Hornbeak v. Hamm

• Decision Date: 10 April 1968
• Docket Number: Civ. A. No. 2608-N.
• Parties: Martha A. HORNBEAK, for herself and for all others similarly situated, Plaintiff, v. Phillip HAMM, Commissioner of Revenue for the State of Alabama, and his successors in office, Defendant.
• Court: U.S. District Court — Middle District of Alabama

283 F. Supp. 549

Martha A. HORNBEAK, for herself and for all others similarly situated, Plaintiff, v. Phillip HAMM, Commissioner of Revenue for the State of Alabama, and his successors in office, Defendant.

Civ. A. No. 2608-N.

United States District Court M. D. Alabama, N. D.

April 10, 1968.

Barry Hess, Matranga, Hess & Sullivan, Mobile, Ala., and George C. Longshore (Cooper, Mitch & Crawford), Birmingham, Ala., for plaintiff.

MacDonald Gallion, Atty. Gen. of Alabama, Montgomery, Ala., and Willard W. Livingston, as counsel, Dept. of Revenue and Asst. Atty. Gen. of Alabama, and Herbert I. Burson, as Asst. Counsel, Dept. of Revenue and Asst. Atty. Gen. of Alabama, Montgomery, Ala., for defendant.

Before GODBOLD, Circuit Judge, and JOHNSON and PITTMAN, District Judges.

GODBOLD, Circuit Judge:

The plaintiff, as the owner of real estate in Alabama and as a citizen and taxpayer, brings this suit in an effort to require uniform assessment of property throughout the State of Alabama for ad valorem tax purposes.

I

Uniformity of assessment is required by § 211 of the Alabama Constitution¹ and by the Alabama statutes.²

The plaintiff alleges a cause of action under 42 U.S.C.A. §§ 1983 and 1988,³ alleging the lack of uniformity of valuation and assessment of property deprives her and others similarly situated of property without due process of law and is a denial of equal protection of the laws, in violation of the 14th Amendment to the Constitution of the United States. But alleging a violation of constitutional rights is not itself sufficient to gain access to the Federal courts. Federal jurisdiction is claimed under 28 U.S.C.A. § 1343(3),⁴ the civil rights jurisdictional statute, which contains no required minimum amount in controversy in the suit. If the case is one within § 1343 the jurisdictional amount provisions of 28 U.S.C.A. §§ 1331 and 1332 (more than $10,000 in controversy) need not be complied with. If there is no jurisdiction under § 1343 "federal question" jurisdiction may be claimed under § 1331, but the required jurisdictional amount would have to be present; no such claim is presently before us. Thus the key issue before this court is whether § 1343, a jurisdictional statute, applies. The case comes before a three-judge district court under 28 U.S.C.A. § 2281, providing that "an * * * injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute * * * shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application thereof is heard and determined by a district court of three judges." The plaintiff attacks the constitutionality of Act No. 502, adopted by the Alabama Legislature at its 1967 regular session,⁵ and seeks 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 * * *."

We conclude that this case is not within § 1343, hence no basis for federal jurisdiction is shown to exist and the case must be dismissed.

II. Jurisdiction under § 1343

The plaintiff is met at the threshold by the recent decision of the United States Court of Appeals for the Fifth Circuit in Bussie v. Long, 383 F.2d 766 (5th Cir. 1967), affirming 254 F.Supp. 797 (E.D.La.1966). Bussie was a similar attack on non-uniform assessments in Louisiana, in which it was alleged that plaintiff was assessed at a higher percentage of value than owners of similar property, and plaintiff asked that the State Tax Commission be ordered to determine actual cost value of all property, to fix a uniform percentage of cash value for purposes of ad valorem taxation and to carry out its statutory duty of equalizing assessments. Basically these are the same allegations and the same type of relief involved in the case before us. Bussie held such a suit involved only a "property or monetary right" and not a "civil right" within the purview of § 1343.

The Bussie ruling was based upon Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). There was no opinion of the court as such in Hague. But the concurring opinion of Mr. Justice Stone considered the two jurisdictional statutes, §§ 1331 and 1343, and distinguished between them, saying: "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." Id. at 530, 59 S.Ct. at 971, 83 L.Ed. at 1444-1445. Mr. Justice Stone distinguished between Holt v. Indiana Mfg. Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374 (1900), a suit to restrain alleged unconstitutional taxation of patent rights, held not to involve a "civil right" under the predecessor to § 1343, and other cases⁶ in which "the gist of the cause of action was not damage or injury to property, but unconstitutional infringement of a right of personal liberty not susceptible of valuation in money."

The distinction between property rights and rights of personal liberty, as related to § 1343, was made by the Seventh Circuit in Gray v. Morgan, 371 F.2d 172 (7th Cir. 1966). "Thus far, at least, it is quite clear that the courts have generally treated this statute as applicable to personal liberty rather than a property or monetary claim." 371 F.2d at 175.⁷

The plaintiff does not seek refund of ad valorem taxes or relief from the valuation of her property or the assessment based thereon. She asks that the assessments of all others be brought up to the same level as that against her, 30% of fair and reasonable market value. Such action, done statewide and involving millions of dollars in taxes, is said to make her claim one inherently incapable of pecuniary valuation. But this does not convert the essential nature of the claim from property tax and fiscal to a right of personal liberty.

Sec. 1343, however may be thought of as a remedy in cases where the right asserted is incapable of pecuniary valuation. Detroit Edison Co. v. East China Township School Dist., 247 F. Supp. 296 (E.D.Mich.1965). Generally, jurisdiction under this Act cannot be invoked in a pure tax action. A mere allegation of discrimination is insufficient to invoke Civil Rights Act jurisdiction automatically. Where plaintiffs' remedies are of the sort classically associated with tax actions and the claims are of a property nature, a federal court should not accept jurisdiction solely on this basis. Cf. Olan Mills, Inc. of Tenn. v. Opelika, Alabama, 207 F.Supp. 332 (M.D.Ala.1962). Otherwise, the jurisdictional amount provisions of 28 U.S.C.A. §§ 1331 and 1332 could easily be circumvented by a mere allegation of denial of equal protection. This would be true even if the amount in controversy were readily ascertainable. Equal protection in tax actions may constitute a federal question but it does not necessarily involve a corresponding Civil Rights Act violation.

Alterman Transp. Lines, Inc. v. Public Serv. Comm'n of Tenn., 259 F.Supp. 486, 492 (M.D.Tenn.1966) (3-judge court), aff'd per curiam, 386 U.S. 262, 87 S.Ct. 1023, 18 L.Ed.2d 39 (1967).

In recent opinions, none involving taxation, the Fifth Circuit found § 1343 jurisdiction in cases involving property rights: Hornsby v. Allen, 5 Cir., 326 F.2d 605, rehearing denied, 330 F.2d 55 (5th Cir. 1964) (arbitrary denial of a city liquor license); Mansell v. Saunders, 372 F.2d 573 (5th Cir. 1967) (denial of garbage collection franchise, relying in part on Hornsby; McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964) (actions of Texas Land Commissioner affecting land title, relying in part on Hornsby). In Bussie the Fifth Circuit declined to apply Hornsby, Mansell and McGuire to a cause of action concerning tax assessments. The court pointed out that in Hornsby and Mansell the facts indicated that federal question jurisdiction under § 1331, including necessary jurisdictional amount, probably was present, and that in McGuire jurisdiction under both federal question and civil rights statutes had been found present.

Other cases adhere to the "property right"—"right of personal freedom" distinction. Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1963) (3-judge court), aff'd mem., 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963), was a suit by nonresidents to enjoin collection of the Missouri income tax. The court held there was no § 1343 jurisdiction, discussing at length Holt and Mr. Justice Stone's articulation of the rule in Hague. This is the case which Bussie referred to as evidencing the Supreme Court's adherence to the Hague and Holt views.

Other cases are: Ream v. Handley, 359 F.2d 728 (7th Cir. 1966), (slander of title to real estate by state officials);⁸ Gray v. Morgan, supra, (action to declare unconstitutional and to enjoin collection of state income taxes); Alterman Transp. Lines, Inc. v. Public Serv. Comm'n, supra, (alleged discriminatory assessments of property of public utilities); Booth v. General Dynamics Corp., 264 F.Supp. 465 (N.D.Ill.1967) (class action on behalf of taxpayers within a sanitary district to block transfer of land at a grossly inadequate price); Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967) (action against sheriff for deprivation of claimant's personal property in custody of sheriff); Fuller v. Volk, 351 F.2d 323 (3d Cir. 1965) (class action by taxpayers to enjoin allegedly unconstitutional use of public funds).⁹

Cases tending to ignore the "civil rights"—"property right" distinction are: Glicker v. Michigan Liquor Control Comm'n, 160 F.2d 96 (6th Cir. 1947) (revocation of a liquor license on grounds of...