Irwin v. Wright

• Decision Date: 20 March 1922
• Docket Number: No. 110,110
• Parties: IRWIN v. WRIGHT, County Treasurer, et al
• Court: U.S. Supreme Court

258 U.S. 219

42 S.Ct. 293

66 L.Ed. 573

IRWIN

v WRIGHT, County Treasurer, et al.

No. 110.

Submitted Jan. 24, 1922.

Decided March 20, 1922.

Messrs. Patrick H. Loughran, of Washington, D. C., Ernest W. Lewis, of Phoenix, Ariz. (M. J. Dougherty and G. A. Rodgers, both of Mesa. Ariz., and F. H. Swenson, of Phoenix, Ariz., on the brief), for appellant.

Messrs. James M. Sheridan, of Washington, D. C., and George D. Christy, R. E. L. Shepherd, and Jos. E. Noble, all of Phoenix, Ariz., for appellees.

Mr. Chief Justice TAFT delivered the opinion of the Court.

The appellant, Irwin, a citizen of California, filed his bill of complaint in the District Court against the treasurer, the assessor, the attorney, the sheriff, and the members of the board of supervisors of Maricopa county, Ariz., citizens of Arizona. He averred that he had an interest, as a homestead entryman, under the General Homestead Act of Congress of May 20, 1862 (12 Stat. 392), and the Reclamation Act of June 17, 1902 (Comp. St. §§ 4700-4708), in land included within the Salt River reclamation project, in Maricopa county; that he had not fulfilled many of the conditions by him to be performed before the title to the land would vest in him; that meantime it was the property of the United States, and not subject to taxation by a state; that he brought the suit in behalf of himself, and also in behalf of other reclamation homestead entrymen within the Salt River project in Maricopa county, and their assigns, similarly situated, desiring to avail themselves of the benefits of it; that the defendants had levied and assessed taxes against these homestead premises of plaintiff and the others in whose interest he sues, for several years, and had demanded payment of them, and threatened to collect them by suit and sale of such lands, and to assess them in the future; that such action was in contravention of article 4, section 3, of the federal Constitution, deprived him and his fellow entrymen of a privilege and immunity secured to them as citizens of the United States, deprived them of property without due process of law, and denied them the equal protection of the laws, all under the Fourteenth Amendment. He prayed for an injunction against the defendants and their successors in office, and each of them, as taxing authorities of Maricopa county, from further assessing said lands, collecting the taxes already assessed, or bringing suit to collect the taxes as delinquent, or to sell such interests. After answer and reply, the case was heard on an agreed statement of facts. The District Court dismissed the bill on its merits without opinion. This is a direct appeal from the District Court under section 238 of the Judicial Code, as amended January 28, 1915 (38 Stat. 804 [Comp. St. § 1215]), because the suit is one involving the construction or application of the Constitution of the United States.

On January 24th last the cause was submitted to the court by counsel for the appellant upon brief; counsel for appellees not appearing. Since that day a brief has been filed on behalf of appellees and considered by the court. When the case was called, counsel for appellant submitted a motion, suggesting that all the appellees, county officers of Maricopa county, Ariz., who at the time of bringing, hearing, and deciding the suit below were charged with the duty of assessing and collecting taxes therein, had, with exception of the sheriff and one of the three members of the board of supervisors, retired from office, and that their successors had been elected and qualified. These successors, the present officers of the county, the appellant asked to have substituted as appellees in this case. The motion was inadvertently granted. The order granting it must be in part vacated.

A suit to enjoin a public officer from enforcing a statute is personal, and, in the absence of statutory provision for continuing it against his successor, abates upon his death or retirement from office. Pullman v. Croom, 231 U. S. 571, 34 Sup. Ct. 182, 58 L. Ed. 375. In United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 18 Sup. Ct. 441, 42 L. Ed. 873, substitution was refused, although consent was given by the successor in office. This court said (169 U. S. 605, 18 Sup. Ct. 443, 42 L. Ed. 873):

'In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that Congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method.'

In response to the suggestion, Congress passed the Act of February 8, 1899 (30 Stat. 822, c. 121 [Comp. St. § 1594]) under which successors of United States officers who have been sued, may be substituted for them upon proper showing. In Caledonian Coal Co. v. Baker, 196 U. S. 432, 442, 25 Sup. Ct. 375, 49 L. Ed. 540, it was held that the statute authorized such procedure in the case of a territorial judge appointed under a law of the United States. But no authority exists for the substitution of successors of state officers in such cases. We have examined the statutes of Arizona and find none in them. The Arizona Civil Code contains the following:

'Par. 461. An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may continue in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.'

This does not permit the substitution of a successor for a public official sued personally.

In the Butterworth Case, supra, it was sought to justify substitution under an act (Laws Md. 1785, c. 80, § 1) which reads as follows:

'No action, brought or to be brought, in any court of this state shall abate by the death of either of the parties to such action, but upon the death of any defendant, in a case where the action by such death would have abated before this act, the action shall be continued, and the heir, devisee, executor or administrator of the defendant, as the case may require, or other person interested on the part of the defendant, may appear to such action.'

This court said (169 U. S. 605, 18 Sup. Ct. 443, 42 L. Ed. 873):

'* * * We are unable to perceive that this statute either in its terms or its spirit, is applicable to cases like the present one. Neither the heir, devisee, executor or administrator of a deceased official would have any legal interest in such a controversy. Nor, in a case of a resignation, could the successor be said to be 'a person interested on the part of the defendant."

What we have said applies to the motion for substitution so far as it relates to Sam F. Webb, sued as county treasurer, C. W. Cummins, sued as county assessor, and L. N. Laney, sued as county attorney, and the order granting the motion as to them is vacated, the motion is denied, and the cause is dismissed as against them, without prejudice, of course, to new suits against their successors.

It may not be improper to say that it would promote justice if Congress were to enlarge the scope of the Act of February 8, 1899, so as to permit the substitution of successors for state officers suing or sued in the federal courts, who cease to be officers by retirement or death, upon a sufficient showing in proper cases. Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure.

J. G. Montgomery, county sheriff, still remains as appellee in the case but as his taxing duties are only connected with the service of process in tax suits, it is doubtful whether, were he the only party here, an injunction against him would give the relief sought. It is not necessary to decide this, however, as will be seen from what follows.

So far as the order already entered substitutes for C. W. Peterson and W. K. Bowen sued as county supervisors, C. S. Steward and Guy F. Vernon, who have been elected to be their successors, as appellees, it will stand, for the principle to be applied in their case is different. The rule requiring abatement of such suits against officials on their retirement, and forbidding substitution of their successors, does not apply when they constitute a board, having a continuing existence. Marshall v. Dye, 231 U. S. 250, 34 Sup. Ct. 92, 58 L. Ed. 206; Richardson v. McChesney, 218 U. S. 487, 492, 31 Sup. Ct. 43, 54 L. Ed. 1121; Murphy v. Utter, 186 U. S. 95, 22 Sup. Ct. 776, 46 L. Ed. 1070. An examination of the statutes of Arizona as to the composition and duties of this board leaves no doubt that it is a continuing one. A county in Arizona is a body politic and corporate. Paragraph 2388 of the Arizona Code of 1913 provides that 'its powers can be exercised only by the board of supervisors or by lawful agents * * * acting under their authority and authority of law.' The board has three members and is vested with very wide and varied powers, acting as a board. Code, tit. 10, c. 4. Its members exercise official duties only as members of the board, and a quorum of two may act. Code, par. 2408. Every two years, either one or two members are elected, but the retiring members hold until their successors are elected and qualified. Code, pars. 2399, 2400. The motion should be granted so far as it asks the substitution in case of the two...