ALFRED DE WITT, HENRY S. DEXTER, and FERDINAND VASSAULT, Trustees of the Pacific Wharf Company, v. JOHN C. HAYS, Sheriff of the County of San Francisco, and ex officio Collector of Taxes, 2 Cal. 463

Murray, Chief Justice, delivered the opinion of the Court, Anderson, Justice, concurring. The respondents as trustees of the Pacific Wharf Company, ¡ plaintiffs in the Court below, filed their bill to enjoin the collec-1 tor of taxes from proceeding to sell Pacific wharf for a certain tax assessment made thereon, in the name of Pacific Wharf. The bill alleges that said assessment is irregular, illegal, and void; and that said sale of the collector of taxes will work an irreparable injury, and prays an injunction to restrain the same. A temporary injunction was awarded by the Court.

The defendants afterwards demurred to the bill for want of proper parties, and of jurisdiction in the Court below, which was overruled, from which judgment on demurrer the defendants appealed. The legality of the assessment is not necessarily in question, as this case must turn on the jurisdiction below; but inasmuch as this point was fully discussed upon the argument, and the question may again present itself, we think it best to give a judicial construction to the Revenue Act of 1851.

The bill alleges j the title of land upon which Pacific wharf is erected, is in the city ! of San Francisco, which must be taken as admitted by the demurrer. The right of the plaintiffs in the premises is simply a right to ; collect wharfage and dockage for a certain term of years, and j is neither real estate nor personal property, but a franchise or incorporeal hereditament, an uncertain profit issuing out of the realty. While the Constitution provides that all property shall be taxed, &c., still the quo modo is a matter of legislative control, and the statute must be steadily followed.

The interests of the plaintiff does not come under the head of personal property or real estate as defined by the statute of 1851. The Legislature has omitted to provide for any tax upon this species of property, and the naked right to collect wharfage cannot be assessed eo nomine, or made liable. We do not, however, wish to be understood as deciding, that property in a wharf, or the stock of the company, is not the proper subject of taxation ; admitting, however, that the assessment is illegal; are the plaintiffs entitled to a remedy by injunction ?

The legislature in providing that “there shall be but one form of civil action,” cannot be supposed to have intended at one fell stroke to abolish all distinction between law and equity, as to actions. Such a construction would lead to infinite perplexities and endless difficulties.

The innovation extends only to the form of action, and the pleadings, while the technicalities of pleading have been dispensed with; and the plaintiff need only state his cause of action in ordinary and concise language, whether it be in assumpsit, trespass, or ejectment, without regard to the ancient forms; still the distinction between those actions has not been abolished, but remains the same.

So cases legal and equitable have not been consolidated, and though there is no difference, between the form of a bill in chancery, and a common law declaration, under our system, where all relief is sought in the same way from the same tribunal; the distinction between law and equity is as naked and broad as ever. To entitle the plaintiff to the equitable interposition of the Court, he must show a proper case for the interference of a Court of Chancery, and one in which he has no adequate or complete relief at law.

In the present case, under an allegation of irreparable injury, the plaintiff seeks to avail himself of the writ of injunction, which has been styled “the right arm of the law.” The simple allegation of irreparable injury is not sufficient, it should appear to the Court from the facts set forth in the bill. The sale of Pacific J wharf can neither cloud the title of the plaintiffs, nor work an \ irreparable injury to them. They do not pretend to a title in 1 the soil, but only to an interest in the franchise.

If the tax ; upon the franchise has been illegally imposed, or a valid objec- ; tion appears upon the face of the proceedings, they have a per- i feet remedy at law, and a Court of Equity has no power to > interpose. Van Rensselaer v. Kidd, 4 Barbour’s S. C. Reports; Vandoven v. Mayor of N. Y., Chan. Reports, 9 Paige, and Wiggin v. Mayor of H. Y., Ib. The case of Osborne v.

The Bank of the United States, 9 Wheaton, was strongly relied on by the counsel for the respondent, as supporting the jurisdiction of the Court by injunction in all cases of franchise; much of the reasoning of that case is inapplicable to the present one, and the Court seem to base their argument on the supposition that the tax upon the bank would work an irreparable injury, by destroying the franchise, and driving the institution from the State; and that the State might be unable to respond in damages for the injury.

There is a wide difference in the two cases, and no pretence is ) made that the sheriff is unable to satisfy any damages that may \ accrue, or that the franchise will be destroyed. The practice of granting writs of injunction in every conceivable case affecting personal and real estate, and restraining persons in the enjoyment of their property, has been carried to a greater extent perhaps in this State than any other; so much so, as to impair the efficiency of and benefits arising from the judicious exercise of this power. These abuses ought to be checked by this Court wherever they occur.

We are of opinion the injunction was improvidently granted, and that the plaintiff is not entitled to the relief prayed for having a sufficient remedy at law. Judgment of the Court below reversed; and the injunction dissolved. Andebson, Justice.—I concur in the opinion.