Henrietta Mills Co. v. Rutherford County

• Decision Date: 13 June 1928
• Citation: 26 F.2d 799
• Court: U.S. District Court — Western District of North Carolina
• Parties: HENRIETTA MILLS CO. v. RUTHERFORD COUNTY et al.

26 F.2d 799 (1928)

HENRIETTA MILLS CO. v. RUTHERFORD COUNTY et al.

District Court, W. D. North Carolina.

June 13, 1928.

Willis Smith and W. T. Joyner, both of Raleigh, N. C., for complainant.

Clyde R. Hoey and Quinn, Hamrick & Harris, all of Shelby, N. C., for defendants.

Walter D. Siler, Asst. Atty. Gen. of North Carolina, amicus curiæ.

Before PARKER, Circuit Judge, and WEBB and HAYES, District Judges.

PARKER, Circuit Judge.

This suit was instituted by the Henrietta Mills Company, a North Carolina corporation, against Rutherford county, North Carolina, and W. C. Hardin, the sheriff of that county, to enjoin the collection of county taxes levied upon what was alleged to be an excessive and unfair valuation of its property, made in violation of its rights under the Fourteenth Amendment to the Constitution. Complainant asked that a court of three judges be convened, pursuant to section 266 of the Judicial Code (28 USCA § 380), to pass upon its application for an interlocutory injunction. Such a court has been convened, and the first question presented is whether the case falls within the provisions of that section. If it does not, the statutory court has no jurisdiction, and the two judges called in must retire from the case and allow the resident judge alone to determine the questions involved; for, if the case is not one within the section, he alone has jurisdiction. Connor v. Board of Commissioners of Logan County, Ohio (D. C.) 12 F.(2d) 789; Connecting Gas Co. v. Imes (D. C.) 11 F.(2d) 191.

The pertinent portion of section 266 of the Judicial Code, as amended, is as follows:

"No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state, shall be issued or granted by any justice of the Supreme Court, or by any District Court of the United States, or by any judge thereof, or by any Circuit Judge acting as District Judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a Circuit or District Judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court or a Circuit Judge, and the other two may be either Circuit or District Judges, and unless a majority of said three judges shall concur in granting such application." (Italics ours.)

To bring a case within the provisions of the foregoing section, four things must appear: (1) That an interlocutory injunction is sought; (2) that such injunction will result in suspending or restraining the enforcement, operation, or execution of a statute of a state, or the order of an administrative board or commission acting under or pursuant to statute; (3) that the ground upon which the interlocutory injunction is asked is the unconstitutionality of the statute or order; and (4) that it is sought to restrain by the interlocutory injunction the action of an officer of the state. In other words, to give jurisdiction to the statutory court of three judges, it must appear, not only that an interlocutory injunction is sought on the ground of the unconstitutionality of a statute or order of an administrative board, acting under or pursuant to statute, but also that its effect will be to suspend or restrain the enforcement, operation, or execution of the statute or order, by restraining the action of an officer of the state in its execution.

It is true, as contended by complainant, that allegation as to the unconstitutionality of an order of an administrative board, where the other elements of jurisdiction are present, will serve to confer jurisdiction in the same way as allegation as to the unconstitutionality of a statute. Oklahoma Gas Co. v. Russell, 261 U. S. 290, 43 S. Ct. 353, 67 L. Ed. 659; Southern R. Co. v. Query (D. C.) 21 F.(2d) 333, 336. But the other elements of jurisdiction must be present also, as that it is sought to restrain the action of an officer of the state; and if they are not present the statutory court of three judges has no jurisdiction....