1. As a general rule, the owner of taxable property, who seeks
to enjoin the collection of a tax thereon which he alleges to be in
excess of what is lawful must first pay or tender so much thereof
as is justly due.
2. A bill to restrain the collection of a state tax upon the
shares of a national bank is bad on demurrer where it does not
appear that there is any statutory discrimination against them or
that they, under any rule established by the assessing officers,
are rated higher in proportion to their actual value than other
3. The bill in this case avers that the same percentage is
assessed on such shares as on other property, and that they are
rated at about one-half their actual value. No case for relief is
made by averring that the assessments are unequal and partial, and
some other property is rated for taxable purposes at less than
one-half of its cash value.
The facts, are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a bill in chancery, filed by The German National Bank of
Chicago, to enjoin Kimball, collector of the town of South Chicago,
from enforcing payment of the taxes assessed against the holders of
shares of its stock.
The general grounds on which this relief is sought are two-fold,
namely that the assessment violates the provision of the act of
Congress concerning national banks, which forbids the states from
taxing these shares at any higher rate than other moneyed capital
within the state, and that it also violates the provision of the
Constitution of Illinois concerning uniformity of taxation. From
the decree dismissing the bill on demurrer, this appeal has been
The bill is made up of averments which are intended to show that
the valuation of the property of other persons in the same town,
made by the same assessor, is less in proportion to its actual cash
value than that of the complainant's shares; that the same is true
in other parts of the state; that some corporations are favored in
this valuation, and that certain classes of
Page 103 U. S. 733
property are favored in a general way. But there is no distinct
averment that the shares of this bank are valued higher for the
purpose of taxation than other moneyed capital generally, though
this is alleged in regard to particular instances. The allegations
are pretty full that the assessments are partial, unequal, and
unjust, and do not result in the uniformity of taxation which the
Constitution of Illinois requires.
But we think there are two fatal objections to the bill.
The first of these is that there is no offer to pay any sum as
the tax which the shares of the bank ought to pay.
We have announced more than once that it is the established rule
of this court that no one can be permitted to go into a court of
equity to enjoin the collection of a tax until he has shown himself
entitled to the aid of the court by paying so much of the tax
assessed against him as it can be plainly seen he ought to pay;
that he shall not be permitted, because his tax is in excess of
what is just and lawful, to screen himself from paying any tax at
all until the precise amount which he ought to pay is ascertained
by a court of equity; and that the owner of property liable to
taxation is bound to contribute his lawful share to the current
expenses of government, and cannot throw that share on others while
he engages in an expensive and protracted litigation to ascertain
that the amount which he is assessed is or is not a few dollars
more than it ought to be. But that before he asks this exact and
scrupulous justice, he must first do equity by paying so much as it
is clear he ought to pay, and contest and delay only the remainder.
State Railroad Tax Cases, 92 U. S.
The bill attempts to evade this rule by alleging that the tax is
wholly void, and therefore none of it ought to be paid, and that by
reason of the absence of the uniformity of values, it is impossible
for any person to compute or ascertain what the stockholders of the
complainant bank ought to pay on the shares of the bank. In the
case just cited, this Court said, in answer to the first
"It is clear that the roadbed within each county is liable to be
taxed at the same rate that other property is taxed. Why have not
complainants paid this tax? It is said they resist the rule by
which the value of their roadbed in each county is ascertained. But
Page 103 U. S. 734
should pay tax by some rule. . . . Should they pay nothing, and
escape wholly, because they have been assessed too high? These
questions answer themselves. Before complainants seek the aid of
the court to be relieved of the excessive tax, they should pay what
is due. Before they ask equitable relief, they should do that
justice which is necessary to enable the court to hear them."
Id., 92 U. S.
In the same case, the Court said:
"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
The authorities there cited support the proposition. The whole
extent of the injustice complained of in this bill is the
inequality of the actual assessment, and for this it is argued the
whole tax of the township is void; and as the bill seeks to bring
into view the inequality as regards other counties in the state, it
follows that if it be sustained, the entire tax of the state for
that year must be declared void in order that the complainant may
be relieved of a few thousand dollars and entirely escape taxation
for that year.
In the same case, this Court said:
"Perfect equality and perfect uniformity of taxation, as regards
individuals and corporations or the different classes of property
subject to taxation, is a dream unrealized. It may be admitted that
the system which most nearly attains this is the best. But the most
complete system which can be devised must, when we consider the
immense variety of subjects which it necessarily embraces, be
imperfect. And when we come to its application to the property of
all the citizens, and of those who are not citizens in all the
localities of a large state like Illinois, the application being
made by men whose judgments and opinions must vary as they are
affected by all the circumstances brought to bear upon each
individual, the result must inevitably partake largely of the
imperfection of human nature, and of the evidence on which human
judgment is founded."
P. 92 U. S.
These principles are sufficient to decide the case, and were
declared by this Court in a case arising in the same state and
under the same constitution and revenue laws with the one now
Page 103 U. S. 735
An apparent exception to the universality of the rule is
admitted in People v. Weaver, 100 U.
, Pelton v. National Bank, 101 U.
, and Cummings v. National Bank,
101 U. S. 153
is held in these cases that when the inequality of valuation is the
result of a statute of the state designed to discriminate
injuriously against any class of persons or any species of
property, a court of equity will give appropriate relief, and also
where, though the law itself is unobjectionable, the officers who
are appointed to make assessments combine together and establish a
rule or principle of valuation the necessary result of which is to
tax one species of property higher than others, and higher than the
average rate, the court will also give relief. But the bill before
us alleges no such agreement or common action of assessors, and no
general rule or discriminating rate adopted by a single assessor,
but relies on the numerous instances of partial and unequal
valuations which establish no rule on the subject.
So far as anything of the kind is to be inferred, it is that
shares of national bank stock, including the complainant's, were
assessed at only thirty-four percent of their value, which, by the
board of equalization, was raised to fifty-three percent, and other
property more, and still other less.
The case, then, made by the complainant is this: that the shares
of the bank are taxed at the same percent on their assessed value
as all other property; that the valuation of these shares, on which
this rate is apportioned, is only about half their actual value;
that some other property is valued at less than half of its cash
value, and for this reason no tax should be paid on the shares of
stock of the complainant.
And if any should be paid at all, the sum which may in the end
be found justly due, and which, during the four or five years of
this litigation, must be paid for the support of the government by
some one else, shall remain in the complainant's vaults until it is
ascertained precisely to the last dollar what each share should
We think the circuit court did not err in dismissing such a