 126 Cal. 330, 58 Pac. 826; City of Louisville v. Gosnell, 22 Ky. L. R.

1524, 60 S. W. 411; Grand Island Gas Co. v. West, 28 Neb. 852, 45 N. W. 242; Terry v. Gleason, 21 Misc. 368, 47 N. Y. Supp. 741; Van Allen v. Dunton, 24 Misc. 230, 52 N. Y. Supp. 626; Feeley v. Wurster, 25 Misc. 544, 54 N. Y. Supp. 1060; Knowles v. City of New York, 37 Misc. 195, 75 N. Y. Supp. 189; Hendrickson v. City of New York, 160 N. Y. 144, 54 N. E. 680, affirming 38 App. Div. 480, 56 N. Y. Supp. 580; Pugh v. Edison Elec. Light Co., 19 Ohio Circ. R. 594. Taxpayers may, by laches, forfeit their right to equitable relief in such a case. City of Defiance v. Council of Defiance, 23 Ohio Circ. R. 96; Siegel v. Town of Liberty, 111 Wis. 470, 87 N. W. 487.

71 Talcott v. City of Buffalo, 57 Hun, 43, 10 N. Y. Supp. 370; Adamson v. Union R. Co., 74 Hun, 3, 26 N. Y. Supp. 136; Norris v. Wurster, 23 App. Div. 124, 48 N. Y. Supp. 656; Barhite v. Home Tel. Co., 50 App. Div. 25, 63 N. Y. Supp. 659. See, also, State v. Murphy, 134 Mo.

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generally a matter of statute where the necessary procedure is prescribed. The right, whether statutory or otherwise, is depenent upon the existence of certain fundamental essentials which include as the important ones the condition that the tax must be utterly illegal and void; 73 that it must have been paid by the complainant under compulsion to some official charged by law with the duty of collecting it, and received by the corporation from which it is sought to be recovered,75 and that the plaintiff is not prevented through a previous election of remedies from prosecuting the action under consideration.

548, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132. A municipal corporation is not estopped from denying the validity of a contract ultra vires.

72 Bibbins v. Clark, 90 Iowa, 230, 57 N. W. 884, 59 N. W. 290, 29 L. R. A. 278. See Cooley, Taxation (2d Ed.) pp. 804 et seq., with many cases cited.

73 Rogers v. Inhabitants of Greenbush, 58 Me. 390; Wright v. City of Boston, 63 Mass. (9 Cush.) 233; Hicks v. Inhabitants of Westport, 130 Mass. 478; Moore v. City of Albany, 98 N. Y. 396. Cooley, Taxation (2d Ed.) p. 808. "Irregular action does not necessarily injure the parties concerned; and where it does, the remedies given by review or repeal are supposed to afford full redress. Any further remedy must proceed upon the idea that the tax is void; a mere nullity."

74 Russell v. City of New Haven, 51 Conn. 259. The same rule applies to a penalty paid without protest.

McGehee v. City of Columbus, 69 Ga. 581; Phillips v. Jefferson County Com'rs, 5 Kan. 412; Smith v. Inhabitants of Readfield, 27 Me. 145; Welton V. Merrick County

Com'rs, 16 Neb. 83; Taylor v. Board of Health, 31 Pa. 73. Cooley, Taxation (2d Ed.) p. 809. "Every man

is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the state should furnish him with legal remedies to recover it back. All pay ments are supposed to be voluntary until the contrary is made to appear."

As to character of protest see the following: Union Pac. R. Co. v. Dodge County Com'rs, 98 U. S. 541; Patterson v. Cox, 25 Ind. 261; Durham v. Montgomery County Com'rs, 95 Ind. 182; City of Muscatine v. Keokuk Northern Line Packet Co., 45 Iowa, 185; Peebles v. City of Pittsburgh, 101 Pa. 304.

75 Lauman v. Des Moines County, 29 Iowa, 310; Stone v. Woodbury County, 51 Iowa, 522, 1 N. W. 745; Dickey v. Polk County, 58 Iowa, 287, 12 N. W. 290; Noyes v. Inhabitants of Haverhill, 65 Mass. (11 Cush.) 338; Slack v. Town of Norwich, 32 Vt. 818; Phillips v. City of Stevens Point, 25 Wis. 595.

§ 1160. Power to sue.

The right and power of a public corporation to sue generally exists without the grant of special authority 76 though this may be necessary." Claims and demands whatever their nature may be enforced by use of the remedies and under the procedure governing the private litigant.78 The power to sue includes as a subordinate or lesser right the power to compromise a claim." The action or proceeding must be brought or authorized, however, by

76 Wolffe v. State, 79 Ala. 201; El Dorado County v. Meiss, 100 Cal. 268, 34 Pac. 716; Park v. Modern Woodmen of America, 181 Ill. 214, 54 N. E. 952. A city has no power to maintain a suit in behalf of any of its residents. Polk County v. Sherman, 99 Iowa, 60, 68 N. W. 562; Lawrence County v. Chattaroi R. Co., 81 Ky. 225; Town of South Portland v. Town of Cape Elizabeth, 92 Me. 328, 42 Atl. 503; United States v. Vietor, 16 Abb. Pr. (N. Y.) 153; Lancaster County v. City of Lancaster, 160 Pa. 411, 28 Atl. 854; Greenville County v. Runion, 9 S. C. (9 Rich.) 1; Palestine Water & Power Co. v. City of Palestine, 91 Tex. 540, 44 S. W. 814, 40 L. R. A. 203; Salt Lake County v. Golding, 2 Utah, 319; City of Janesville v. Milwaukee & M. R. Co., 7 Wis. 484.

77 Colusa Co. V. Glenn County, 117 Cal. 434, 49 Pac. 457; Carroll County Sup'rs v. Georgia Pac. R. Co. (Miss.) 11 So. 471; State v. Travis County, 85 Tex. 435, 21 S. W. 1029; Day v. Johnson (Tex. Civ. App.) 33 S. W. 676. But see Nye v. Kelly, 19 Wash. 73, 52 Pac. 528.

78 Marion County v. McIntyre, 2 McCrary, 143, 10 Fed. 543; Gaston v. State, 88 Ala. 459, 7 So. 340; Brown v. State, 5 Colo. 496. A state may maintain an action of

ejectment. City of Chicago V. Wright, 69 Ill. 318. Municipal authority may maintain ejectment against any one who wrongfully endangers or occupies public property. Cedar County v. Gray, 90 Iowa, 11; Esley v. People, 23 Kan. 510; Com. v. Carter, 21 Ky. L. R. 1509, 55 S. W. 701; Inhabitants of Alna v. Plummer, 3 Me. (3 Greenl.) 88; Lincoln County v. Magruder, 3 Mo. App. 314; State v. Metschan, 32 Or. 372, 41 L. R. A. 692; State v. Evans, 33 S. C. 184, 11 S. E. 697.

79 People v. San Francisco City & County Sup'rs, 27 Cal. 655; Ernst's Adm'rs v. Ernst, 1 Ill. (Breese) 316; Agnew v. Brall, 124 Ill. 312, 16 N. E. 230; Grimes v. Hamilton County, 37 Iowa, 290; Labette County Com'rs v. Elliott, 27 Kan. 606; Clark v. Village of Davison, 118 Mich. 420, 76 N. W. 971; State v. Martin, 27 Neb. 441; Paret v. City of Bayonne, 39 N. J. Law, 559; Orleans County Sup'rs V. Bowen, 4 Lans. (N. Y.) 24; Hulburt v. Defendorf, 58 Hun, 585, 12 N. Y. Supp. 673; Village of Ft. Edward v. Fish, 86 Hun, 548, 33 N. Y. Supp. 784; O'Brien v. City of New York, 40 App. Div. 331, 57 N. Y. Supp. 1039, affirmed 160 N. Y. 691, 55 N. E. 1098; City of Springfield v. Walker, 42 Ohio St. 543; Smith v. Borough of Wilkinsburg, 172 Pa. 121, 33 Atl. 171; City of

that officer or official body charged by law with the exercise of this particular power,80 and the same rule applies to the comproImise of a claim.81

§ 1161. Parties plaintiff.

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Through the acts of a person, natural or artificial, public interests may suffer injury or a wrong may be done which places them in danger. These acts may thus injuriously affect either the public, considered as a whole, or in a collective sense, or the injury may be of such a character as to affect not only public interests but also the rights or the interests of a private individual considered separate from his relation to the public at large as a part of it. The principle therefore obtains that where the public

San Antonio v. San Antonio St. R. Co., 22 Tex. Civ. App. 148, 54 S. W. 281; Dix v. Town of Dummerston, 19 Vt. 262. But see McCague v. City of Omaha, 58 Neb. 37, 78 N. W. 463; Morey v. Town of Newfane, 8 Barb. (N. Y.) 645. See, also, City Item Co-operative Printing Co. v. City of New Orleans, 51 La. Ann. 713.

80 Missouri v. Luce, 62 Fed. 417; Winne v. People, 177 Ill. 268, 52 N. E. 377; State v. City of Neodesha, 3 Kan. App. 319; Daviess County v. Daviess County Gravel-Road Co., 23 Ky. L. R. 711, 63 S. W. 752; Succession of D'Aquin, 9 La. Ann. 400; Waldo County v. Moore, 33 Me. 511; City of Rockland v. Ulmer, 87 Me. 357, 32 Atl. 972; People v. Navarre, 22 Mich. 1; Chicaga, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N. W. 97; Lincoln St. R. Co. v. City of Lincoln, 61 Neb. 109, 84 N. W. 802. The presumption exists that an action brought by a city in its corporate name by its proper law officers is authorized until the contrary appears. Ft. Covington V. United States & C. R. Co., 8 App. Div. 223,

40 N. Y. Supp. 313, affirmed 156 N. Y. 702, 51 N. E. 1094. The question of authority cannot be collaterally raised.

Meigs v. Roberts, 42 App. Div. 290, 59 N. Y. Supp. 215; City of Seattle v. McDonald, 26 Wash. 98, 66 Pac. 145; Mills County v. Lampasas County (Tex. App.) 40 S. W. 552. The bringing of an unauthorized action may be subsequently ratified. City of Milwaukee v. Herman Zoehrlaut Leather Co., 114 Wis. 276, 90 N. W. 187; Town of Woodman v. Bohan, 91 Wis. 36, 64 N. W. 323.

81 City of Marshall v. Cleveland, C., C. & St. L. R. Co., 80 Ill. App. 531; Town of Kankakee v. Kankakee & I. R. Co., 115 Ill. 88; Olp v. Leddick, 59 Hun, 627, 14 N. Y. Supp. 41; City of San Antonio v. San Antonio St. R. Co., 22 Tex. Civ. App. 148, 54 S. W. 281.

82 Town of Laconia v. Gilman, 55 N. H. 127; Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007; State v. Bartlett, 35 Wis. 287. Under Wis. Const. art. 7, § 17, all criminal prosecutions are to be in the name of the state.

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