Dundee Mortgage Trust Inv. Co. v. Charlton

• Decision Date: 10 October 1887
• Citation: 32 F. 192
• Parties: DUNDEE MORTGAGE TRUST INVEST CO. v. CHARLTON, Sheriff, etc.
• Court: U.S. District Court — District of Oregon

32 F. 192

DUNDEE MORTGAGE TRUST INVEST CO. v. CHARLTON, Sheriff, etc.

United States Circuit Court, D. Oregon.

October 10, 1887

Syllabus by the Court

Any person who has property listed on the assessment roll of a county for taxation is 'interested' in the proceedings of the county board of equalization, and may appear before it, and have redress against an unjust and unequal valuation of property on said roll, to his injury whether the same is caused by an over-valuation of his own property, or an under-valuation of that of others.

A person who is aggrieved by the wrongful action of an assessor, in the valuation of his own or others property for taxation, cannot maintain a suit in equity to enjoin the collection of any portion of the tax resulting from such action, unless he first seeks redress at the hands of the county board of equalization, as provided by statute. ^[1]

John W Whalley, for plaintiff.

W. R Bilyeu, for defendants.

DEADY J.

This suit is brought to restrain the county of Linn, and the defendant Charlton, its sheriff, from collecting the one-half of the taxes levied by the county in 1884 on the mortgages owned by the plaintiff on real property therein, amounting to $1,172.85. From the bill it appears that the plaintiff is a foreign corporation, formed under the laws of Great Britain and is the owner of promissory notes of the nominal value of $150,348.71, secured by mortgages on lands in Linn county; that the same were assessed by the assessor of said county, in the year 1884, for taxation as real property, under the act of October 26, 1882, at their nominal value, while all real property not under mortgage was only assessed at from one-third to one-half its value; that the tax levied on said assessment of the plaintiff has paid the one-half of said taxes, and that the county, through its proper officers, will, unless restrained by the decree of this court, proceed to make the balance of said tax by the sale of said notes and mortgages. The answers of the defendants admit the allegations of the bill, except as to the valuation of the real property not under mortgage, and aver that the same was valued for taxation at its true cash value, as required by law.

The evidence in the case is quite voluminous and contradictory. But considering the relation of the witnesses to the subject-matter, and the interest which most of them have in the question involved in the controversy, their several means of knowledge, the character of their testimony, and the difference in the value of lands as appears from the assessment roll, and that for which they were sold by the owners, as appears by the county record of conveyances, it is evident that the average valuation of lands in the county, not under mortgage, did not exceed 60 per centum of their 'true cash value,' and probably not over 50 per centum thereof; such 'value,' as defined by statute, (2 Laws Or. 1887, p. 1285,) being 'the amount such property would sell for at a voluntary sale, made in the ordinary course of business, and not what it would bring at public auction or forced sale. ' And this discrimination appears to have been the result of a deliberate purpose on the part of the county assessor, and made in accordance with the established practice of his office, and the prevailing power of public opinion.

On these facts, the plaintiff appears to be entitled to an injunction to restrain the collection of so much of this tax as results from this unlawful discrimination between its mortgages and other real property, in the valuation of the same for taxation. Dundee M.T.I. Co. v. Parrish, 11 Sawy. 92, 24 F. 197; Cummings v. Bank, 101 U.S. 153. Nor is it material that, at the filing of the bill, the plaintiff had only paid 50 per centum of this tax, instead of 60. All was paid that was then conceded or appeared to be due. That was sufficient to give the company a standing in court to litigate the question; and the fact that the court has, at the end of such litigation, found there was 60 per centum due, does not affect such standing, or the plaintiff's right to relief against the payment of the remaining 40 per centum. State Railway Cases, 92 U.S. 617; Bank v. Kimball, 103 U.S. 733.

But, on the hearing, the defendant made the objection that, conceding the error and injustice of the assessor, the remedy of the plaintiff in the first instance was an appeal to the county board of equalization to correct the same; and that, unless it appears that it...