The plaintiff further alleged that the bridge constituted a part of its line of railway, and had no separate earning capacity, and no greater earning capacity than any other equal number of feet of its line of railway, and was used exclusively by it in transporting freight and passengers across the Ohio river to and from the states of West Virginia and Ohio; and that it was advised and believed that the bridge was an instrument of interstate commerce, and was not, as a separate structure from its line of railway, a proper subject for taxation by the state of West Virginia in the manner above

set forth.

court of the United States for the northern district of Illinois, to restrain the collection of a tax assessed by the city of Chicago upon his shares in the bank, alleging, among other things, that the tax was illegal and void, because the tax was not uniform and equal with taxes on other property as required by the Constitution of the state, and because the shares were taxable only at the domicil of the owner and therefore were not property within the jurisdiction of the state of Illi nois. This court, speaking by Mr. Justice Field, without considering the validity of the objections to the tax, held that the bill could not be maintained, saying: “Assuming the The bill then charged that the tax upon tax to *be illegal and void, we do not think [381 the bridge was illegal and unjust, and con- any ground is presented by the bill, justifystituted a cloud upon the title to the bridge, ing the interposition of a court of equity to and that by reason of that clause of the Con- enjoin its collection. The illegality of the stitution of the United States, which gives tax and the threatened sale of the shares for Congress control over interstate commerce, its payment constitute of themselves alone the circuit court of the United States for no ground for such interposition. There the district of West Virginia was clothed must be some special circumstances attendwith authority and jurisdiction to restraining a threatened injury of this kind, distinand to prevent the assessment and collec-guishing it from a common trespass, and tion of this illegal and unjust tax; and bringing the case under some recognized head prayed for an injunction against its assessment and collection, and for her relief. The bill was sworn to March 18, 1895; and was filed March 25, 1895, together with an affidavit to the effect that, since the bill was sworn to, the sheriff had levied upon one of the plaintiff's freight engines for the purpose of enforcing the collection of the tax upon the bridge. Upon the filing of the bill, a temporary injunction was granted as prayed

for.

A general demurrer to the bill was after[37] wards filed and sustained, the injunction dissolved, and the bill dismissed. The plaintiff appealed to this court, under the act of March 3, 1891, chap. 517, § 5. 26 Stat.

at L. 828.

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 should be interfered with as little as possible. modes adopted to enforce the taxes levied Any delay in the proceedings of the officers, the taxes may derange the operations of the upon whom the duty is devolved of collecting government, and thereby cause serious detritherefore, allow its injunction to issue to rement to the public. No court of equity will, strain their action, except where it may be necessary to protect the rights of the citi zen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law," 11 Wall. 109, 110 [20: 66].

"The

Messrs. J. Dunbar and J. B. Sommer-party of whom an illegal tax is collected has ville, for appellant.

Messrs. T. S. Riley, Thayer Melvin, and Edgar P. Rucker, Attorney General of West Virginia, for appellee.

[37] *Mr. Justice Gray, after stating the case, delivered the opinion of the court:

The collection of taxes assessed under the authority of a state is not to be restrained by writ of injunction from a court of the United States, unless it clearly appears, not only that the tax is illegal, but that the owner of the property taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case under some recognized head of equity jurisdiction. Dows v. Chicago, 11 Wall. 108 [20: 65]; Hannewinkle v. Georgetown, 15 Wall. 547 [21: 231]; State Railroad Tax Cases, 92 U. S. 575 [23: 663]; Union Pacific Railway Co. v. Cheyenne, 113 U. S. 516 [28: 1098]; Milwaukee v. Koeffler, 116 U. S. 219 [29: 612]; Shelton v. Platt, 139 U. S. 591 [34: 273].

In Dows v. Chicago a citizen of the state of New York, owning shares in a national bank organized and doing business in the city of Chicago, filed a bill in equity, in the circuit

against the officer making the collection or ordinarily ample remedy, either by action the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action." 11 Wall. 112 [20: 67].

In the State Railroad Tax Cases this court,

in a careful and thorough opinion delivered
by Mr. Justice Miller, stated that "it has
been repeatedly decided that neither the mere
illegality of the tax complained of, nor its
injustice nor irregularity, of themselves, give
the right to an injunction in a court of equi- [39]
ty;" referred to section 3224 of the Revised
Statutes, which provides that "no suit for
the purpose of restraining the assessment or
collection of any tax shall be maintained in
any court;" and said that "though this was

intended to apply alone to taxes levied by the pany under a statute of the state of TennesUnited States, it shows the sense of Congress see, alleged to be contrary to the Constituof the evils to be feared if courts of justice tion of the United States. The bill averred could, in any case, interfere with the process that the comptroller had issued a warrant of of collecting the taxes on which the govern- distress to a sheriff to collect such taxes for ment depends for its continued existence." two years, the sheriff had levied or was The court then quoted from Dows v. Chicago, about to levy the warrant on the property and Hannewinkle v. Georgetown, above cited, of the company, and the comptroller was and proceeded as follows: "We do not propose about to issue a like warrant to collect the to lay down in these cases any absolute lim- tax for a third year; that the property of itation of the powers of a court of equity in the company in Tennessee was employed in inrestraining the collection of illegal taxes. terstate commerce in the express business, But we may say that, in addition to illegal- and was necessary to the conduct of it; and ity, hardship, or irregularity, the case must that the seizure by the sheriff would greatly be brought within some of the recognized embarrass the company in the conduct of foundations of equitable jurisdiction; and that business and subject it to heavy loss that mere errors or excess in valuation, or and damage, and the public served by it to hardship or injustice of the law, or any great loss and inconvenience. This court grievance which can be remedied by a suit held that, even if the statute was unconstiat law, either before or after payment of tax- tutional and the tax void, the bill could not es, will not justify a court of equity to inter- be maintained, and, speaking by the Chief pose by injunction to stay collection of a tax. Justice, said: "The trespass involved in the One of the reasons why a court should not levy of the distress warrant was not shown thus interfere, as it would in any transaction to be continuous, destructive, inflictive of between individuals, is that it has no power injury, incapable of being measured in to apportion the tax or to make a new assess-money, or committed by irresponsible perment, or to direct another to be made by the sons. So far as appeared, complete compenproper officers of the state. These officers, sation for the resulting injury could have and the manner in which they shall exercise been had by recovery of damages in an ac- [41] their functions, are wholly beyond the power tion at law. There was no allegation of inof the court when so acting. The levy of ability on the part of the express company taxes is not a judicial function. Its exer- to pay the amount of the taxes claimed, nor cise, by the Constitutions of all the states, any averment showing that the seizure and and by the theory of our English origin, is sale of the particular property which might exclusively legislative. A court of equity is, be levied on would subject it to loss, damtherefore, hampered in the exercise of its age, and inconvenience which would be in jurisdiction by the necessity of enjoining the their nature irremediable." The court went tax complained of, in whole or in part, with- on to say that another statute of the state out any power of doing complete justice by (which had been adjudged by this court in making, cr causing to be made, a new assess- Tennessee v. Sneed, 96 U. S. 69 [24: 610], to ment on any principle it may decide to be afford a simple and effective remedy) prothe right one. In this manner, it may, by vided that where an officer charged by law enjoining the levy, enable the complainant with the collection of a tax took any steps to escape wholly the tax for the period of to collect it, a party conceiving it to be untime complained of, though it be obvious that just or illegal might pay it under protest he ought to pay a tax if imposed in the prop- and sue the officer to recover it back, and er manner." 92 U. S. 613-615 [23: 673, should have no other remedy by injunction 674]. or otherwise. The court observed that "leg[40] *In Union Pacific Railway Co. v. Cheyenne, islation of this character has been called for in which the Union Pacific Railway Company by the embarrassments resulting from the obtained an injunction against the levy of a improvident employment of the writ of intax by the city of Cheyenne, the facts were peculiar. The plaintiff, owning many lots of junction in arresting the collection of the land in that city, had paid a tax assessed on strong arm of the court of chancery ought public revenue; and, even in its absence, the all its property by a board of equalization not to be interposed in that direction, except under a general statute of the territory of where resort to that court is grounded upon Wyoming, and had also been taxed by the city of Cheyenne under provisions of its the settled principles which govern its jurischarter which had been repealed by that stat- diction;" and that the jurisdiction exercised ute; and the bill showed, as stated in the by the courts of the United States to restrain opinion, that the levy complained of "would by injunction the collection of a tax wholly involve the plaintiff in a multiplicity of suits illegal and void had always been rested on as to the title of lots laid out and being sold; other grounds than merely the unconstituwould prevent their sale; and would cloud tionality of the tax. 139 Ú. S. 596-598 [35: the title to all its real estate." 113 U. S. 276, 277]. 526, 527 [28: 1102].

In the light of these decisions we proceed to an examination of the provisions of the Code of West Virginia of 1891, chap. 29, § 67, under which the tax upon the plaintiffs' bridge was assessed.

In Shelton v. Platt, 139 U. S. 591 [35: 273], the president in behalf of himself and other members of an express company, a joint-stock company of the state of New York, filed a bill in equity in a circuit court of the United States in Tennessee to restrain the collection of a license tax upon the com

That section requires every corporation, owning or operating a railroad wholly or partly within the state, to make, through

and Ohio was real estate. It was a "build-
ing or structure," within the proper meaning
of the words. Bridge Proprietors v. Ho-
boken Land & Improv. Co. 1 Wall. 116, 147
[17: 571, 577]; [State], Whitall, v. Glouces
ter County Freeholders, 40 N. J. L. 302, 305.
And it had been declared by Congress to be
"a lawful structure." Act of July 14, 1862;
12 Stat. at L. 569, chap. 167. The fact that
the bridge was an instrument of interstate
commerce did not exempt so much of it as
was within West Virginia from taxation by
the state. Henderson Bridge Co. v. Hender-
son City, 141 U. S. 679 [35: 900].

its principal officers, to the auditor of the state, on or before the 1st of April in each year, a return in writing, under oath, showing, among other things, the following: 1st. The whole number of its miles of railroad within the state. 2d. If the railroad is partly within and partly without the state, the whole number of miles within, and of those without the state, including all its branches. 3d. "Its railroad track in each county in this state through which it runs, giving the whole number of miles of road in the county, [42] including the *track and its branches and side and second tracks, switches, and turnouts therein; and the fair cash value per mile of such railroad in each county, including in such valuation such main track, branches, side and second tracks, switches, and turnouts." 4th. All its rolling stock, and the fair cash value thereof, distinguishing between what is used wholly within the state, and what is used partly within and partly without the state, and the proportionate value of the latter, according to the time used and the number of miles run thereby in and out of the state; "and the proportional cash value thereof to each county in this state through which such railroad runs." 5th. "Its depots, station houses, freight houses, machine and repair shops and machinery therein, and all other buildings, structures, and appendages connected thereto or used therewith, together with all other real estate, other than its railroad track, owned or used by it in connection with its railroad, and not otherwise taxed, including telegraph lines owned or used by it; and the fair cash value of all buildings and structures, and all machinery and appendages, and of each parcel of such real estate, including such telegraph line, and the cash value thereof in each county in this state in which it is located."

a clause near the end of the same section, it | determine whether it should be treated as is provided that "all buildings and real es- "railroad track," or as a building or structtate owned by such company, and used or oc- ure," or as "other real estate, owned or used cupied for any purpose not immediately con- in connection with the railroad." In any nected with its railroad," are to be taxed like view, its assessment and valuation by the similar property of individuals. board of public works, of which the plaintiff complains, was subject to review by the "cir- [46] cuit court of the county upon an appeal seasonably taken by the railroad company.

The same section further provides that the decision made by the board of public works shall be final, unless the railroad company, within thirty days after such decision comes to its knowledge, appeals (which it is expressly authorized by the statute to do) from the decision, as to the assessment and valuation made in each county through which the railroad runs, to the circuit court of that county. The appeal is to have precedence over all other cases, and is to be tried as soon as possible after it is entered. That court, on such appeal, is to hear all legal evidence offered by the appellant, or by the state, county, district, or municipal corporation, and, if satisfied that the valuation is fixed by the board of public works is correct, to confirm the same; but, if satisfied that such valuation is too high or too low, to correct it, and to ascertain and fix the true value of [45] the property *according to the facts proved, and certify such value to the auditor.

The section, indeed, also provides that, when the return made to the auditor is satisfactory to the board of public works, or when an assessment is made by that board, the auditor shall immediately certify, to the county court of each county through which the railroad runs, the value of the property of the railroad company therein, as valued and assessed as aforesaid; that that court shall apportion that value among the districts, school districts, and municipal corporations through which the railroad runs; and that the clerk of that court, within thirty days after it has laid the county and district levies, shall certify to the auditor the apportionment so made; that the recording officer of each district or municipal corporation through which the road runs shall, within thirty days after a levy is laid therein, certify to the auditor the amount levied; and that, if any such officer fails to do so, the auditor may obtain the rate of taxation from the land books in his office or from any other source.

This provision for a review and correction, by the circuit court of the county, of the assessment made by the board of public works, affords a convenient and adequate remedy for any error in the taxation, and has been held by the highest court of the state to be in accordance with its Constitution. Wheeling Bridge & T. Railway Co. v. Paull, 39 W. Va.

142.

That court has often had occasion to inquire how far the action of the circuit court of the county, in this respect, is administrative only, and how far it may be considered as judicial in its nature. Pittsburg, C. & St. L. Railway Co. v. Board of Public Works, 28 W. Va. 264; Charleston & Southside Bridge Co. v. Kanawha County Court, 41 W. Va. 658; State v. South Penn Oil Co. 42 W. Va. 80. See also Upshur County v. Rich, 135 U. S. 467 [34: 196].

But it is not important, in this case, to pursue that course of inquiry; since, in matters of taxation, it is sufficient that the party assessed should have an opportunity to be heard, either before a judicial tribunal, or before a board of assessment, at some stage of the proceedings. Kelly v. Pittsburgh, 104 U. S. 78, [26: 658]; Pittsburgh, C. C. & St. L. Railway Co. v. Backus, 154 U. S. 421, [38: 1031].

Even if, therefore, no previous notice of the hearing before the board of public works was required by the statute, or was in fact given to this plaintiff (which is by no means clear), yet the notice of its decision, with the right to appeal therefrom to the circuit court of the county, and there to be heard and to offer evidence, before the valuation of its property for taxation was finally fixed, afforded the plaintiff all the notice to which it was entitled.

The railroad bridge in question being liable to assessment under section 67, it is unnecessary, for the purposes of this case, to

But the provision directing the auditor to immediately certify the assessment made by the board of public works to the county court of each county must be construed as subordinate to and controlled by the next preceding provision giving the right of appeal from the board of public works to the circuit court of the county-as clearly appears from the next succeeding provision, by which it is after the value of the property of the railroad company has been "fixed by the board of public works, or by the circuit court on appeal as aforesaid" that the auditor is directed to assess and charge the property of the company "with the taxes properly chargeable thereon," in a book to be kept by him for that purpose.

The statute also contains a provision that "no injunction shall be awarded by any court. or judge to restrain the collection of the taxes, or any part of them, so assessed, except upon the ground that the assessment thereof was in violation of the Constitution of the United States, or of this state, or that the same were fraudulently assessed, or that there was a mistake made by the auditor in the amount of taxes properly chargeable *on [47] the property of said corporation or company; and in the latter case no such injunction shall be awarded unless application be first made to the auditor to correct the mistake claimed, and the auditor shall refuse to do so, which facts shall be stated in the bill." While this provision cannot, of course, bind the courts of the United States, it is nearly in accord with the rule governing the exercise of the jurisdiction in equity of those courts, as established by the decisions cited at the beginning of this opinion.