Issue and equitable relief be rightly granted within the recognized principles of equity, because here the complainant was not a resident of the city nor subject to taxation therein. His personal property was not by law subject to be ared by the municipality; he was a resident of and assessed in and paid taxes to the Town of Wauwatosa, and there discharged all the burdens which the law imposed upon him and upon his property with respect to the State, with respect to the county, with respect to the town, and with respect to the public schools. The officers of the municipal corporation of Milwaukee had absolutely no jurisdiction over him or his property, because they had lawful jurisdiction only as to personal property owned by residents of the city. Under such circumstances equity will intervene to prevent the enforcement of the unauthorized and illegal proceeding. Barber v. Farr, 54 Iowa, 57 and cases cited. Brandirf v. Harrison Co. 50 Iowa, 164; Beveryv. Sabin, 20 Ill. 357; Ottawa v. Walker, 21 610: Darling v. Gunn, 50 Ill. 424; Munv. Miller, 66 Ill. 380; Lebanon v. Ohio & M. R. R. Co. 77 11. 539; Kimball v. Merchants Sr. L. & T. Co. 89 Ill. 611; Union Trust Co. Weber, 96 11. 357; Commissioners v. Markle, 45 Ind. 96; Knight v. Turnpike Co. 45 Ind. 139 Shoemaker v. Grant Co. 36 Ind. 175; Riley W. U. Tel. Co. 47 Ind. 511; School Board App. 74 Pa. St. 252; Dodge v. Woolsey, 18 How. 3159 U.S.bk. 15, L. ed. 401); Dorn v. Fox, 61 N. 264: Mohawk & H. R. R. R. Co. v. Clute, 4 Paize, Ch. 384; Gould v. Atlanta, 55 Ga. 678; R. B. Co. v. Wyoming, 1 Wyoming, 96; Home v. Green, 52 Miss. 452; Blakeslee v. Murphy, 44 Con 188; Lapene v. McCan, 28 La. Ann. 749; Ranson v. Reid, 50 Ala. 69; Grass v. Hess, 37 led 193; Earl v. Matheney Co. 60 Ind. 202; Smith. Pearce, 6 Baxter, (Tenn.) 72. Mr. Justice Miller delivered the opinion of the court: equity, in the matter of which plaintiff complains, and asks that this action be dismissed.' Replication being filed, the case was heard on these issues, and on a considerable mass of testimony as to the question of residence in Milwaukee. On the hearing it appears that the judges of the circuit court, assuming that complainant was not a resident of that City, were divided in opinion on the question of the jurisdiction of the court as a court of equity, to grant relief. This question they present to us in the following certificate: "The case coming on to be heard at this term upon the pleadings and proofs, it occurred as a question whether a bill in equity to set aside and restrain the collection of a personal tax or a tax levied upon personal property by a municipal corporation can be maintained on the sole ground of the illegality of the tax by reason of the nonresidence within the limits of such municipality of the person against whom the tax is levied. On which question the opinions of the judges were opposed. Whereupon, on motion of the plaintiff, by his counsel, that the point on which the dis agreement hath happened may during the term be stated under the direction of the judges and certified under the seal of the court to the supreme court to be finally decided, it is ordered that the foregoing state of the pleadings and the following statement of facts, which is made under the direction of the judges, be certitied according to the request of the plaintiff by his counsel, and the law in that case made and provided, to wit: That Charles A. Koffler, the plaintiff, in 1882, when the assessment and levy of tax against him on account of personal property were made, was not and for several years prior thereto had not been a resident of the City of Milwaukee, but was and had been a resident of the Town of Wauwatosa, in the County of Milwaukee, Wisconsin." [220] This is an appeal from the Circuit Court for the Eastern District of Wisconsin. In accordance with the opinion of the presid- [222] The bill, originally filed in a state court and ing justice, a decree was made setting aside the afterwards removed into the Circuit Court of assessment of the tax and enjoining the City the United States, prayed for an injunction to and its officers from collecting it. restrain the collection of a tax assessed by the We are of opinion that both this cour and Tassessed against him as a resident of that ted to a contrary doctrine. As complaint alleges that he did not reside in [78 U. S. bk. 20, L. ed. 65], was a bill in equity Rere, adds: And for a further and separate answer and being a resident of Chicago, but of New York, as the defendant alleges and shows unto his personal property belonged to his domicil, court that the plaintiff, if he is able to and any tax levied on it by the City of Chicago moneyed capital in the city, and because, not prve the allegations of his complaint herein, was void. as a complete and sufficient remedy at law; | that for this reason this court, as a court ground that a court of equity had no jurisdicequity, should not and will not interfere, as- tion to give relief, for the reasons stated in the o take jurisdiction of this action, and the bill. The bill was dismissed on demurrer, on the It will be observed that in that case, as dant objects for that reason to any and in this, the tax was resisted as a tax on the per interference of this court, as a court of son on account of personal property, upon the 116 C. S. ground that the party assessed did not reside | gation of fraud, that it creates a cloud upon the within the city, and the corporation, therefore, had no power to tax him. The property for which the tax was assessed was in each case intangible property. In the first case it was bank shares, the certificates of which were undoubtedly held at the residence of Dows in New York; and in the present case it was for money loaned on mortgages. Looking at the case then made by the bill, one in which the assessment of the tax was not only irregular but void, the court, in the lan[223] guage of Mr. Justice Field, said: [224] "Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass and bringing the case under some recognized head of equity jurisdiction before the preventive remedy of injunction can be invoked. It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments; and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the of ficers upon whom the duty is devolved of collecting the taxes may derange the operations of government, and thereby cause serious detriment to the public. No court of equity will therefore allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or, where the property is real estate, throw a cloud upon the title of the complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised, or was waived." The opinion contains an examination of the adjudged cases, by which the proposition is sustained, in one of which, that of Cook County v. Chicago, etc. R. R. Co. 35 Ill. 465, the general principle is well stated by the Supreme Court of Illinois, namely: "that while a court of equity would never entertain a bill to restrain the collection of a tax, except in cases where the tax was unauthorized by law, or where it was assessed on property not subject to taxation, it had never held that jurisdiction would be taken in those excepted cases, without special circumstances showing that the collection of the tax would be likely to produce irreparable injury or cause a multiplicity of suits." In the case of Hannewinkle v. Georgetown, 15 Wall. 547 [82 U. S. bk. 21, L. ed. 231], the principle is thus stated: "It has been the settled law of the country for a great many years that an injunction bill to restrain the collection of a tax, on the sole ground of illegality of the tax, cannot be maintained. There must be an alle title, that there is apprehension of a multiplicity of suits, or some cause presenting a case of equity jurisdiction. This was 'ecided as early as the days of Chancellor Kent, in Mooers v. Smedly, 6 Johns. Ch. 28, and has been so held from that time onward." In the State Railroad Tar Cases, 92 U. S. 575, 613 [Bk. 23, L. ed. 663, 673], these decisions are reviewed with others, and the whole question very fully considered, as the impor tance of the cases and the ability of the counsel who argued them required; and after citing the language in Dows v. Chicago, and Hannewinkle v Georgetown, the court adds: "We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of taxes; but we may say that in addition to illegality, hardship or irregularity the case must be brought within some of the recognized foundations of equitable jurisprudence, and that mere errors or excess in valuation or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of the taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax." An intimation in the opinion in that case to the effect that, in cases of taxes assessed by counties, towr3 or cities, a more liberal use of the control of courts of equity may be neces sary, has been cited in the brief in the present case as affording ground for sustaining the injunction here. But no class of cases was there mentioned as justifying this interference, and it is evident that the mere facts that the tax was levied by a local corporate body, and was also illegal, were not in themselves supposed to be sufficient; for the cases cited in the sentences preceding that remark, of Dows v. Chicago and Hannewinkle v. Georgetown, were both cases of taxes by towns, to which the doctrine of the restricted powers of a court of equity was applied. The rule against the interference of a court of equity, and the exceptions to the rule are restated with careful accuracy in the very recent case in this court of the Union Pacific Railway Co. v. Cheyenne, 113 U. S. 525 [Bk. 28, L. ed. 1101]. As to the decisions of the Supreme Court of Wisconsin, its language, in the case of Quinney v. Stockbridge,33 Wis. 505, is as emphatic as that of this court. "The complaint," says the court. "charges the seizure of certain personal property belonging to plaintiffs by the treasurer, under and by virtue of the warrant for the collection of the taxes, and asks an injunction to prevent the treasurer from selling the same. It is well settled, in this court at least, that the writ of injunction will not be granted for such a purpose, and that the illegal seizure and threat of the officer to sell the goods and chattels of the plaintiff constitute no ground for equitable interference." In the case of Van Cott v. Supervisors of Milwaukee County, 18 Wis. 247, which, like the present case, was a bill to enjoin the collection of a tax on personal property, and in nearly every other respect is like this, except that the County of Milwaukee was defendant there, and here it is the City, the same court gave the reasons for the rule adopted by it in the following language: "Our reasons, in brief, are, that by the wrong such as is complained of bere no irreparable mischief is threatened, HERMAN PRESSER, Plff. in Err., D. Do cloud is thrown over the title to real estate, PEOPLE OF THE STATE OF ILLINOIS. (See S. C. Reporter's ed. 252-269.) of Illinois-nstruction of. which a court of equity may be called upon to 1. Statutes must be interpreted, if possible, so as There is nothing to take the case before us ut of the principle here laid down; and the deon of the highest court of Wisconsin, that the remedy at law is ample, must command our respect. In the latest case in Michigan, Youngblood v. Serton, 32 Mich. 407, Cooley, Justice, says: "It decided at an early day in this State that Petion of a no jurisdiction to restrain the col of a personal tax, even conceding it to be illegal, the ordinary legal remedies being Ample for the party's protection," citing WilV. Detroit, 2 Mich. 560, and Henry v. Gregory, 29 Mich. 68. He also shows by additional citations that the same principle has been asserted in the courts of Massachusetts, New Hampshire, Connecticut, California, North Carolina, Rhode Island, Ohio, Missouri, New Fork and Maryland. States. 6. The fifth and sixth sections of article XI. of the Military Code of Illinois, which forbids bodies of Argued Nov. 23, 24, 1885. Decided Jan. 4, 1886. IN ERROR to the Supreme Court of the State of Illinois. The history and facts of the case appear in The Act in question is in direct conflict with "militia.' Houston v. Moore, 5 Wheat. 1 (18 U. S. bk. In the case before us we see no reason for departing from the settled doctrine Loth of this 5, L. ed. 19); Gibbons v. Ogden, 9 Wheat. 209 (22 Cort and of the Supreme Court of Wisconsin. U. S. bk. 6, L. ed. 73) Passenger Cases, 7 How. There is nothing here presentel which brings 283 (48 U. S. bk. 12, L. ed. 702); Hannibal & the case under any of the recognized ueads of St. J. R. R. Co. v. Husen, 95 U. S. 465 (Bk. 24, equity jurisdiction, and the mischiefs which L. ed. 527); McCulloch v. Maryland, 4 Wheat. stattend the exercise of the right to contest 316 (17 U.S. bk. 4, L. ed. 579); Sturges v. Crownin the courts of equity every tax which is as-shield, 4 Wheat. 122(17U.S. bk.4, L. ed. 529); Story, served to be illegal or unauthorized, are too Cost, sec. 1303; Opinions of Justices, 14 Gray, 614; McCall's Case, 5 Phil. Rep. 259; Cooley, ers to justify any such departure. The question on which the judges of the Cir- Const. Lim. 177, n., 178, 179; U. S. v. Cruik tut Court divided is, therefore, answered in the shank, 92 U. S. 552 (Bk. 23, L. ed. 591); People wate; and as that court has no equitable ju- v. Cooper, 83 Ill. 585; Livingston v. Van Ingen, tion in the case, its decree is reversed and 9 Johns. 507; Gilman v. Philadelphia, 3 Wall. thecae remanded, with directions to dismiss the 713 (70 U. S. bk. 18, L. ed. 96); Martin v. Mott, True copy. Test: 12 Wheat. 19 (25 Ú. S. bk. 6, L. ed. 537). James H. McKenney, Clerk, Sup. Court, U.S. tion 10, art. 1, Federal Constitution. Cases above cited; Luther v. Borden, 7 How. 1 (48 U. S. bk. 12, L. ed. 581); Mills v. Martin, 10 Johns. 7; Crandall v. Nevada, 6 Wall. 35 (73 U. S. bk. 18, L. ed. 745); Texas v. White, T Wall. 700 (74 U. S. bk. 19, L. ed. 227); Green v. Biddle, 8 Wheat. 1 (21 U. S. bk. 5, L. ed. 547); Poole v. Fleeger, 11 Pet. 185 (36 U. S. bk. 9, L. ed. 680). It is also in conflict with article II, amendIments to Federal Constitution. See authorities first above cited. 615 It is also in conflict with the Fourteenth Amendment to the Federal Constitution. Slaughter-House Cases, 16 Wall. 74 (83 U. S. bk. 21, L. ed. 408); U. S. v. Cruikshank, 92 U. S. 543 (Bk. 23, L. ed. 588); Ward v. Maryland, 12 Wall. 430 (79 U. S. bk. 20, L. ed. 452); Crandall v. Nevada, 6 Wall. 49 (73 U. S. bk. 18, L. ed. 749); Lemmon v. People, 20 N. Y. 607; Willard v. People,4 Scam. 461; Dred Scott v. Sandford, 19 How. 580 (60 U. S. bk. 15, L. ed. 773). It is also in conflict with subdivision 3, § 9, art. 1, Fed. Const. Calder v. Bull, 3 Dall. 390 (1 U. S. bk. 1, L. ed. 650); Fletchev. Peck, 6 Cranch, 87 (10 U. S. bk. 3, L. ed. 162); Cummings v. Missouri, 4 Wall. 277 (71 U. S. bk. 18, L. ed. 356); Sheppard v. People, 25 N. Y. 406; Lapeyre v. U. S. 17 Wall. 206 (84 U. S. bk. 21, L. ed. 610); Carpenter v. Pennsylvania, 17 How. 456 (58 U. S. bk. 15, L. ed. 127); Ec Parte Garland, 4 Wo" 353 (71 U. S. bk. 18, L. ed. 366). Mr. George Hunt, Atty-Gen. of Illinois, for defendants in error: The Federal Constitution does not take from a State its right to call out the militia for any or all lawful purposes for its own protection and preservation. Without depriving a State of any rights, it vests in Congress the power to provide for using the militia for the purposes therein enumerated and none other. The power of the State to provide for the organization of its own militia is not derived from the Constitution of the United States. The power existed and was exercised before the adoption of the Constitution; and its exercise by the States is not prohibited by that instru ment. It is only such legislation as is repugnant to the authority of Congress that must give way, even when the authority conferred upon Congress is being exercised. Gilman v. Philadelphia, 3 Wall. 713 (70 U. S. bk. 18, L. ed. 96); Livingston v. Van Ingen, 9 Johns. 566; Sturges v. Crowninshield, 4 Wheat. 122 (17 U. S. bk. 4, L. ed. 529); Blanchard v. Russell, 13 Mass. 1. The power of arming, organizing and disciplining the militia, being confided by the Constitution to Congress, when Congress acts upon The right of the people to assemble even for the subject and passes a law to carry into effect a lawful purpose is not such a right as it is the the constitutional provision, such action ex-duty of the general government to enforce. cludes the power of legislation by the States on the same subject. Congress has exercised its functions and covered, so far as it deemed expedient, the ground assigned to it by the Constitution. Act of May 8, 1792, 1 Stat. at L. 271, R. S. 1625 et seq.; Houston v. Moore, 5 Wheat. 24 (18 U. S. bk. 5, L. ed. 24). There is nothing in the case of Sturges v. Crowningshield, in conflict with this doctrine. The Fourteenth Amendment makes all persons born or naturalized in the United States citizens of the United States and of the State wherein they reside, and then declares that no State shall make any law which shall abridge the privileges and immunities of citizens of the United States. The citizen has secured to him the right to keep and bear arms as part of the militia which Congress has the right to organize, and to arm and drill in companies. U. S. v. Cruikshank, 92 U. S. 552 (Bk. 23, L. ed. 591). The organization of the Illinois National Guard, provided for by the Illinois Code, does not conform to the Act of Congress. It does not constitute any part of the militia upon which the president may call to enforce the laws of the United States, when resisted by combinations too powerful to be overcome by the ordinary course of judicial proceedings. Act, Feb. 28, 1795; I Stat. at L. 424; R. $$ 5298, 5299 It is purely a state force, sworn to serve the State in its military service, subject at all times to the orders of the Governor, prohibited from leaving the State without his consent under a penalty; and, so far from being a part of the militia organized in pursuance of the Act of Congress, the Illinois National Guard, in its organization, arming, and the purpose for which it is organized, contravenes the spirit and inten of the national Act, and if permitted to stand, it prevents the organization, arming and disciplining of all the male citizens of the State as Congress has prescribed. Ú. S. v. Cruikshank, 92 U. S. 542 Bk. 23, L. ed. 588). See Dunne v. People, 94 Ill. 120. The Act is purely a police regulation enacted in the interest of the public peace and good order. The right of a State to provide against unlawful assemblies has never been questioned. N. W. Fertilizing Co. v. Hyde Park, 70 Ill. 634; Lakeview v. Rose Hill Cem. Co. 70 Ill. 191; Galena & C. U.R. R. Co. v. Dill, 22 Ill. 264; Same v. Appleby, 28 Ill. 283. Mr. Justice Woods delivered the opinion of the court: Herman Presser, the plaintiff in error, was [ indicted on September 24, 1879, in the Criminal Court of Cook County, Illinois, for a violation of the following sections of article XI. of the Military Code of that State: "Sec. 5. It shall not be lawful for any body of men whatever, other than the regular organized volunteer militia of this State, and the troops of the United States, to associate themselves to gether as a military company or organization, or to drill or parade with arms in any city or town of this State, without the license of the Governor thereof, which license may at any time be revoked; And provided further, that students in educational institutions, where military science is a part of the course of instruction, may, with the consent of the Governor, drill and parade with arms in public, under the superintendence of their instructors, and may take part in any regimental or brigade encampment, under command of their military instructor; and while so encamped shall be gov erned by the provisions of this Act. They shall be entitled only to transportation and subsistence, and shall report and be subject to the commandant of such encampment; Provided, That nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords. Sec. 6. Whoever offends against the provisions of the preceding section, or belongs to or parades with any such unauthorized body 203 of men with arms shall be punished by a fine not exceeding the sum of $10, or by imprisonment in the common jail for a term not exceed ing six months, or both." Laws of 1879, page The indictment charged in substance that Presser, on September 24, 1879, in the county of Cook, in the State of Illinois, "did unlawfully belong to, and did parade and drill in the City of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the governor, and not being a part of, or belonging to, the regular organized volunteer militia' of the State of Illinois, or the troops of the United States." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and both parties having waived a jury the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10. and repel invasions. To provide for organiz- Art. II. of Amendments. "A well regulated The plaintiff in error also contended that the The bill of exceptions taken upon the trial drmance. The argument in support of this contention excludes the power of legislation by the State The position of the plaintiff in error in this on the same subject. was, that the entire statute under which It is further argued that the whole scope and convicted was invalid and void, be- object of the Military Code of Illinois is in conits enactment was the exercise of a power flict with that of the law of Congress. It is es by the Constitution of the United States. to provide for organizing, arming and disciLegislature of Illinois forbidden to the said that the object of the Act of Congress is ates referred to in the assignments of error, States respectively, between certain ages, that The clauses of the Constitution of the United plining all the able-bodied male citizens of the were as follows: Ar. I sec. 8. "The Congress shall have the call of the nation to enforce its laws, sup they may be ready at all times to respond to 1165.8. [262] |