Glen Inv Co. v. Romero

• Decision Date: 14 October 1918
• Docket Number: 5032.
• Citation: 254 F. 239
• Parties: GLEN INV. CO. v. ROMERO, County Treasurer.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F. 239

GLEN INV. CO. v. ROMERO, County Treasurer.

No. 5032.

United States Court of Appeals, Eighth Circuit.

October 14, 1918

Edwin H. Park, of Denver, Colo. (Thomas H. Gibson, of Denver Colo., on the brief), for appellant.

Chester A. Hunker, of Las Vegas, N.M. (S. B. Davis, Jr., of East Las Vegas, N.M., on the brief), for appellee.

Before HOOK, CARLAND, and STONE, Circuit Judges.

STONE Circuit Judge.

Appellant is purchaser from the county and holder of tax sale certificates issued by the proper authorities of the county of San Miguel, N.M. These certificates had been originally issued to the county at the time it bought in the land for nonpayment of taxes. Under a state statute, when the county had bought in land for two or more successive years it might under certain circumstances here present, sell such sale certificates at public auction to the highest cash bidder for not less than the minimum sum fixed by the county commissioners. At such an auction sale appellant bought a large number of such sale certificates held by the county. The appellee is the treasurer and ex officio collector of that county. Under the statutes of New Mexico the land covered by the above sale certificates is subject to redemption by the owner. At the time of redemption the county treasurer, to whom the redemption money is paid for the use of the sale certificate holder, is required to issue to the owner a redemption certificate, which is made conclusive proof of such redemption. The appellee treasurer was threatening to issue redemption certificates against the above several sale certificates upon payment by the respective owners of the amount paid by appellant for each of such sale certificates, plus interest at the rate of 12 per centum annually since the date of purchase. Appellant contended that the amount required for such redemption was the amount of taxes originally levied upon each of the several parcels of property, together with penalties, costs and interest as set forth in the several sale certificates. To prevent the issue of the redemption certificates as threatened, appellant sought an injunction.

After answer, the jurisdiction of the court below was there successfully assailed by motion upon two grounds: First, that, although a diversity of citizenship, the controversial amount was less than $3,000; and, second, that no federal question was involved. Plaintiff claimed the right to receive, at redemption of the certificates held by him, the original amount of the taxes, costs, penalties, and interest from the date of the certificate. Defendant claimed that such recovery should be confined to the purchase price paid by plaintiff for the certificates, with interest thereon from date of purchase. The purchase price equaled the original tax. Therefore the amount in dispute was the costs (in connection with the taxation), penalties, and interest which had accrued to date of purchase. The costs here intended are not the costs of this present suit, but such as arose in connection with the tax sale proceedings. The interest is not merely that incidental or auxiliary to the amount in dispute, but is one of the main elements or items making up that amount. Such costs and interest are not within the meaning of those terms as used in the section (Judicial Code, Sec. 24; Comp. St. 1916, Sec. 991) which excludes such from inclusion in the jurisdictional amount. As said in Edwards v. Bates County, 163 U.S. 269, 273, 16 Sup.Ct. 967, 41 L.Ed. 155, the distinction is between 'a principal and accessory demand.' The matter in dispute here is not the amount of taxes, but what amount beyond the taxes (such as costs, penalties, and interest) must be paid. Admittedly this sum exceeded $3,000. The jurisdictional amount having been shown, with an undisputed diversity of citizenship, the court should have retained jurisdiction of the cause.

Strictly speaking, determination of the existence of jurisdiction as above would cover all matters really before us upon this appeal. However, the parties have expressed their desire that a decision be made upon the merits. A refusal of this request would have the sole result of sending the cause to the trial court, whence it would return here. The facts are fully agreed in the pleadings, and the differences are purely as to the law. We see no good reason to impose upon these litigants the delay and expense of again presenting to the trial court and to this court the precise legal questions upon the same agreed facts which were put before us in briefs and arguments. Nor should the time of these courts be wasted in such useless repetition. We will not consider whether there is in this case a federal question which could cast the jurisdiction of the national courts. Having assumed jurisdiction because of diversity of citizenship, we will treat the merits of the case.

The Supreme Court of New Mexico (State ex rel. Cunningham et al. v. Romero, 22 N.M. 325, 161 P. 1103) has decided, in a case involving some of these same certificates and others of like character, that the proper redemption amount upon such certificates is the purchase price, with interest thereon at 1 per centum monthly from date of purchase, to which should be added the amount of any subsequent taxes paid by the purchaser after purchase, with the same interest thereon from payment. Appellee claims that this decision by the highest state court is conclusive upon this court. If this be true, then that decision rules this case. Appellant, however, contends, first, that the result reached in that case would impair the obligation of the contract represented in the certificates; and, second, that this court is not bound by that decision, but should examine the matter for itself, in which event its construction of the statutes would prevail.

As to the impairment of the contract: The contract intended is that contained in the certificate of sale. We waive, without decision, the suggestions that such a certificate is not a contract within the constitutional provision, and that the political and legal character of a county would prevent the application of that provision. Conceding, but not deciding that the certificates are fully protected by the...