ance to be made for delinquency in the collection of the tax is so blended with the remainder of the section, and the several clauses are so dependent on each other, that they must all stand or fall together. The rule applicable to this point is forcibly stated by Chief Justice SHAW in Warren vs. Mayor of Charlestown (2 Gray, 98), who, after stating the general proposition that some portions of a statute may be held to be constitutional, while another portion may be pronounced void, and that in certain cases. the valid portion may stand, and the other be rejected, proceeds to say, that "this must be taken with this limitation, that the parts, so held respectively constitutional and unconstitutional, must be wholly independent of each other. But if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole; and that if all could not be carried into effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them." This case was quoted with approval in French vs. Teschmaker (24 Cal. 548), and doubtless states the law correctly. Tested by this rule, the whole of Section 3696 was void per se. In The statute authorized the State Board of Equalization to determine the rate of taxation, coupled with the condition that it should make an allowance for delinquency in the collection of the tax. The power was to be exercised only on this condition, and the condition having failed on constitutional grounds, the power to determine the rate fell with it. other words, the two clauses were "dependent, conditional, or connected," in the language of Chief Justice SHAW, and must stand or fall together. This becomes the more apparent from the fact that if the clause requiring an allowance for the delinquency be stricken out, the State Board of Equalization has no authority to fix any rate of taxation, except such as would produce the requisite amount of revenue, on the hypothesis that all the taxes would be paid; and as there will always be, under our revenue system-as is demonstrated by long experience-a considerable delinquency in the collection of taxes, the result would be, that the rate fixed by the Board, and the only rate which, by the terms of the statute, they had the right to establish, would be insufficient to produce the required amount of revenue. But we need not elaborate this point further, as it is obvious, we think, that no portion of the section can stand if the clause relating to the allowance for the deficiency be stricken out; and the necessary result would be, that the Tax Collector's deed would have been void on its face. Section 3786 of the Political Code required the Tax Collector's deed to recite, among other matters, that the land was sold for taxes, "giving the amount and year of the assessment." The deed, therefore, would have shown on its face that it was for a State tax purporting to have been levied for the fiscal year of 1872-3, whereas, as has been shown, there was no valid law authorizing a State tax to be levied or collected for that year. The deed would therefore have been void on its face-so far as it related to the State tax. Nor would it have been otherwise if it had appeared on the face of the deed, that the same land was sold at the same time, to the same purchaser, for a valid municipal tax. It is a familiar rule, that if land be sold for taxes, a part of which are valid and a part illegal, the whole sale and the tax deed will be void. For these reasons, we are of opinion that when the plaintiff paid the money to the defendant, he was under no legal duress, and the payment must be deemed to have been voluntary. In such cases, it is well settled that the money can not be recovered back, and the judgment in the court below should have been for the defendant. Nor do we see any reason for remanding the cause for a new trial. It is evident the plaintiff could not improve his case on another trial. Judgment and order reversed and cause remanded, with directions to the court below to dismiss the action. [No. 6,125.] [Filed August 26, 1878.] THE BANK OF CALIFORNIA, APPELLANT, VS. THE FRESNO CANAL & IRRIGATING CO., RESPONDENT. INJUNCTION-WHEN WILL NOT LIE.-The plaintiff alleged that the defendant was about to enter into other contracts for the delivery of water to other persons, whereby the defendant will have contracted for the delivery of more water than it was able to supply. No allegation was made that the contract under which the plaintiff claimed had been broken. Plaintiff prayed for an injunction. Held: no injunction would lie. Appeal from Thirteenth District Court, Fresno County. The complaint alleges that a contract was entered into between the defendant and W. T. Chapman, plaintiff's assignor, by which, in consideration of $50,000 and certain annual payments, the defendant granted to said Chapman 200 cubic feet of water per second, to be delivered as required by notice. Chapman assigned 85 cubic feet to the plaintiff. The plaintiff notified the defendant to deliver the whole 85 cubic feet. The complaint further alleges that these 85 cubic feet, together with other contracts for supplying water entered into by defendant before these, more than exhausted the entire capacity of the river from whence the defendant obtains the water. That nevertheless, the defendant, through its directors, has authorized its President to sell more; and that if defendant is allowed to sell additional water rights, great damage will be done plaintiff, and a multiplicity of suits will arise; and that the company is pecuniarily irresponsible. An injunction is prayed for restraining the defendant from selling, or compacting to sell, additional water rights. In its answer, the defendant admits the contracts alleged by the plaintiff, but claims that they were made in fraud of the company; and it further avers that it has ability to furnish 341 water rights, in addition to all its contracts. Denies that a multiplicity of suits will arise. Denies insolvency. On motion of defendant, the injunction previously granted was dissolved, from which order the plaintiff appealed. H. S. Dixon and B. S. Brooks, with Wilson & Wilson and George A. Nourse, of counsel for appellants. W. H. L. Barnes, for respondent. PER CURIAM. The appeal is taken from an order dissolving an injunction. The complaint does not state a cause of action. It is not alleged that the defendant has broken the contract under which the plaintiff claims the 85 cubic feet of water, but only that the defendant is about to enter into other contracts for the delivery of water to other persons, whereby the defendant will have contracted for the delivery of more water in the aggregate than the capacity of its ditch will enable it to supply. But even if this be true in point of fact, it does not follow that the plaintiff will be injured thereby, nor can it be intended that the defendant will fail, or refuse to deliver to the plaintiff, the quantity of water claimed in the complaint. The number of contracts in which the defendant is about to enter, and the quantity of water it is about to engage to deliver, are therefore matters which do not concern the plaintiff, in a legal point of view. We think that there is nothing in the complaint entitling the plaintiff to an injunction, and that the injunction was correctly dissolved. It is proper to remark, however, that this disposition of the appeal in no way affects the substantial rights, if any, of the plaintiff to the water in question; and that the defense set up in the answer, or attempted to be set up, to the effect that the contract between Chapman and the defendant was fraudulent, does not constitute an element of the judgment rendered here. If the defendant should refuse to deliver the water claimed by the plaintiff, and should seek to justify the refusal by setting up that the contract with Chapman was fraudulent in its character, it will then be proper to consider of that defense. Order affirmed. [No. 5,908.] [Filed August 26, 1878.] IN THE MATTER OF THE ESTATE OF CROSBY. ADMINISTRATION-JUDGMENTS WITHOUT ASSIGNMENT-HOW PRESENTED AND ALLOWED.-A judgment without assignment can not be presented as a claim against an estate, and allowed, in the name and for the use of a third party-a stranger to the judgment-notwithstanding he is the equitable owner of it. And as the heirs may contest the validity of allowed claims on a petition for the sale of real estate, the decision of a Probate Judge allowing the claim is not conclusive; and in a case like the present, they may show affirmatively that the judgment had never been assigned to the party presenting it, and was therefore improperly presented and allowed. Appeal from the Probate Court of Santa Clara County. The administrator of the estate of Samuel J. Crosby, deceased, filed his petition for the sale of real estate, to settle certain claims proved and allowed against the estate, alleging insufficiency of personal property. The claims amounted in the aggregate to $24,014 07. Among the claims allowed was that of E. P. Reed, being a judgment in favor of Elliott Reed against the said Samuel J. Crosby, upon a promissory note, payable to the said Elliott Reed. The heirs of the deceased made objections to the sale, urging incorrectness and staleness of the claims, alleging that the claimants were barred by reason of gross neglect and staleness of their claims, they having been allowed against the estate over seventeen years ago. The court below found the following facts, among others: That the Probate Judge allowed on the 28th of September, 1859, a claim presented by E. P. Reed, which was a judgment in favor of Elliott Reed against said Crosby, deceased; that it was upon a promissory note made by said Crosby to said Elliott Reed; that the money for which said note was given was the money of E. P. Reed, and no assignment of said judgment was ever made from Elliott Reed to E. P. Reed. The court ordered a sale of the real property to satisfy all |