Buckingham v. Lord
| Decision Date | 19 April 1971 |
| Docket Number | Civ. No. 1947. |
| Citation | 326 F. Supp. 218 |
| Parties | Donald J. BUCKINGHAM and Myrtle E. Buckingham for themselves and all other persons similarly situated, Plaintiffs, v. Howard H. LORD, John C. Alley and J. Morley Cooper, individually and as members of the State Board of Equalization of the State of Montana, Defendants. |
| Court | U.S. District Court — District of Montana |
Fennessy, Crocker & Arness and Marshall G. Candee of Libby, Mont., for plaintiffs.
Edward Jene Bell, Tax Counsel, State Board of Equalization, Helena, Mont., for defendants.
The named plaintiffs, in a class action in three counts "for themselves and all other persons similarly situated", allege discrimination by the defendants, who are members of the State Board of Equalization of the State of Montana, through unequal assessments and taxation of the plaintiffs' property as compared with others of the same class.
Count one alleges a conspiracy to deprive "the plaintiffs of the equal protection of the laws and of equal privileges and immunities under the laws", in violation of 42 U.S.C. § 1985(3),1 with jurisdiction conferred by 28 U.S.C. § 1343(1).2 Count two alleges that plaintiffs have been deprived of "their property without due process of law and denied the equal protection of the laws and their property has been taken and is being taken for public use without just compensation", in violation of 42 U.S.C. § 1983,3 with jurisdiction conferred by 28 U.S.C. § 1343(3).4 Counts one and two seek damages in the amount of $58,800,000. Count three seeks declaratory and injunctive relief against continued deprivation, pursuant to 28 U.S.C. § 2201,5 with jurisdiction conferred by 28 U.S.C. § 1331.6
Defendants have moved to dismiss on the ground, inter alia, that this court "lacks jurisdiction over the subject matter of this action, which is a property or monetary right arising under the property tax laws of the state of Montana."
Preliminary to a consideration of the motion to dismiss, it is necessary to dispose of plaintiffs' contention, asserted at oral argument, that a three-judge court should be convened pursuant to 28 U.S.C. §§ 2281 and 2284.7 Section 2281 requires a three-judge court for every case seeking to enjoin the enforcement of a state statute "upon the ground of the unconstitutionality of such statute * * *." It is well established, however, that until "the complainant in the district court attacks the constitutionality of the statute, the case does not require the convening of a three-judge court * * *." Ex parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249.8
Where a plaintiff "is seeking to draw into issue the constitutionality not of a statute, but of a departmental policy or regulation", or where the "issue is one of actual discrimination, rather than the constitutionality of a State law", the issue "may not properly be addressed to a three-judge court * * *." Nichols v. McGee, N.D.Cal.1959, 169 F.Supp. 721, 724, app. dismissed, 361 U.S. 6, 80 S.Ct. 90, 4 L.Ed.2d 52, and cases there cited.
The complaint here does not allege, nor do plaintiffs contend, that any state statute is unconstitutional. The letter addressed to the court recites that the action "draws in question the unconstitutionality of assessment procedures prescribed by the state board of equalization * * * as repugnant to the Constitution of the United States * * *", and expressly states, "Constitutionality of the statutes themselves is not challenged." This is not a proper case for a three-judge court.
Plaintiffs have brought this action for themselves and "all other persons similarly situated", which are "about 100,000 in number" located in all parts of Montana and elsewhere, who are "owners of and taxpayers upon town or city lots or improvements in the state of Montana." In support of their conspiracy charge (count one) and actual deprivation of constitutional rights (count two) they allege that the State of Montana "has specified the classes into which property is to be divided, and placed all land and town and city lots, with improvements, in a numbered Class Four for the purposes of taxation";9 that the defendants "under color of statute, regulation, custom or usage of the state, caused and required all assessments of the Class Four property * * * to be made, in the case of town and city lots and improvements at 40 per cent of full cash value, and in the case of other land, a substantial portion of which is owned and used by corporations, at special, preferential and discriminatorily lower values derived according to formulas prescribed by the defendants, including such factors as capitalization, productivity, retention, risk, income and profit."10
It is the plaintiffs' theory that "to the extent of the inequality in such proportions have relieved and discharged the property thus favored and the persons owning the same from their proportionate share of taxes, relinquished and suspended the power to tax corporations and corporate property and exacted from the plaintiffs the amount necessary to meet the resulting deficiency in the public revenues," they have been damaged in the sum of $58,800,000, which represents the amount of their property which has been taken without due process of law or just compensation.
Counsel for plaintiffs have cited no case in which the civil rights jurisdictional statute, § 1343, has been applied to a case involving alleged discrimination in the assessment and collection of property taxes. As a general rule this statute has been treated as "applicable to personal liberty rather than a property or monetary claim." Gray v. Morgan, 7 Cir. 1966, 371 F.2d 172, 175, cert. denied, 1967, 386 U.S. 1033, 87 S. Ct. 1484, 18 L.Ed.2d 596.
In a concurring opinion in Hague v. Committee for Industrial Organization, 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L. Ed. 1423, Mr. Justice Stone (joined on this point by Mr. Justice Reed and Chief Justice Hughes) considered the two jurisdictional statutes here involved, §§ 1331 and 1343. He said in part: "By treating § 1343 as conferring federal jurisdiction of suits brought under the Act of 1871 in which the right asserted is inherently incapable of pecuniary valuation, we harmonize the two parallel provisions of the Judicial Code, construe neither as superfluous, and give to each a scope in conformity with its history and manifest purpose." 307 U.S. at 530, 59 S.Ct. at 971. After distinguishing Holt v. Indiana Mfg. Co., 1900, 176 U.S. 68, 72, 20 S.Ct. 272, 44 L.Ed. 374, a suit to restrain alleged unconstitutional taxation of patent rights, held not to involve a "civil right" under the predecessor to § 1343, and other cases involving unconstitutional infringement of a right to personal liberty,11 Mr. Justice Stone concluded that the special jurisdictional statute applies "whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." 307 U. S. at 531, 59 S.Ct. at 971.
Numerous cases have followed Mr. Justice Stone's concurring opinion, including Bussie v. Long, supra, a class action against members of the Louisiana Tax Commission by Louisiana taxpayers alleging failure to comply with their Louisiana constitutional and statutory duty to establish actual cash value of all property for purpose of ad valorem tax assessments. After referring to the conclusion in the concurring opinion in Hague that the court did not have civil rights jurisdiction, the court suggested that the Supreme Court 383 F.2d at 769. The court held accordingly that the district court had correctly concluded that the case did not involve a civil rights complaint.
Relying in large part on Hague, Bussie v. Long, supra, and Gray v. Morgan, supra, a three-judge court in Hornbeak v. Hamm, M.D.Ala.1968, 283 F.Supp. 549, 551,12 held that jurisdiction was lacking under § 1343 in an action by Alabama taxpayers against the revenue commissioner seeking "an injunction against the defendant, and his successors in office, `from continuing, under color of statute, * * *, to deprive plaintiff and all other citizens and taxpayers similarly situated, of property without due process of law * * *.'" On appeal the Supreme Court affirmed the judgment without argument.13 393 U.S. 9, 89 S. Ct. 47, 21 L.Ed.2d 14.
The validity and effect of Justice Stone's construction of §§ 1343 and 1331 were considered most recently in Eisen v. Eastman, 2 Cir. 1969, 421 F.2d 560, cert. denied 1970, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75. In a scholarly and exhaustive opinion14 Judge Friendly points out that there "has been no thorough discussion by the Supreme Court of the scope of 28 U.S.C. § 1343(3) since Hague v. C.I.O.," and that, "Apart from its age, Hague casts an uncertain light because of the absence of a majority opinion." 421 F.2d at 563. The court held, "although with a good deal less than complete assurance, that Justice Stone's Hague formulation, generously construed, should continue to be regarded as the law of this circuit", and since the complaint "alleged only the loss of money, the district court's conclusion that jurisdiction under the Civil Rights Act was not established * * * was thus correct." Id. 421 F.2d at 566.
Eisen v. Eastman was an action by a landlord against a city district rent and rehabilitation director challenging the constitutionality of a city rent control law and the propriety of action by the director in reducing maximum rents chargeable. In considering various types of cases involving personal and property rights, Judge Friendly made this pertinent comment:
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Appling County v. Municipal Elec. Authority of Georgia, 79-1308
...denied 389 U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82 (1967). See also Schreiber v. Lugar, 518 F.2d 1099 (7th Cir. 1975); Buckingham v. Lord, 326 F.Supp. 218 (D.Mont.1971); Allanson v. Camp, 324 F.Supp. 734 (N.D.Ga.1971). See generally, Annot., 2 A.L.R.Fed. 855, 868 Citing Trenton v. New Jersey, ......
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