Mo. Riv., Ft. Scott & Gulf R. R. v. Wheaton

7 Kan. 232

• Court: Supreme Court of Kansas
• Decided: January 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The petition below, and the evidence used on the hearing of the motion for a temporary injunction show, or tend to show, that the taxing officers of Bourbon county assessed a tax against the “Western Union Telegraph Company,” on a certain telegraph line running through said county, which did not in fact belong to the said Telegraph Company, but did belong to the plaintiffs; that a warrant was issued by the treasurer of said county against the goods and chattels of the said Telegraph Company, and that the said defendant, as sheriff' of said county, threatened to levy the said warrant on the said telegraph line of the said plaintiffs.

1. action; who cnnnotmam 2. injunction; Síe?1,111 Two questions arise in this case: First, Can the Mo. River, Ft. Scott § Gulf R. R. Co. maintain an action to restrain the collection of an illegal tax assessed agajns^ u Western Union Telegraph Co.? ” Or in other words, can A, against whom no illegal tax has been assessed, maintain an action against the officers of Bourbon county because they have assessed an illegal tax against B ? "We answer this question in the negative ; and without any comment, proceed to the next question. Second: Will an injunction be granted to restrain an officer from levying a tax warrant on the plaintiffs’’ property when the said warrant does not purport to give to the said officer any authority or color of authority to make such levy ? Or, in other words, will injunction lie to restrain the commission of a pure, naked, and eimple trespass ? We must also answer this question in the negative. The said warrant was not against the Bailroad Company, nor against their property, nor against any specific property belonging to any one; but it was simply against the “ Western Union Telegraph Company,” and against the goods and chattels of said Telegraph Company only. Under the warrant the sheriff had the right to levy on any goods and chattels of the said Telegraph Company, but on no other property, nor on the property, of any other person, company, or corporation. If the sheriff" should levy on the property of the railroad company, the railroad company would of course have a cause of action against the sheriff in replevin or for damages, in the nature of an action of trover, or of trespass de bonis asporiaiis ; but they cannot have an injunction to restrain the anticipated trespass. We are not aware that any pure, simple and naked trespass has ever been restrained by injunction. ■ ■

The order and judgment of the court below must therefore be affirmed.

All the Justices concurring.