Tamble v. Pullman Co.

• Decision Date: 30 June 1913
• Docket Number: 2,338.
• Citation: 207 F. 30
• Parties: TAMBLE v. PULLMAN CO.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 30

TAMBLE v. PULLMAN CO.

No. 2,338.

United States Court of Appeals, Sixth Circuit.

June 30, 1913

3. Through Cars. These cars passed through Nashville in a regular run from some point without the state to another point beyond the state. In these runs, a given car, or the one substituted for it, would be in Nashville at regular periods, sometimes every day, sometimes at longer intervals. The delay of each car at Nashville ordinarily varied from a few minutes to a few hours.

As to all these classes, the cars were, on January 10th, in Davidson county, only in the course of passing therethrough or else had been disconnected from some railroad train entering Nashville, and were held for the purpose of being attached to some train going out of Davidson county as soon as needed therefor. The number of cars assessed, as located in Davidson county on January 10th, was the average number in the same manner present therein each day in the year. The Company had no control over the movements of cars in service but the railroads routed and diverted such cars at their discretion.

C. T Cates, Jr., of Knoxville, Tenn., Theo. J. McMorrough, of Nashville, Tenn., Thomas B. Lytle, of Murfreesboro, Tenn., and Barthell, Howell & O'Connor, of Nashville, Tenn., for plaintiff in error.

W. L. Granbery, of Nashville, Tenn. (Gustavus S. Fernald, of Chicago, Ill., of counsel), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge (after stating the facts as above).

When the suit was commenced, the defendants were the collecting officer, Tamble, as trustee of Davidson county, and also Davidson county itself, and J. B. Jetton, one of the state 'revenue agents.' The declaration alleged that the plaintiff, under duress and protest, had paid to the county trustee the full sum of all county and state taxes, interest, and penalties, for the five years in question. The right to recover was based upon the claims that neither the county trustee nor the state board had any jurisdiction to assess the property in question, that such property never had any taxable situs within the state of Tennessee, and that the valuation adopted by the state board was arbitrary and unfair, and not upon the same basis as the valuations of other property--whereby, if the action taken was allowed to stand, plaintiff would lose its property without due process of law and would be deprived of the equal protection of the laws. The Company also insisted that the property assessed consisted solely of instruments of interstate transportation, and that the action of the state authorities was an unlawful interference with interstate commerce. It was not alleged that any part of the sum demanded had been by the county trustee paid over to Davidson county, but it was charged that the trustee had immediately paid over to the revenue agent his statutory percentage of the sum collected. Defendant Tamble demurred, because, among other reasons, the statutory right to pay under protest and sue to recover (section 1061, Shan. Code) attached only to state taxes, and demands for state and county taxes could not be jointed in such a suit. The court held that the action could be maintained as a common-law action for the entire sum against the man who had unlawfully collected the entire sum, and also held that the actions, if any, ultimately resulting against the county and the revenue agent, could not be joined with this action. Thereupon the suit was dismissed against Davidson county and the revenue agent, and proceeded against Tamble, county trustee, as sole defendant. He died, and his death was suggested on the record, as well as the fact that Crouch was his successor in office. Plaintiff obtained leave 'to withdraw its suit in so far as the same relates to the taxes collected on behalf of Davidson county, leaving the suit to stand alone to recover the taxes, interest, penalty, and costs accruing and paid on account of the taxes claimed on behalf of the state of Tennessee'; and the suit was revived against Crouch. The judgment rendered was in the peculiar form authorized only by the Code, directing a refund from the state treasury.

Defendant urges that by the action of the court upon the demurrer the character of the suit was fixed as one at law against Tamble for his personal tort, that this action abated by Tamble's death, and that it was error to revive the same and give judgment against Crouch. This was its original character, and it may be conceded that abatement, by Tamble's death, would have been a necessary incident; but we think the nature of the suit was modified, and properly so, by the proceedings taken. The declaration made a case for recovery of the state taxes, under section 1061 of Shannon's Code; it also stated a common-law right of action which covered and included this statutory right and more besides. When, later, plaintiff abandoned the remainder of the cause of action and let it stand for the state taxes alone, plaintiff was not stating a new or additional cause of action, but only dropping out and abandoning part of its demand. There was, in the remainder of the claim, nothing inconsistent with the statutory action; and we are satisfied that it was not erroneous to permit the character of the action to be thus modified, and to treat it from that time on as a suit under the statute, and to shape the judgment accordingly.

We are satisfied also that there was no Tennessee statute in existence contemplating or providing for any ad valorem assessment of these cars, and hence it follows that the assessment was without the authority of law and was wholly void. This same question arose in the court below upon the demurrer; and we adopt, upon this subject, Judge Sanford's opinion, printed in the margin.

It is further urged that the finding of the state board of equalization is a judgment, and that, whether it is right or wrong, the Pullman Company is bound thereby. It is said that the proceeding to 'back assess' is not the ordinary assessment and levy of a tax, but it is an inquiry, by a competent tribunal, into the question whether property has escaped taxation and into the value of such property; that this tribunal has power to render judgment for the full amount it finds due; that means are provided for a review of such judgment by an appellate tribunal; but that, like other judgments, it cannot be collaterally attacked. Since the existence of power to levy this tax depended upon whether the property assessed had a taxable situs in Davidson county-- at least in part a question of fact-- and since a court, giving judgment between parties who are before it, has power to determine its own right to proceed under the facts upon which that right depends, we naturally come to the inquiry whether the state board of equalization is, in this sense, a court. We do not intend to decide that this finding of taxable situs, if made by a court of general jurisdiction, would be conclusive of its own power, but to ascertain first whether that question is here involved.

Chapter 602 of the Acts of 1907, being the Tennessee general assessment law, provides that the state board of equalization shall be composed of the Secretary of State, the Treasurer, and the Comptroller, and that among other powers granted and duties imposed it shall (section 37, par. 11) hear appeals from county trustees upon matters of back assessment. By section 37, par. 10:

'The action of the state board of equalizers shall be final and conclusive as to all matters passed upon by the board. Taxes shall be collected upon the valuation so fixed and found by said board.'

The Supreme Court of Tennessee has somewhat casually (Briscoe v. McMillan, 117 Tenn. 131, 100 S.W. 111) referred to the state board as 'the state's highest tax court, and a quasi court of record,' and said that the question then under consideration had, by its decision, become res judicata. The finding of the state board is by it, and in the subsequent proceedings for enforcement, denominated a 'judgment.' A writ of certiorari will lie from the state Supreme Court to the board. These things give color to the claim that its findings upon a disputed question of fact or law, where the parties have been before it and their contentions have been fully heard, may be conclusive, even though involving the existence of conditions upon which its power to proceed is dependent.

On the other hand, we find no state decision indicating that any part of the judicial power of the state, as judicial power is properly defined, was vested in this board. The process which is issued pursuant to its finding is not execution, but the ordinary distress warrant regularly issued by an administrative officer. Certiorari is the ordinary common-law writ by which a court reviews the action of an administrative board or executive officer, where such review can be had at all; and so the existence of this remedy does not imply the judicial character of the board. The right to attack the board's finding collaterally by an equity suit to enjoin is recognized in Tennessee to an extent seemingly beyond what would be permitted as against the action of a court. Briscoe v. McMillan, supra. Upon the whole, we think the state board is to be considered as an administrative body rather than as a part of the judicial system of the state, and that from this standpoint must be considered the effect of its finding that the facts existed which gave it the power and the right to make the assessment in controversy. The findings of such a board may be, for many purposes and to a large extent, conclusive, and yet be far from constituting that judicial decision upon which alone the claim of res judicata may be based. Considered from this...