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The plaintiff further alleged that the court of the United States for the northern bridge constituted a part of its line of rail. district of Illinois, to restrain the collection way, and had no separate earning capacity, of a tax assessed by the city of Chicago upon and no greater earning capacity than any his shares in the bank, alleging, among other other equal number of feet of its line of rail. things, that the tax was illegal and void, beway, and was used exclusively by it in trans. cause the tax was not uniform and equal porting freight and passengers across the with taxes on other property as required by Ohio river to and from the states of West the Constitution of the state, and because Virginia and Ohio; and that it was advised the shares were taxable only at the domicil and believed that the bridge was an instru. of the owner and therefore were not property ment of interstate commerce, and was not, as within the jurisdiction of the state of Illi. a separate structure from its line of rail. nois. This court, speaking by Mr. Justice way, a proper subject for taxation by the Field, without considering the validity of the state of West Virginia in the manner above objections to the tax, held that the bill could set forth.

not be maintained, saying: "Assuming the The bill then charged that the tax upon tax to *be illegal and void, we do not think (3A; the bridge was illegal and unjust, and con- any ground is presented by the bill, justify. stituted a cloud upon the title to the bridge, ing the interposition of a court of equity to and that by reason of that clause of the Con- enjoin its collection. The illegality of the stitution of the United States, which gives tax and the threatened sale of the shares for Congress control over interstate commerce,

its payment constitute of themselves alone the circuit court of the United States for

no ground for such interposition. There the district of West Virginia was clothed must be some special circunstances attend. with authority and jurisdiction to restrain ing a threatened injury of this kind, distinand to prevent the assessment and collec- guishing it from a common trespass, and tion of this illegal and unjust tax; and bringing the case under some recognized head prayed for an injunction against its assess

of equity jurisdiction, before the preventive ment and collection, and for 7ther relief.

remedy of injunction can be invoked. It is The bill was sworn to March 18, 1895; and upon taxation that the several states chiefly was filed March 25, 1895, together with an

rely to obtain the means to carry on their affidavit to the effect that, since the bill was

respective governments, and it is of the ut. sworn to, the sheriff had levied upon one of most importance to all of them that the the plaintiff's freight engines for the purpose should be interfered with as little as possible.

modes adopted to enforce the taxes levied of enforcing the collection of the tax upon Any delay in the proceedings of the officers, the bridge. Upon the filing of the bill, a temporary injunction was granted as prayed the taxes may derange the operations of the

whom the duty is devolved of collecting for.

A general demurrer to the bill was after government, and thereby cause serious detri(87) wards filed and *sustained, the injunction therefore, allow its injunction to issue to re

ment to the public. No court of equity will, dissolved, and the bill dismissed. The strain their action, except where it may be plaintiff appealed to this court, under the act of March 3, 1891, chap. 517, $ 5. 26 Stat. necessary to protect the rights of the citi. at L. 828.

zen whose property is taxed, and he has no adequate remedy by the ordinary processes of

the law,” 11 Wall. 109, 110 (20: 66). “The Messrs. J. Dunbar and J. B. Sommer- party of whom an illegal tax is collected has ville, for appellant. Messrs. T. s. Riley, Thayer Melvin, against the officer making the collection or

ordinarily ample remedy, either by action and Edgar P. Rucker, Attorney General of the body to whom the tax is paid. Here such West Virginia, for appellee.

remedy existed. If the tax was illegal, the [37] *Mr. Justice Gray, after stating the case, plaintiff protesting against its enforcement del sered the opinion of the court:

might have had his action, after it was paid. The collection of taxes assessed under the against the officer or the city to recover back authority of a state is not to be restrained the money, or he might have prosecuted by writ of injunction from a court of the either for his damages. No irreparable injury United States, unless it clearly appears, not would have followed to him from its colleconly that the tax is illegal, but that the own

tion. Nor would he have been compelled to er of the property taxed has no adequate resort to a multiplicity of suits to determine remedy by the ordinary processes of the law, his rights. His entire claim might have been and that there are special circumstances embraced in a single action.” 11 Wall. 112 bringing the case under some recognized head

[20: 67). of equity jurisdiction. Dows v. Chicago, 11

In the State Railroad Tax Cases this court, Wall. 108 [20: 65); Hannewinkle v. George- in a careful and thorough opinion delivered town, 15 Wall. 547 [21: 231]; State Rail. by Mr. Justice Miller, stated that "it has road Tax Cases, 92 U. S. 575 [23: 663]; been repeatedly decided that neither the mere Union Pacific Railway Co. v. Cheyenne, 113 illegality of the tax complained of, nor its U. S. 516 [28: 1098]; Milwaukee v. Koemer, injustice nor irregularity, of themselves, give 116 U. S. 219 [29: 612]; Shelton v. Platt, the right to an injunction in a court of equi- [39] 139 U. S. 591 134: 273].

ty;" referred to section 3224 of the Revised In Dows v. Chicago a citizen of the state of Statutes, which provides that "no suit for New York, owning shares in a national bank the purpose of restraining the assessment or organized and doing business in the city of collection of any tax shall be maintained in Chicago, filed a bill in equity, in the circuit any court;” and said that "though this was

sons.

intended to apply alone to taxes levied by the pany under a statute of the state of TennesUnited States, it shows the sense of Congress see, alleged to be contrary to the Constituof the evils to be feared if courts of justice tion of the United States. The bill averred coull, in any case, interfere with the process that the comptroller had issued a warrant of of collecting the taxes on which the govern- distress to a sheriff to collect such taxes for ment depends for its continued existence.” two years, the sheriff had levied or was The court then quoted from Dows v. Chicago, about to levy the warrant on the property and Hannewinkle v. Georgetown, above cited, of the company, and the comptroller was and proceeded as follows: "We do not propose about to issue a like warrant to collect the to lay down in these cases any absolute lim-tax for a third year; that the property of itation of the powers of a court of equity in the company in Tennessee was employed in in. restraining the collection of illegal taxes. terstate commerce in the express business, But we may say that, in addition to illegal- and was necessary to the conduct of it; and ity, hardship, or irregularity, the case must that the seizure by the sheriff would greatly be brought within some of the recognized embarrass the company in the conduct of foundations of equitable jurisdiction; and that business and subject it to heavy loss that mere errors or excess in valuation, or and damage, and the public served by it to hardship or injustice of the law, or any great loss and inconvenience. This court grievance which can be remedied by a suit held that, even if the statute was unconsti. at law, either before or after payment of tax- tutional and the tax void, the bill could not es, will not justify a court of equity to inter- be maintained, and, speaking by the Chief pose by injunction to stay collection of a tax. Justice, said: "The trespass involved in the One of the reasons why a court should not levy of the distress warrant was not shown thus interfere, as it would in any transaction to be continuous, destructive, inflictive of between individuals, is that it has no power injury, incapable of being measured in to apportion the tax or to make a new assess- money, or committed by irresponsible per. ment, or to direct another to be made by the So far as appeared, complete compenproper officers of the state. These officers, sation for the resulting injury could have and the manner in which they shall exercise been had by recovery of damages *in an ac- [41] their functions, are wholly beyond the power tion at law. There was no allegation of inof the court when so acting. The levy of ability on the part of the express .company taxes is not a judicial function. Its exer- to pay the amount of the taxes claimed, nor cise, by the Constitutions of all the states, any averment showing that the seizure and and by the theory of our English origin, is sale of the particular property which might exclusively legislative. A court of equity is, be levied on would subject it to loss, damtherefore, hampered in the exercise of its age, and inconvenience which would be in jurisdiction by the necessity of enjoining the their nature irremediable.” The court went tax complained of, in whole or in part, with on to say that another statute of the state out any power of doing complete justice by (which had been adjudged by this court in making, cr causing to be made, a new assess- Tennessee y. Sneed, 96 U. 8. 69 [24: 610), to ment on any principle it may decide to be afford a simple and effective remedy) prothe right one. In this manner, it may, by vided that where an officer charged by law enjoining the levy, enable the complainant with the collection of a tax took any steps to escape wholly the tax for the period of to collect it, a party conceiving it to be untime complained of, though it be obvious that just or illegal "might pay it under protest he ought to pay a tax if imposed in the prop and sue the officer to recover it back, and er manner. 92 U. S. 613-615 [23: 673, should have no other remedy by injunction 674).

or otherwise. The court observed that "leg. (40). *In Union Pacific Railway Co. v.Cheyenne, islation of this character has been called for

in which the Union Pacific Railway Company by the embarrassments resulting from the obtained an injunction against the levy of a improvident employment of the writ of intax by the city of Cheyenne, the facts were peculiar. The plaintiff, owning many lots of public revenue; and, even in its absence, the

junction in arresting the collection of the land in that city, had paid a tax assessed on strong arm of the court of chancery ought all its property by a board of equalization not to be interposed in that direction, except under a general statute of the territory of Wyoming, and had also been taxed by the where resort to that court is grounded upon city of Cheyenne under provisions of its the settled principles which govern its jurischarter which had been repealed by that stat- diction;" and that the jurisdiction exercised ute; and the bill showed, as stated in the by the courts of the United States to restrain opinion, that the levy complained of "would by injunction the collection of a tax wholly involve the plaintiff in a multiplicity of suits illegal and void had always been rested on as to the title of lots laid out and being sold; other grounds than merely the unconstituwould prevent their sale; and would cloud tionality of the tax. 139 Ŭ. S. 596–598 [35: the title to all its real estate.” 113 U. s. 276, 277]. 526, 527 [28: 1102].

In the light of these decisions we proceed In Shelton v. Platt, 139 U. S. 591 [35: to an examination of the provisions of the 273), the president in behalf of himself and Code of West Virginia of 1891, chap. 29, § other members of an express company, a 67, under which the tax upon the plaintiffs’ joint-stock company of the state of New bridge was assessed. York, filed a bill in equity in a circuit court That section requires every corporation, of the United States in Tennessee to restrain owning or operating a railroad wholly or the collection of a license tax upon the com- partly within the state, to make, through

its principal officers, to the auditor of the and Ohio was real estate. It was a “build. state, on or before the 1st of April in each ing or structure,” within the proper meaning year, a return in writing, under oath, show- of the words. Bridge Proprietors v. Hoing, among other things, the following: lst. boken Land & Improv. Co. l Wall. 116, 147 The whole number of its miles of railroad (17: 571, 577]; (State), Whilall, v. Glouceswithin the state. 2d. If the railroad is part- ter County Freeholders, 40 N. J. L. 302, 305. ly, within and partly without the state, the and it had been declared by Congress to be whole number of miles within, and of those "a lawful structure.” Act of July 14, 1862; without the state, including all its branches. 12 Stat. at L. 569, chap. 167. The fact that 3d. “Its railroad track in each county in the bridge was an instrument of interstate this state through which it runs, giving the commerce did not exempt so much of it as

whole number of miles of road in the county, was within West Virginia from taxation by [42] including the *track and its branches and side the state. Henderson Bridge Co. v. Hender

and second tracks, switches, and turnouts son City, 141 U. S. 679 [35: 900). therein; and the fair cash value per mile According to the facts alleged in the bill of such railroad in each county, including and admitted by the demurrer, the plaintiff in such valuation such main track, branches, has been assessed by the board of public side and second tracks, switches, and turn- works one sum upon the whole length of its outs." 4th. All its rolling stock, and the railroad track within the state, and another fair cash value thereof, distinguishing be- sum upon that part of the bridge within the tween what is used wholly within the state, state, as a separate structure. and what is used partly within and partly The plaintiff alleged in the bill that its rewithout the state, and the proportionate turn included, in the number of miles of its value of the latter, according to the time main track, so much of the bridge as lay used and the number of miles run thereby in within the state; and contended that the and out of the state; "and the proportional bridge was included in “its railroad track,” cash value thereof to each county in this within the meaning of the third subdivision state through which such railroad runs." of the section of the code above quoted, and 5th. “Its depots, station houses, freight therefore should have been assessed only as houses, machine and repair shops and ma- so many feet of the railroad. But the rechinery therein, and all other buildings, turn does not mention the bridge; and, if it structures, and appendages connected there was included in the term “railroad track” in to or used therewith, together with all other that subdivision, the increased value of the real estate, other than its railroad track, track by reason of the bridge might properly owned or used by it in connection with its ve taken into consideration in estimating the railroad, and not otherwise taxed, including value of the railroad track, and the assess telegraph lines owned or used by it; and the ment of the track and the bridge separately fair cash value of all buildings and struct would seem to be a difference of form rather ures, and all machinery and appendages, and than of substance. Pittsburgh, C. C. & St. of each parcel of such real estate, including L. Railway Co. v. Backus, 154 U. S. 421, such telegraph line, and the cash value 429 [38: 1031, 1037]; Robertson v. Anderthereof in each county in this state in which son, 57 Iowa, 165. it is located.”

If the bridge was not covered by the third The return made by the railroad company subdivision, it was certainly included in the to the auditor is to be laid by him, as soon as fifth. Th subdivision begins by designatpracticable, before the board of public works. ing “depots, station houses, freight houses, If the return is satisfactory to the board, the machine and repair shops and machinery board shall approve it, and, by an order en therein, and all other buildings, *structures, i 44] tered upon its records, direct the auditor to and appendages connected thereto or used assess the property of the company with therewith.” It was argued that the words taxes, and he shall assess it as afterwards "thereto” and “therewith," in this sentence, provided. But if the return is not satisfac- referred to the same antecedent as the pretory, the board is authorized to proceed, in vious word "therein;" and that “therein" such manner as it may deem best, to obtain referred to depots, station houses, freight the information required to be furnished by houses, machine and repair shops, and there the return; and may compel the attendance fore “thereto” and “therewith” must be of witnesses and the production of papers; equally restricted. But if a strictly gram. and is directed, as soon as possible after hav- matical construction should be adopted, it ing procured the necessary information, to may well be doubted whether "machinery assess and fix the fair cash value of all the therein” related to anything but machine property required to be returned, in each and repair shops; and it can hardly have county through which the railroad runs; been the intention of the legislature to limit and, in ascertaining such value, to consider the words "buildings, structures, and apthe return, and all the evidence and informa- pendages connected thereto or used theretion that it has been able to procure, and all with” to those connected or used with such such as may be offered by the railroad com- shops only. If the bridge is not a "building pany.

or structure,” within the meaning of those [43] *The legislature evidently intended that the words, as here used, it certainly (if not part

annual return should include all the real es- of the "railroad track," under the third subtate owned or used by the ra ad company division) comes within the words next fol. in connection with its railroad within the lowing, "together with all other real estate, state. The plaintiff's bridge across the Ohio other than its railroad track, owned or used river between the states of West Virginia by it in connection with its railroad.”. By

a clause near the end of the same section, it determine whether it should be treated as is provided that "all buildings and real es- “railroad track,” or as a building or structtate owned by such company, and used or oc- ure," or as “other real estate, owned or used cupied for any purpose not immediately con- in connection with the railroad.” In any nected with its railroad," are to be taxed like view, its assessment and valuation by the similar property of individuals.

board of public works, of which the plaintiff The same section further provides that the complains, was subject to review by the *cir. (46] decision made by the board of public works cuit court of the county upon an appeal seashall be final, unless the railroad company, sonably taken by the railroad company, within thirty days after such decision comes The section, indeed, also provides that, to its knowledge, appeals (which it is ex. when the return made to the auditor is satispressly authorized by the statute to do) from factory to the board of public works, or when the decision, as to the assessment and valua- an assessment is made by that board, the tion made in each county through which the auditor shall immediately certify, to the railroad runs, to the circuit court of that county court of each county through which county. The appeal is to have precedence the railroad runs, the value of the property over all other cases, and is to be tried as soon of the railroad company therein, as valued as possible after it is entered. That court, and assessed as aforesaid; that that court on such appeal, is to hear all legal evidence shall apportion that value among the disoffered by the appellant, or by the state, tricts, school districts, and municipal corpocounty, district, or municipal corporation, rations through which the railroad runs; and, if satisfied that the valuation is fixed and that the clerk of that court, within by the board of public works is correct, to thirty days after it has laid the county and confirm the same; but, if satisfied that such district levies, shall certify to the auditor valuation is too high or too low, to correct the apportionment so made; that the record.

it, and to ascertain and fix the true value of ing officer of each district or municipal cor(45) the property * according to the facts proved, poration through which the road runs shall

, and certify such value to the auditor. within thirty days after a levy is laid there

This provision for a review and correction, in, certify to the auditor the amount levied; by the circuit court of the county, of the as- and that, if any such officer fails to do so, the sessment made by the board of public works, auditor may obtain the rate of taxation from affords a convenient and adequate remedy for the land books in his office or from any other any error in the taxation, and has been held source. by the highest court of the state to be in ac- But the provision directing the auditor to cordance with its Constitution. Wheeling immediately certify the assessment made by Bridge & T. Railway Co. v. Paull, 39 W. Va. the board of public works to the county 142.

court of each county must be construed as That court has often had occasion to in subordinate to and controlled by the next quire how far the action of the circuit court preceding provision giving the right of apof the county, in this respect, is adminis- peal from the board of public works to the trative only, and how far it may be considered circuit court of the county—as clearly apas judicial in its nature. Pittsburg, C. & St. pears from the next succeeding provision, by L. Railway Co. v. Board of Public Works, which it is after the value of the property of 28 W. Va. 264; Charleston & Southside the railroad company has been "fixed by the Bridge Co. v. Kanawha County Court, 41 W. board of public works, or by the circuit court Va. 658; State v. South Penn Oil Co. 42 W. on appeal as aforesaid” that the auditor is Va. 80. See also Upshur County v. Rich, directed to assess and charge the property 13.; U. S. 467 [34: 196].

of the company "with the taxes properly But it is not important, in this case, to chargeable thereon,” in a book to be kept by pursue that course of inquiry; since, in mat. him for that purpose. ters of taxation, it is sufficient that the party The statute also contains a provision that assessed should have an opportunity to be "no injunction shall be awarded by any court. heard, either before a judicial tribunal, or or judge to restrain the collection of the before a board of assessment, at some stage taxes, or any part of them, so assessed, exof the proceedings. Kelly v. Pittsburgh, cept upon the ground that the assessment 104 U. S. 78, (26: 658); Pittsburgh, 0. C. & thereof was in violation of the Constitution St. L. Railway Co. v. Backus, 154 U. S. 421, of the United States, or of this state, or that [38: 1031).

the same were fraudulently assessed, or that Even if, therefore, no previous notice of there was a mistake made by the auditor in the hearing before the board of public works the amount of taxes properly chargeable *on [47] was required by the statute, or was in fact the property of said corporation or company; given to this plaintiff (which is by no means and in the latter case no such injunction clear), yet the notice of its decision, with the shall be awarded unless application be first right to appeal therefrom to the circuit made to the auditor to correct the mistake court of the county, and there to be heard claimed, and the auditor shall refuse to do and to offer evidence, before the valuation of so, which facts shall be stated in the bill." its property for taxation was finally fixed, While this provision cannot, of course, bind Afforded the plaintiff all the notice to which the courts of the United States, it is nearly it was entitled.

in accord with the rule governing the exercise The railroad idge in question being lia of the jurisdiction in of those courts, ble to assessment under section 67, it is un- as established by the decisions cited at the necessary, for the purposes of this case, to beginning of this opinion.

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The statute further makes it the duty of the auditor, "as soon as possible after he completes the said assessments," to make out and transmit to the railroad company "a statement of all taxes and levies so charged;" and the duty of the railroad company "so assessed and charged" to pay "the whole amount of such taxes and levies upon its property" by the 20th of January "next after the assessment thereof;" and if the company does not pay "such taxes and levies" by that day, the auditor is directed to add ten per cent to the amount thereof to pay the expenses of collecting them, and to certify to the sheriff of each county "the amount of such taxes and levies assessed within his county."

In the present case, the bill does not allege that there was any fraud in the assessment; or that the defendants made any attempt to interfere with the plaintiff's ownership or control of its real estate; or that the plaintiff either made any application to the auditor to correct any supposed mistake in the assessment, or took any appeal from the decision of the board of public works to the circuit court of the county; or that, within the thirty days allowed for such an appeal, any attempt was made by the defendants, either to charge the plaintiff with the penalty of ten per cent for delay in payment of the taxes, or to levy upon its property for nonpayment of them.

UNITED STATES, Appt.,

v.

MARY A. WARDWELL, Admrx., of Will-
iam V. B. Wardwell, Deceased.

(See S. C. Reporter's ed. 48-58.)

U. S. Rev. Stat. § 1069-§§ 306, 308-stat-
ute of limitations as to a claim against
the United States.

1.

2.

3.

U. S. Rev. Stat. § 1069, is not merely a statute of limitations but also jurisdictional in its nature, and limiting the cases of which the court of claims can take cognizance.

U. S. Rev. Stat. §§ 306-308, contain promise by the government to hold the money covered into the Treasury under said sections, for the benefit of the owner until such time as he shall call for it. This is a continuing promise.

A claim against the United States for moneys carried to the credit of the payee of a check drawn by a disbursing officer in pursuance of U. S. Rev. Stat. § 306, for whica, by 308, the proper officer of the Treasury is required to give a warrant, does not accrue at the time the check is issued or at the time when it may be lost or destroyed, so that the statute of limitations (U. S. Rev. Stat. § 1069) will begin to run, but it will accrue only when the promise made by § 308 is broken, as, by refusal of an application for a warrant.

[No. 53.]

On the contrary, the bill would appear to have been studiously framed to avoid mak- Argued October 20, 1898. Decided Noveming any such allegation. The bill, which was sworn to on March 18, 1895, alleged that

on January 19, 1895 (sixty days before), the plaintiff received notice from the auditor of the decision of the board of public works; that "on the day of, 1895" (which [48] might be any day before the bill was sworn to), the auditor added the ten per cent and certified to the sheriff the amount of the tax assessed with that addition; and that the sheriff "since said date" had demanded payment of both sums from the plaintiff; and the affidavit filed with the bill on March 25, 1895, shows that the sheriff's levy on one of the plaintiff's engines was made after the bill was sworn to.

The only reasonable inference from these vague allegations of the bill is that the auditor waited for more than thirty days, after giving the plaintiff notice of the decision of the board of public works, in order to afford full opportunity for an appeal from that decision; and that no penalty was imposed for delay in payment of the taxes, nor any active measure taken to enforce them, until it had become clear that the plaintiff did not intend to take such an appeal.

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The plaintiff, upon its own showing, having made no attempt to avail itself of the adequate remedies provided by the statute of the state for the review of the assessment complained of, is not entitled to maintain this bill.

Decree affirmed. 360

ber 28, 1898.

APPEAL from a judgment of the Court
of Claims in favor of Mary A. Wardwell,
administratrix, etc., against the United
States for the amount of three checks drawn
on the Assistant Treasurer of the United
States in payment of claims against it, and
which were subsequently lost and destroyed
and the amounts thereof covered into the
Treasury. Affirmed.

See same case below, 32 Ct. Cl. 30.

Statement by Mr. Justice Brewer: *This is an appeal from the court of claims. [49] The facts as found by that court are that in June, 1869, three checks were drawn in favor of William V. B. Wardwell, one by Major W. B. Rochester, paymaster, United States Army, and two by Major M. I. Ludington, quartermaster, United States Army, all drawn on the Assistant Treasurer of the United States in New York, and in payment of lawful claims of Wardwell against the United States. Subsequently to the issue of the checks and while still in the possession and ownership of Wardwell they were lost or destroyed, probably in a depredation committed on his house by Indians in the year 1872. None of the checks having been presented for payment the amounts thereof were covered into the Treasury of the United States and carried to the account of "outstanding liabilitics" in pursuance of the act 172 U. S.

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