dissenting.
John Hallenbeck, the plaintiff in this case, filed his petition in the Douglas-county District Court on the eighteenth day of September, 1871, against the defendant, W. J. Hahn, who is county treasurer of Douglas County.
The object and prayer of the petition was to restrain the defendant, as such treasurer, from selling certain real estate of which plaintiff was owner in possession, lying in Douglas County, and fully described in the petition, to set aside the levy and assessment for the year 1870, and for damages and costs. The grounds upon which this relief is claimed are very voluminously set forth in the petition. After stating that the defendant is county treasurer of Douglas County, and, acting *434as such treasurer, is about to sell said, real estate for the alleged reason that the taxes due thereon for the year A.D. 1870 are unpaid, the plaintiff proceeds to set forth, that on the thirtieth day of November, 1869, a proposition was submitted by the county commissioners of Douglas County to the electors thereof, to issue a voluntary donation of three hundred and fifty thousand dollars, in county bonds of the county, to certain railroad corporations to aid in their construction.
The proposition, the canvass of the votes cast on the proposition, the resolution of the county commissioners after the canvass to issue the bonds in accordance with the vote, and the notice of such resolution published by them, are all fully set out in the petition; and various alleged irregularities in those proceedings are specifically set forth, besides those which appear upon the face of the proceedings.
The petition further shows that the tax for which the defendant proposes to sell thi plaintiff’s real estate is, in part, to pay the interest on those bonds.
I do not regard it necessary to consider in detail, nor indeed to consider at all, the soundness of the various objections made by plaintiff of the validity of the tax levied to pay the interest. The conclusion which I have come to renders such consideration unnecessary, if not improper.
Grave and serious questions were raised by the plaintiff’s counsel on this point, which deserve, even at this time, a passing notice.
Had the plaintiff relied solely upon the fact, that the tax for which defendant was about to sell his land was to go in part to pay the interest on the bonds so donated' and issued to these railroad corporations, the Court would have been called upon to consider these questions, which would then have been as vital and important to *435the plaintiff’s case as they are vital and important in themselves. It wo'uld then have been a vital question, whether these are limits to the taxing power which are not expressed or implied in the provisions of our constitution. It might also have been a question, whether the legislature may delegate a power which it may not itself exercise; whether the legislature may delegate to the various counties and municipalities of the State the power to contract debts, and loan their credit to aid in the construction of railroads, when the whole State is restrained from so doing by constitutional inhibition. I understand it to be at least doubtful, if, under our present constitution, a statutory enactment donating the bonds of a county to a private corporation, and providing for their payment by a tax upon the property and inhabitants of such county, would not be absolutely null and void. If this be true of the legislature, — of the head and source of the taxing power, — I am unable at this time, from any argument I have yet heard, to see why it is not, for a stronger and greater reason, true of those to whom it has delegated, or attempted to delegate, its authority.
I am clear that there are no limits to the taxing power except those fixed by the constitution. For, granted, as an abstract of principle, that a tax should never be laid except for government strictly so called; yet, before the taxing power can be subject to the control of" the • courts, we must be able to define with judicial precision what the object and purposes of government are. And who will undertake to do this ? This power is committed to the legislature, itself subject to the restraint imposed by the constitution. If we seek to give to government a purely regulative character,— and, by that, its object is to secure the protection of its individual members, — what shall we say of the laws *436establishing and levying taxes for the support of our common schools and universities, of the premiums awarded by government for various kinds of excellence in labor and invention, all clearly of a different character ? Whatever may be true in the abstract and as a philosophical principle, it must be admitted as a fact, that the purposes of government are varied and infinite, all tending to one end; namely, the well-being of society. What will best secure this is a political, not a judicial, question. And the power of determining what is for the well-being of society is committed to the wisdom and judgment of the legislature, with no limitations or restrictions except those imposed by the constitution. It may, then, be laid down as a principle, in no case to be departed from, that when the legislature has by enactment of its own, or of those to whom it has lawfully delegated its authority so to do, provided for levying and collecting a tax, courts have no right to interfere and inquire whether the taxing power has been legitimately exercised. The legislature is the exclusive judge in such cases, unless they be restrained by constitutional limitation. In that case the Court acquires jurisdiction to restrain and confine the legislative enactment within the limits prescribed by the constitution.
But the latter question is, to my mind, of greater difficulty, and involves considerations much more serious. Certainly, if the legislature may delegate a given power to the electors of a county, it may exercise that power itself. This will be conceded by all. The legislature, being desirous to consult the will of the electors of that locality which is to bear the burden, assigns to them the decision of the question, whether or not money shall be borrowed for a given purpose, and a tax levied to pay the debt thus created. It is the *437act of the legislature, nevertheless; and possesses the same validity as if done by the legislature, and no more. If it, then, be admitted that the courts have no authority to define the limits of the taxing power, only two questions can be raised here; namely, May the legislature, under our constitution, delegate its authority to borrow money and contract debts ? Second, if it may do so, are the debts thus contracted by county, state, or public, debts in such a sense as to come within any of the limitations of the finance article of our constitution ? Or, in other words, is this class of debts and obligations, contracted by counties and municipalities, by legislative authority, to make a present and gift to a railroad' company, obnoxious to any provision of our present constitution ? I have thus defined what I conceive to be the real issues involved in our branch of this case. But I am not prepared, nor do I think it entirely proper as the case now stands, to give an opinion upon them. They are destined, without doubt, at no distant day, to be raised and decided in this Court, when they will receive that grave consideration which their importance demands. Nor am I disposed at this time to inquire into the alleged irregularities in the voting of this debt and the accompanying tax. If these irregularities are substantial, they are fatal; if merely formal, it is otherwise.
It is sufficient for the decision of this case that it is alleged in the petition, and admitted by the demurrer, that, at the time and ever since the tax became due, the plaintiff was possessed of ample personal property and effects in this county, out of which the tax might have been collected.
The allegation is in general terms: but it is sufficient; and, if it were not, the defect could not be reached by general demurrer. Such a demurrer admits the truth of the allegation in all its breadth.
*438Our statutes provide (1870, 1871, p. 81) that the county treasurer shall first proceed to make the tax out of the personal property of the delinquent.
The question, then, is, Will the Court enjoin the county treasurer from selling the real estate of the delinquent when said delinquent has personal property out of which the tax may be collected ?
The power, or rather duty, of the Court to interpose by injunction to restrain the collection of a tax, has been variously decided in different tribunals; and the authorities are somewhat conflicting. In Ottawa v. Walker, 21 Ill., 605, the power was exercised when the tribunal levying the tax acted without authority of law. So in Burnet v. Cincinnati, 3 Ham., a sale of land for a tax which had not been assessed in accordance with the charter and ordinances of the city was restrained: and this case was cited, commented on, approved, and followed, in Culbertson v. Cincinnati, 16 Ohio, 574. So in Kennoup v. Boling, 11 Cal., 380, a sale of real estate for a valid tax was restrained, because the officer selling had no authority to sell, his term having expired.
On the other hand, it is laid down in numerous cases, that, when nothing but the mere question of taxation is involved, the issue is strictly out of law, and equity can take no cognizance thereof; that a party aggrieved by an illegal tax has an ample subsidy at law, and a court of equity has no authority to restrain the collection of an illegal tax; that the unlawful collection of a tax is a mere trespass, not to be enjoined without allegations and proof of impossible injury therefrom. 23 Conn., 232; Mintons v. Hays, 2 Cal., 590; Wilson v. Mayer, &c., 4 E. D. Smith, 675: Ritter v. Patch, 12 Cal., 298. As the announcement of an abstract principle, I do not know that the doctrine above laid down is open to objection.
It is not in the general principle that ought to govern *439that the various tribunals have differed from each other: the point of difference is to be found in the application of the principle. No court has ever interfered when the issue was conceded to be one of mere taxation. Irreparable injury without adequate remedy at law has always been the ground of equitable, interposition.
The question to be decided here, as in all other cases, is, Is the injury irreparable in the judicial sense of the term, or the remedy at law adequate ? Suppose the tax to be in all respects legal, and all proceedings in relation thereto up to the time of collection valid and regular: should the treasurer then, in disregard of duty enjoined on him by law, without making an effort to collect the tax out of the personal property of the delinquent, proceed to sell his real estate therefor ? What is the nature of the injury that will ensue ? and where and what is his remedy at law ? The power to collect taxes is a high sovereign prerogative; and it is in accordance with the spirit of our institutions that its exercise should be strictly confined within the limits prescribed by it.
To say that the treasurer, though required by law to exhaust his remed3r against the personal property of the delinquent before proceeding to sell his real estate, may nevertheless disregard this limitation upon his power, and proceed against the real estate in the first instance, is to frustrate and make void the law, instead of administering it. A cloud is thus cast upon the plaintiff’s title: a deed thus given may ripen in time into a perfect indefeasible estate; and the plaintiff, though in no fault, may be deprived of his title and possession by the illegal and wrongful acts of a petty officer. Whether this is an irreparable injury or not is to be left to each one’s own consciousness and sound judgment in the absence of decisive authority; but I, for one, see no room for two opinions.
*440In such cases the question is not one of mere taxation, and never can be. Courts of equity interfere when one sets up and asserts a colorable title, and will enjoin him from so doing. Shall they not also interfere when an attempt is made to create one, and especially one which, by a brief lapse of time, becomes perfect ? Where is the remedy at law ? I confess I am unable to conceive one. Here is no trespass for which an action will lay. The action of trespass, if it were adequate, does not lie; and, if if lay, it would be wholly inadequate. It might answer in case of personal property wrongfully seized, but not here. It has been suggested that the delinquent may pay the money under protest, and then sue to recover it back. Suppose, however, he does not want to pay it, or has not got it to pay: is the officer then justified in violating the law and his just duty ? Again: whom shall he sue to recover back the money ? The county or the countjr treasurer, or give him the option to sue either. Still, if the tax be legal and valid, may not the one thus sued set off the am'ount due from the delinquent for taxes ? I see no valid reason why this may not be done ; and, if it may, it reduces that reasoning to an absurdity. The plaintiff is clearly entitled to an injunction, unless we conclude to override the positive provisions of the law, and hold that delinquent taxes are to be collected in the best way and manner which the officer charged with that duty can devise, consulting his own good pleasure and ingenuity alone. I am not prepared to so decide. In my opinion, the judgment of the Court below should be reversed.