Skagit County v. Northern Pac. Ry. Co.

• Decision Date: 07 November 1932
• Docket Number: No. 6870,6871.,6870
• Citation: 61 F.2d 638
• Parties: SKAGIT COUNTY et al. v. NORTHERN PAC. RY. CO. KITTITAS COUNTY v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F.2d 638 (1932)

SKAGIT COUNTY et al. v. NORTHERN PAC. RY. CO.

KITTITAS COUNTY v. SAME.

Nos. 6870, 6871.

Circuit Court of Appeals, Ninth Circuit.

November 7, 1932.

John H. Dunbar, Atty. Gen., John A. Homer and John W. Brisky, Asst. Attys. Gen., for appellant Skagit County.

R. G. Sharpe, of Seattle, Wash., and Ole Sandvig, of Yakima, Wash., for appellants Whitney and others.

R. G. Sharpe, of Seattle, Wash., and Spencer D. Short, of Ellensburg, Wash., for appellant Kittitas County.

D. F. Lyons, of St. Paul, Minn., and L. B. Da Ponte and T. H. Maguire, both of Seattle, Wash., for appellee.

Robert M. Burgunder, Pros. Atty., and Harry A. Rhodes (of Colvin & Rhodes), both of Seattle, Wash., for amicus curiæ King County.

F. M. Dudley, of Seattle, Wash., for amicus curiæ Chicago, M., St. P. & P. R. Co.

Before WILBUR and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

The counties of Skagit and Kittitas, of the state of Washington, and the county treasurer, sheriff, and prosecuting attorney of Skagit county, appeal from a temporary injunction made and entered, enjoining twenty-three counties and their respective county officers, including appellants, from collecting certain taxes levied upon the personal property of the appellee Northern Pacific Railway Company for the years 1927, 1928, and 1929. The appellee, hereinafter referred to as the Railway Company, instituted these actions to enjoin the collection of that portion of the tax levied upon their operating railroad property for the years 1927, 1928, and 1929, by the taxing authorities of the various counties defendant through whose territory the Railway Company operated its railroad, upon the ground that the assessment of such proportion was so excessive as compared with the assessment of all other property in the counties levying the tax as to be actually or constructively fraudulent and void. The Railway Company asked for a permanent injunction against the collection of the tax and also prayed for a decree adjudging "the unpaid balance of the tax be ordered cancelled and stricken from the rolls as a cloud upon the plaintiff's title to its property." The Railway Company paid the portion of the tax it admitted was justly due upon a valuation commensurate with that levied upon other property in the respective counties as required by a statute of the state of Washington as a condition of maintaining such an action in equity. Remington's Compiled Statutes of Washington § 956.

It appears that this action is one of a number by this and other railway companies, all based upon the same contention, that their property has been systematically and fraudulently overvalued for a number of successive years from 1925 to 1929, inclusive. Some of these actions were pending in the trial court, undecided, at the time this action was brought. With reference thereto the bill of exceptions contains the following statement:

"In entering said order for interlocutory injunction the court took judicial notice of the records and files in Cause No. E-4300, `Northern Pacific Railway Company v. Adams County, et al.,' pending in this court. Said cause involves taxes assessed for the years 1925 and 1926 on plaintiff's operating property and the parties thereto and the issues of law are the same as in this cause. It is the same cause referred to in plaintiff's motion for interlocutory injunction herein. Said Cause No. E-4300 was referred by this court to Honorable Ralph Kauffman, Master in Chancery, to take testimony, make conclusions of law and fact and recommendations for a decree. Hearing in said cause began on June 6, 1927, and lasted until September, 1928, and briefs and arguments were not completed until October, 1929. On the 29th day of March, 1930, said Master filed his report in said cause, with conclusions of law and fact and recommendations for a decree.

"Plaintiff and defendants filed exceptions to the Master's report and said exceptions were argued in this court on the 22nd day of June, 1931, and succeeding days. Several thousands of pages of briefs have been filed. The court has had and now has said Cause No. E-4300 under advisement and consideration for a final decree.

"The court knows from the records and files in this cause and from statements of counsel for the respective parties, in open court, that neither party has taken steps to bring this cause to trial, pending the final decision in said Cause No. E-4300, for the reason that decision therein will settle many of the questions involved in this cause and thereby further expensive litigation may be avoided and, in any event, the issues in this cause will be simplified and large expense saved to the respective parties. It has been and is the opinion of this court, expressed in open court, that this cause should not be tried until after final decision in said Cause No. E-4300. While this cause was so pending, under the circumstances and conditions stated, defendants threatened to issue process of distraint for the collection of said personal property taxes. Said taxes are, in the court's opinion, adequately secured by a lien on all of plaintiff's operating property, real and personal, and by the injunction bond filed by plaintiff herein. No injury or loss will, in the court's opinion, be sustained by defendants because of the granting of said interlocutory injunction. But, in the court's opinion, if said injunction be refused, plaintiff will suffer a great loss by the seizure and sale of its property, for which it has no adequate remedy at law.

"At the time of entering said interlocutory injunction the court stated in open court, that on the hearing of said order to show cause and, in granting said interlocutory injunction, the court did not pass upon the merits of the matters in controversy herein. That said injunction was granted in the exercise of the court's discretion and upon consideration of the relative loss and damage to the parties from refusing, as compared with granting, the same, and in view of all of the circumstances and conditions appearing at said time."

In case No. E-4300, above referred to, the trial court has since held the assessment for the year 1925 to be void, and was no doubt tentatively of that opinion at the time he granted the temporary injunction in the case at bar.

The appellants present the merits of the case upon the contention that the controlling facts are either admitted in the pleadings or established by uncontroverted statements in the affidavits presented to the trial court on the hearing. It is suggested that our decision of the various points presented on the merits would greatly facilitate the further progress of pending litigation. It is sufficient in that regard to say that the question of overvaluation is a relative one, and depends not only upon the valuation fixed by the taxing authorities upon the Railway Company's property, but also upon the relative undervaluation of other property. This undervaluation is affirmed by the Railway Company, on the one hand, and denied by the defendants, on the other. If any evidence were offered on this subject on the application for a temporary injunction, it is not contained in the bill of exceptions. If we could say, as appellants contend we should, that the valuation of the Railway Company's property was not so excessive as to justify a conclusion that the valuation was fraudulently made, we would still be confronted with the fact that this factor is only one element of the problem to be solved, namely, whether the tax imposed upon the Railway Company is relatively excessive. If other property is similarly overvalued no harm has been done the Railway Company. The question of the validity of the tax is not before us on the merits, and we cannot say that there has been an abuse of discretion in granting the order appealed from in view of the findings and statement of the trial judge, above quoted. See Alabama v. United States, 279 U. S. 229, 49 S. Ct. 266, 73 L. Ed. 675.

Appellants contend that this action will not lie because the Railway Company has a plain, speedy, and adequate remedy at law by paying the tax under protest and by an action to recover the money thus illegally exacted. That this rule is frequently applicable is shown by the following cases cited by the appellants: Southern R. Co. v. Query (D. C.) 21 F.(2d) 333, 337, 338; Union Pac. R. Co. v. Board of Com'rs of Weld County, 247 U. S. 282, 285, 38 S. Ct. 510, 62 L. Ed. 1110; Port Angeles Western R. Co. v. Clallam County (C. C. A.) 44 F.(2d) 28. It is claimed by the Railway Company, however, that this rule does not apply because of the number of actions involved in the recovery of the tax so paid, the uncertainty of the recovery of such tax due to the alleged insolvency of some of the districts to which the tax has been, or would be, apportioned, and particularly because of the fact that the assessment is made by the state tax commission. Chapter 130, p. 227, Laws Extra Session 1925, State of Washington. This commission later sits as a board of equalization to hear complaints against the assessment and to apportion the total assessment as finally fixed in the respective counties in the proportion in which the main line mileage therein bears to the total main line mileage of the railway in the state. A somewhat similar situation to that in the case at bar was considered by the Supreme Court in Wilson v. Illinois So. Ry. Co., 263 U. S. 574, 44 S. Ct. 203, 68 L. Ed. 456. An action was brought by the Railway Company to enjoin the collection of taxes for the years 1917, 1918, 1919, and 1920 upon the ground that the property was erroneously and fraudulently overvalued. As a basis for the exercise of equitable jurisdiction it was alleged that the Railway Company paid as tax such sums as could properly have been charged; that if the additional amounts demanded could be recovered at all after payment it would be only by multiplicity of suits against the taxing...