Pacific Exp. Co. v. Seibert

• Decision Date: 22 October 1890
• Citation: 44 F. 310
• Parties: PACIFIC EXP. CO. v. SEIBERT, State Auditor, et al. HOEY v. SAME.
• Court: U.S. District Court — Western District of Missouri

44 F. 310

PACIFIC EXP. CO. v. SEIBERT, State Auditor, et al.

HOEY v. SAME.

United States Circuit Court, W.D. Missouri, Western Division.

October 22, 1890

Commerce 70

This case arises under the following act of the legislature of the state of Missouri 'An act to define express companies, and to prescribe the mode of taxing the same, and to fix the rate of taxation thereon. Be it enacted by the general assembly of the state of Missouri, as follows: Section 1. Any person persons, joint-stock association, territory, or country conveying to, from, or through this state, or any part thereof, money, packages, gold, silver, plate, articles goods, merchandise, or effects of any kind, by express, on contract with any railroad or steam-boat company, or the managers, lessees, agents, or receiver thereof, (not including railroad companies or steam-boats engaged in the ordinary transportation of merchandise and property in this state,) shall be deemed to be an express company. Sec. 2. Every such express company shall annually, between the 1st day of April and the 1st day of May, make and deliver to the state auditor a statement, verified by the oath of the officer or agent making such report, showing the entire receipts for business done within this state of each agent of such company doing business in this state for the year next preceding the 1st day of April, for and on account of such company, including its proportion of gross receipts for business done by such company in connection with other companies: provided, that the amount which any express company actually pays to the railroads or steam-boats within this state for the transportation of their freight within this state may be deducted from the gross receipts of such company, as above ascertained: and provided, further, that the said amount to be paid to the various railroad or steam-boat companies for transportation shall be itemized, showing the amount paid to each railroad or steam-boat company: and provided, further, that nothing herein contained shall release such express companies from the assessment and taxation of their tangible property in the manner that other tangible property is assessed and taxed. Such company making statement of such receipts shall include as such all sums earned or charged for the business done within this state for such preceding year, whether actually received or not. Such statement shall contain an abstract of the amount received in each county and the total amount received for all the counties. In case of the failure or refusal of such express company to make such statement before the 1st day of May it shall then be the duty of each local agent of such express company within this state annually, between the 1st day of May and the 1st day of June, to make out and forward to the state auditor a similar verified statement of the gross receipts of his agency for the year then next preceding the 1st day of April. When such statement is made, such express company shall, at the time of making the same, pay into the treasury of the state the sum of two dollars on each one hundred dollars of such receipts. And any such express company failing or refusing for more than thirty days after the 1st day of June in each year to render an accurate account of its receipts in the manner above provided, and to pay the required tax thereon, shall forfeit one hundred dollars for each additional day such statement and payment shall be delayed, to be recovered by an action in the name of the state of Missouri, on the relation of the state auditor, in any court of competent jurisdiction, and the attorney general shall conduct such prosecution; and such company, corporation, or association so failing or refusing shall be prohibited from carrying on said business in this state until such payment is made. Sec. 3. There being no law in this state by which such express companies are taxed, creates an emergency within the meaning of the constitution. Therefore this act shall take effect and be in force from and after its passage. Approved May 16, 1889.'

The bill alleges in substance that the plaintiff is a corporation organized under the laws of the state of Nebraska, and is conducting business as an express company in Missouri and many other states, 'conveying money, packages, gold, silver, plate, articles, goods, and merchandise to, from, and through the state of Missouri and various parts of said state, by express; ' that in the prosecution of said business it does not provide its own transportation, but carries all its express matter 'on contract with the Missouri Pacific Railroad Company and various other railroad companies;' that in the prosecution of its business it receives express freight in many states, and carries the same, for hire, to points in the state of Missouri, and receives such freights within the state of Missouri, and conveys the same to points within other states, and that it receives such express matter at points within the state of Missouri, and conveys the same to other points within said state; that there are 'other persons, copartnerships, associations, and corporations residing and doing business within the state of Missouri, who were engaged in conveying to, from, and through the said state, and various parts of the same, goods and property of the descriptions aforesaid, for hire, by freight and by express, but not on contract with any railroad or steam-boat company, or the managers, lessees, agents, or receiver thereof, within said state, such persons, copartnerships, associations, and corporations being either provided with their own transportation facilities, or procuring the same, by hire, from other persons, not a railroad or steam-boat company, or the manager, lessees, agent, or receiver thereof. ' The bill then refers to the act of the legislature hereinbefore set out, and alleges that it is not a valid law, because it lays a tax on interstate commerce, and discriminates in favor of all express companies that do not hire their transportation by 'contract with any railroad or steam-boat company' and against those who do, by imposing the tax on the latter only, thus denying to the plaintiff the equal protection of the laws, in violation of the constitution of the United States, and violating the rule of equality and uniformity of taxation required by the constitution of the state of Missouri. The bill prays that the act of the legislature may be decreed to be unconstitutional, and the defendants enjoined from enforcing said act, or attempting to collect any tax or penalty therein provided for. A temporary injunction was granted on filing the bill. The case is now before the court on demurrer to the bill.

The case of Hoey v. The Same Defendants, and similar in all respects, was submitted at the same time.

W. W. Morsman, for Pacific Express Co.

Edward S. Robert, for plaintiff Hoey.

John M. Wood, Atty. Gen., for defendants.

Before CALDWELL and PHILIPS, JJ.

CALDWELL J., (after stating the facts as above.)

Does the bill present a case of equitable jurisdiction? A very clear case must be made out before a federal court will enjoin the collection of a state tax. A case for the exercise of such jurisdiction is not made out by showing that the tax is illegal, irregular, or unjust. It must also appear that its collection will be attended with a multiplicity of suits, or the destruction of a franchise, or cast a cloud upon the title to real estate, or some other recognized head of equity jurisdiction must be shown. This being a personal tax, no cloud can be cast on the title to real estate. The supreme court of the United States, speaking by Mr. Justice MILLER, states the rule in these terms:

'We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes, but we may say that, in addition to illegality, hardship, or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction, and that mere errors or excess in valuation, or hardship or injustice of the law, either before or after the payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. ' State Railroad Tax Cases, 92 U.S. 614.

The case last cited, and the case of Dows v. Chicago, 11 Wall. 108, are leading cases on this subject. These cases have been cited, and their doctrine approved, applied, and illustrated in many other cases in that court, and they furnish rules of decision obligatory on all federal courts. It is needless to repeat here the reasoning in support of these rules. It is set forth with convincing power in the two cases cited and in many others. Hannewinkle v. Georgetown, 15 Wall. 548; Tennessee v. Sneed, 96 U.S. 69. The plaintiff contends that in addition to the alleged illegality of the tax there are, in this case, special grounds of equitable jurisdiction. It is said if the tax is not paid the plaintiff incurs a penalty of $100 per day, and is prohibited from doing business in the state during the period that it refuses to pay the tax, and that it is competent for the state to bring a separate suit for the penalty that accrues each day. All this is undoubtedly true. But the plaintiff has it in its power to avert all these penalties and disasters by paying the tax. The tax is a personal one, touching which Judge COOLEY says:

'When a tax as assessed is only a personal charge against the party taxed, or against his personal property, it is difficult, in most cases, to suggest any ground of equitable jurisdiction. Presumptively the remedy at law is adequate. If the tax is illegal, and the party makes payment, he is entitled to recover back the amount. ' Cooley, Tax'n,

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