The attempt to enforce payment of the tax in question by the summary mode adopted by the assessor is sought to be justified under § 2835, Annotated Code, 'which reads as follows: “The assessor shall require every person to pay his poll taxes of every kind at the time of assessing the same, and in default of such payment the assessor shall immediately give to the sheriff a list of such poll taxes, and the sheriff shall immediately collect the same by sale of personal property or in the mode directed in the preceding section; and when any personal property or any other personal estate shall be assessed to any person who is not a permanent resident of the county, or who is about to depart or to remove his property therefrom, the assessor shall demand immediate payment of the tax thereon at the same rate per centum as the preceding year’s taxes, and in default of such payment he shall immediately collect the same in the manner aforesaid, and the assessor shall note on the assessment roll all the poll and other taxes so given to the sheriff for collection, and the sheriff shall pay over and account for the same as the other taxes.” This section constitutes § 2 of an Act entitled ‘ ‘An Act to facilitate the collection of taxes *436in certain cases,” approved October 24, 1886. Said Act was intended, no doubt, to apply to a class of transient persons residing temporarily in the county, and to a class who were residing in the county but about to depart or remove their property therefrom. Its object evidently was to prevent those classes of persons from avoiding the payment of taxes upon personal property assessed to them. The first mentioned class includes persons who go into a county without any fixed purpose of residing there permanently, and remain unsettled until such time as they may determine where they will establish a permanent residence. It also includes persons who come into a county to remain during a part of the year for health, convenience or business.
The second class includes persons who are residing in the county, but have arranged their affairs with a view of departing therefrom or removing their property to some other locality. The Act does not in terms include nonresidents of the county engaged in carrying on business therein, which seems to have been the status of the appellant in this case. Eberhard was engaged in the mercantile business at Champoeg, Marion county, had a store and other property there, but became insolvent and made an assignment. His liabilities in the main -were probably in favor of Portland merchants, and I suppose they insisted upon his appointing the appellant, a resident of Portland, his assignee; at all events he did so appoint him. and he qualified and entered upon the discharge of his trust.
The appointment was made on the twenty-sixth day of May, 1888, and thereafter, and on the twentieth day of July, 1888, while the appellant was engaged settling up the business, the assessor of the county proceeded to assess the assigned property. The assessment was properly made, and if the assessor had allowed it to take the usual course of other assessments upon property in the county,for State, county and school purposes, it would have obviated the contention under consideration. Why *437the assessor should have insisted upon the immediate payment of the tax, at the same rate per cent, as the preceding year’s taxes, is very remarkable. The assignee merely stepped into the shoes of the insolvent, and the collection of the legal tax upon the property would have been as secure if the ordinary mode of assessment, levy and collection of taxes had been pursued in regard to it as that of any other property tax in the county. The administration of the.estate of the insolvent was under the control of the circuit court, and it could, and doubtless would, have directed its payment if necessary. The affair indicates that there has been unnecessary haste regarding it, and that if the assessor had considered the matter more thoroughly he would have pursued the course suggested, and thereby have better subserved the interests of the county.
The counsel for the appellant insists that said section of the Act approved October 24, 1866, above set out, is uncon • stitutional and void, and for myself I can hardly perceive how it can be reconciled with the clause of the Constitution which requires that all taxes shall be equal and uniform. The preceding year’s taxes may not have been at a greater per cent, than that of the year when the assessment was made; it possibly may have been at the same rate per cent. That, however, would have been the merest coincidence. So far as this court can know, it may have been double the rate per cent. But if the appellant did not belong to the class of persons provided for in said section of the Act referred to, then it is unnecessary to determine whether or not said section is unconstitutional. I am satisfied, after a thorough examination of the section, that it does not, either in terms or by intendment, apply to a person occupying the status which the appellant did in the premises. I do not think it included him any more than it would any business man of the county who were to establish his residence in an adjoining county, and continue his business in the former one. Said section of the Act was not adopted for' the purpose of assessing taxpayers, and *438the authority therein conferred upon the assessor and sheriff will not be extended beyond its specific terms.
The respondent’s counsel contends that the appellant was not entitled to an injunction to restrain the sheriff from enforcing payment of the tax by the summary pro ceeding, whether it was regular or not. That an injunction to restrain the collection of an illegal tax -will not be granted unless the case is brought under some acknowledged head of equity jurisdiction is a well settled principle of law. Where the tax is assessed against personal prop erty, and there is no fraud in the proceeding, an injunction is not the proper remedy, unless it is shown that the recovery of damages would be an inadequate redress. I was very much inclined, in the outset, to the belief that the appellant’s complaint, filed herein, was not sufficient to entitle him to an injunction. It looked to me as though his only remedy was to pay the tax under protest, and then bring an action at law to recover it back, or to sue the sheriff for the value of the property seized, as in other cases of trespass. But since considering the matter, I am disposed to change the view I at first entertained. The appellant was an assignee of the property seized for the benefit of creditors, and it was doubtless included in his inventory of the property of the insolvent's estate, which stood charged against him at his appraised value. He was therefore under obligations to account for the property, and if taken and carried away it would necessarily embarrass him very much in the settlement of his affairs as trustee. I do not think that it would be overstraining the rule to hold that a trustee in possession of property charged with a trust should be protected by injunction from a threatened wrongful caption and asportation of a part of the property by a party acting under color of office. If the sheriff had been acting under process issued out of a court, the appellant could have applied to the court for an order to compel him to desist from interfering with the property. Every court has authority to control its own process, and a resort to it in the latter case by *439motion would be a' proper course to pursue. But in the present case the appellant is unable to invoke any such remedy, and the recovery of damages would hardly be an adequate redress.
Mr. Cooley, in his work on taxation, at page 541, after having stated on the previous page that a tax would not be restrained on the ground merely that it was irregular or erroneous, says: “But it is not a mere irregularity where one is denied his legal right to work out a road tax, and the amount is demanded in money, nor when a tax once paid is demanded a second time; nor when property is unlawfully exempted from taxation, thereby increasing the burden upon complainant; nor when property which is exempt from taxation by law is assessed; nor when one’s assessment has been increased without giving him the notice to which by law he is entitled. In all these cases the party taxed is denied a substantial right, or his tax is unlawfully increased beyond his due proportion, and his right to an adequate remedy is unquestionable. ” According to this view, the assessment of the property of an owner, and demand of the immediate payment of the tax thereon, at the same rate per cent, as the preceding year’s taxes, without allowing the party an opportunity to have his indebtedness deducted, or to go before the board of equalization to have his assessment corrected, would certainly, if not authorized by law, be the denial of a substantial right.
fThe main ground upon which courts of equity refuse to issue the writ of injunction in cases of illegal taxation, is not in consequence of their lack of jurisdiction in such cases, but through considerations of public policy. This conclusion is clearly sustained by the same author. He says, on page 556 of the work referred to, as follows: ‘ ‘ The available remedy in equity, when any is admissible, is commonly that by injunction. It is probable that this remedy has many times been awarded in equity with too little regard to any other consequences than those which concerned the individual applying for it. But the personal *440consequences are not the only ones which must be kept in view in these cases. When the illegalities complained of affect only the person complaining, an injunction which restrains the collection as to him may cause no considerable mischief, and may very properly be awarded if a sufficient case is made out, but when they affect the whole tax levy, as they often do, a court should be extremely cautious in awarding, on the complaint of one person, or even of several, a x>rocess which may reach the cases of others not complaining, and which may seriously embarrass all the operations of the government depending on the source of revenue which, by means of it, would be stopped.” The case under consideration is free from any such embarrassing circumstances as suggested by the learned'author. It does not affect the source of revenue of the county of Marion except to the extent of §53.76, and the county can much better afford to lose- the entire sum. than have its officers exact it from the appellant in violation of his substantial rights.
The decree appealed from will be reversed, and the case remanded to the said circuit court with directions to make the injunction perpetual, as prayed in appellant’s complaint.