delivered the opinion of the court.
“ It is well settled that where a portion of a tax sought to be enjoined is legally due, and a portion not, the bill for injunction cannot be maintained, unless the portion properly collectible is paid or tendered.” This is the language of this court in M. & O. R. R. Co. v. Moseley, 52 Miss., 137. See, to the same effect, Cooley on Taxation (2d ed.), p. 763, note 1, with authorities; Cooley’s Const. Lim. (5th ed.), p. 645, note 4, with authorities; State Railroad Tax Cases, 92 U. S., 574, where it is said, page 617: “The state is not to be thus tied up, as to that of which there is no contest, by lumping it with that which is really contested. ” National Bank v. Kimball, 103 U. S., 732. The learned author, in note 4 supra (Cooley on Taxation, 645), says: “But when a party asks relief in equity, before a sale, against the collection of taxes, a part of which are legal, he will be required first to pay that part, or, at least, to distinguish it from the rest, that process of injunction can be so framed as to leave the legal taxes to be enforced. ’ ’ And in McPherson v. Foster, 43 Iowa, 48, it is held that “ a tax for a proper purpose, in excess of the legal limit, should be upheld as far as legal.” This case is identical with this one. See p. 73.
There, as here, an actual levy was made for a greater percentum than was legal, and injunction was granted before sale, and the court said the injunction could be modified, and “the levy could be corrected to harmonize with the law. ” It is not the interests of the taxpayer alone which, in such cases, are to *360be looked to, but the interests of the state as well, whose existence is dependent upon taxation.
The learned special chancellor acted in accordance with these views, and the decree is
Affirmed.