City of Cleveland, Tenn. v. United States

• Citation: 166 F. 677
• Decision Date: 22 January 1909
• Docket Number: 1,820.
• Parties: CITY OF CLEVELAND, TENN., et al. v. UNITED STATES et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

166 F. 677

CITY OF CLEVELAND, TENN., et al. v. UNITED STATES et al.

No. 1,820.

United States Court of Appeals, Sixth Circuit.

January 22, 1909

J. B Sizer, for plaintiffs in error.

F. R Spurlock, for defendants in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

For the fifth time, the litigation in this case is brought before us for review. The previous decisions of this court are reported in 98 F. 657, 39 C.C.A. 211, 111 F. 341, 49 C.C.A. 383, 127 F. 667, 62 C.C.A. 393, and 152 F. 907, 82 C.C.A. 55. The rights of the parties were settled on the first appeal (98 F 657, 39 C.C.A. 211) when, reversing the decree of the court below, we directed a decree for the complainant in the sum of $9,852.12 and costs. This was in 1899. Since that time the complainant has been vainly endeavoring to collect his judgment; and the defendant, the city of Cleveland, has persistently interposed all conceivable defenses to defeat it. The history of the proceedings is exhibited in the reports of the former decisions of this court above referred to. For the present purpose it is only necessary to say that on the rendition of the final judgment directed by this court and some time in the year 1900, an execution was issued and returned nulla bona. Thereupon a writ of mandamus was sued out to compel the levying of a special tax to pay the judgment. This was resisted upon the ground that the city was so limited by its charter that it had no power to levy taxes beyond the amount of 75 cents on each $100 of its valuation and this had all been required for current expenses. The Circuit Court overruled this defense, holding that the limitation referred to did not include taxes to meet obligations such as that of the complainant; and a peremptory order to make the levy was made. To review this order the city brought a writ of error, and, for the reason that we thought the lower court was in error in thinking that the limitation in the charter did not include taxation to meet such an obligation as this, we reversed the order and gave certain specific instructions to the court below, found at 111 F. 349, 49 C.C.A. 383, which we deemed sufficient for the intended purpose. But they have not proved so. The case was brought here again, but we were obliged to reverse the order then in question on account of certain faults in the procedure which were insuperable; and the cause was sent back for further proceedings, with instructions, among which was one to require a further return and pleadings thereon which seemed necessary, in order to determine whether the officials of the city were complying with the order directed in October, 1901, 111 F. 341, 49 C.C.A. 383. Further proceedings were had. The further return showed that in several particulars the rights of the complainant had been disregarded, but that in some of them, not all, the results were past remedy upon the pleadings as they were originally framed, and the further fact that the officials who had participated in the wrongful acts were no longer in office and the diverted funds were past recall. The court below had held, however, that the return was sufficient because it showed that for the years 1900, 1901, 1902, and 1903 taxes to the limit allowed by the charter had been collected and disbursed for current expenses, and overruled all the exceptions taken by the relator to the return, and further ordered the relator to pay the costs of the proceedings. We reversed this order, and because it then appeared in the record that a part of the taxes raised in previous years had been diverted to the building of a schoolhouse, which the city might have built with moneys which it was empowered to raise by a special provision in its charter, and because, also, it appeared that under the provisions of an act of the Legislature of Tennessee repealing the provision in the charter of the city relating to taxation and the substitution of a new method under which the county assessor made the valuation for the county which the city copied, and the assessor had been valuing the property in the city and elsewhere at no more than 70 per cent. of its actual value, we directed an amendment which would open up those subjects, so that justice might be done in those regards. This has now been done. The particulars have been ascertained, and upon a further hearing the court below has made an order, the provisions of which are challenged by the defendant. This brings us to the consideration of the case in its present aspects.

The principal matter in controversy is that part of the order of the court below which directs the recorder of the city to make an assessment of the property therein for the years 1902, 1903, 1904, and 1905, respectively, at its full and true value, and to deduct from each description thereof the amount at which it was assessed by the county assessor, and, upon the difference found, to assess and collect 75 cents for each $100 thereof, to the end that it be applied to the satisfaction of the complainants' judgment. We have stated the substance. No fault in the particular details is complained of.

This mandate to the recorder is grounded upon the following facts: By the provisions of the charter of the city at the time when the complainant's contract with it was made, the recorder of the city was intrusted with the duty of assessing for taxation all property in the city, and with the authority for collecting all taxes levied thereon, and no other person or officer shared in either of these duties.

He was entirely independent of state and county officers, and of any rules which they might prescribe for their own conduct. The provision was this:

'He (the recorder) shall render, semi-annually each year, and as often as the board may require, a full and complete statement of the finances of said corporation; and he shall assess and collect the taxes for said corporation, and, within thirty days from the time of assessing said taxes, deliver to the city a tax list, which shall be the authority of the city for collecting the taxes of said city; and he shall preserve a copy of said tax lists with the papers of said corporation.'

By the Constitution and laws of the state, he was required to assess the property at its actual value, and the plaintiff by virtue of his contract became entitled to claim the exercise of those powers and duties of the city's official who was intrusted with them.

Subsequently, the Legislature of Tennessee passed during the same year, 1895, an act providing for the assessment and collection of all taxes throughout the state. Acts 1895, p. 203, c. 120. It was thereby enacted that assessments for state, county, and municipal purposes should be made by the county assessor, and it was expressly declared by section 57 thereof that 'no municipality or taxing district shall assess any property for taxation, but shall copy the assessment made by the assessor herein provided for, so far as the same may be necessary for such municipality or taxing district. ' By the scheme of this law the county assessor's assessment was made subject to review by the county board of assessors, and its decision should be final unless it should be altered by the state board, and, further on, by the State Board of Equalization, whose decision 'shall be final.' It is contended for the plaintiff that this repeal and substitution of the method of assessment and collection of taxes in the city of Cleveland impairs the obligation of his contract, and is obnoxious to the provision of the Constitution of the United States in that regard. Counsel for the city state the question as one of a twofold character, as follows:

'It is manifest that, to sustain the order of the Circuit Court now under consideration, these two propositions must be established: First, that the change in the law whereby the power of assessing property for taxation was taken from the municipal authorities and vested in the county assessor in some way impaired the efficiency of the remedy which was available for the enforcement of the contract at the time it was made; and, second, that because the change impairs the efficiency of the remedy, therefore the court can disregard it, and can still require the city officials to exercise the power they had when the contract was made, notwithstanding the law has since withdrawn it.'

This is a misconception. There is but a single question, and that is stated in counsel's first proposition, for, if the later statute impairs the plaintiff's remedy, it is therefore void, and did not repeal the statute which committed this duty to the city recorder. That duty continued to be attached to his office as if the repealing statute had never been passed.

Under the former law, the plaintiff's remedy, if his judgment was not paid, was by a direct and simple order against the city's own officer.

It was in no wise hampered or impeded by any external relations of the city with the county or state, or by any relation of its officer with those of the county or state, of subordination or otherwise. But what is the plaintiff's remedy under the later act? Counsel for the city answer this question first by suggesting that the county assessor is required by law to assess property at its true cash value, and the plaintiff may repose upon the presumption that he will comply with the law; and, further, that, if the assessor does not do this, the plaintiff may bring the matter before the county board, and if he does not get relief there, he may carry his grievance to the State Board of Equalization, a board whose decision is made final; or, second, he might sue the county assessor on his official bond, and he might prosecute him in the criminal courts. This suggestion that the...