Page:Federal Reporter, 1st Series, Volume 8.djvu/463

 SUNIlNaTOir V. tilMER, ei9 �duNTiNOTON V. Palmee and another. �(Circuit Court, D. CcU(fernia. 1881.) �1. Bqtjitajju! jMaxim. �He who cornes into equity must do so with clean bands. �2. Same— Application op — Railroads — Stockholdbrb— State Tax in Part �Illegal — Demurreb. �Where a stockholder, on behalf of himself and all othera who should come in and contribute to the expeuse of the suit, brought a bill in equity against the corporation, and the tax collector of a particular county,to etijoin the collection of a State and county tax as being illegal and unconstitutional, and, as such, utterly void, it was held, that, as the bill did not allege payment of so much of the taxes as must be conceded ought be assessed and paid, it was demurrable. An averment in the Mil of a readineas to make such payment is not enough. �Sawieb, g. J. 'This is a bill in equity brought by a stockholder of the Central Pacific Eailroad Company, on behalf of himself and all other etockholders who shall corne in and contribute to the ex- panse of the suit against the corporation and the tax collecter of Alameda county, to enjoin the collection of a state and county tax, as being illegal and unconstitutional on varions grounds, and as such utterly and in toto void. The defendant Palmer demurs to the biP for want of equity. The bill contains the usual allegations of suob bills brought by stockholders, but it fails to allege the payment oi even the tender of any part of the tax, and for the want of this allega- tion alone, without reference to any other point involved, the said defendant insists that the bill is without equity and must be dis- missed. He relies upon the State Railroai Tax Cases, 92 U. S. 575, and subsequent decisions, to sustain the position. There were three of the state railroad tax cases, neither of them brought by the cor- poration itself. In the first, the trustees and mortgagees holding the road for the security of the bondholders were complainants ; in the last two, the complainants were stockholders, precisely as in this case. So far, then, as the parties are concerned, the last two cases, at least, were like this, and govemed by the same principles. There was a willingness to pay so much of the taxes as might have been legally assessed alleged in the bills. It was also alleged that the assessments were wholly void. Page 589. It is true, the court in those cases held that the objections made to the tax were not well founded; but another point, as to want of an allegation of payment, was fairly presented by the bill, and as distinctly decided. It having been fairly presented by the record, argued; considered, and decided, it cannot, as is claimed by complainant, be considered a mere dictum, v.8,no.7— 29 ��� �