United States ex rel. Pierce v. Cargill

• Decision Date: 04 March 1920
• Docket Number: 5451.
• Citation: 263 F. 856
• Parties: UNITED STATES ex rel. PIERCE v. CARGILL, County Assessor, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

263 F. 856

UNITED STATES ex rel. PIERCE v. CARGILL, County Assessor, et al.

No. 5451.

United States Court of Appeals, Eighth Circuit.

March 4, 1920

Thomas S. Buzbee and G. B. Rose, both of Little Rock, Ark. (George B. Pugh, H. T. Harrison, W. E. Hemingway, D. H. Cantrell, and J. F. Loughborough, all of Little Rock, Ark., on the brief) for plaintiff in error.

U. S Bratton, of Little Rock, Ark., and J. F. Koone, of Clinton Ark. (Guy G. Bratton, of Little Rock, Ark., on the brief) for defendants in error.

Before SANBORN and CARLAND, Circuit Judges, and VAN VALKENBURGH, District Judge.

CARLAND Circuit Judge.

This is a proceeding wherein the relator prayed for a writ of mandamus commanding the assessor of Van Buren county, Ark., and the Arkansas tax commission to assess and value, for the year 1919 and subsequent years, until relator's judgment should be fully paid, all the taxable property in said county subject to taxation at its true value in money. The case was heard by the court below upon the pleadings and certain stipulated facts. The relief prayed for was denied, and relator has removed the case here, assigning error as to the ruling of the court in refusing to declare the law to be as announced in the decision of this court in U.S. ex rel. Fall City Construction Co. v. Jimmerson, 222 F. 489, 138 C.C.A. 85, L.R.A. 1918B, 1102, certiorari denied October 25, 1915, 239 U.S. 641, 36 Sup.Ct. 163, 60 L.Ed. 482. The petition of relator alleges the following facts:

'That the county of Van Buren, in the state of Arkansas, prior to the 16th day of August, 1917, for a valuable consideration, duly issued its certain warrants payable out of its general revenue fund, and $14,320.25 of these warrants were acquired by the relator for a like valuable consideration.

'That on said 16th day of August, 1917, relator brought suit at law upon said warrants in this honorable court, and such proceedings were had in said cause that on the 17th day of October, 1917, judgment was rendered in favor of the relator for the total amount of said warrants, to wit, $14,320.25, with costs, which judgment is still in full force, unpaid, and unreversed.

'That in addition to the warrants issued to relator, as above set out, other warrants have been issued by said Van Buren county, largely in excess of its revenue, and all county taxes are payable in such warrants.

'That the respondent H. W. Cargill is the duly elected, qualified, and acting assessor of Van Buren county.

'The respondents Reuben G. Dye, A. C. Martineau, and Monroe Smith constitute the Arkansas tax commission.

'It is the duty of said assessor to assess or value, for purposes of taxation, all the real and personal property subject to taxation in said county, except certain property which is assessed or valued for taxation by the Arkansas tax commission, at its true value in money.

'It is the duty of said Arkansas tax commission to assess all other property in said county at its true value in money, and it is the further duty of said Arkansas tax commission to direct the assessor in the assessment of property in said county, and to require said assessor to assess all property in said county at its true value in money.

'That the said assessor has failed, refused, and neglected to discharge his duty, in that he has failed and neglected to assess and value for taxation, and place upon the assessment books of said county, a great deal of property, principally personal property, subject to taxation in said county and to assessment by him, and his assistants, and has assessed or valued almost all of the taxable property in said county, actually assessed and placed upon the assessment books by him, at less than its true value, and unless otherwise commanded by order of this court will assess all of said property for the year 1919 at less than its true value.

'Said Arkansas tax commission has failed and refused to discharge its duty, in that it has failed and refused to direct the assessor of said county to assess said property at its true value, or to increase the assessment of property undervalued by said assessor to the true value of said property. On the contrary, it has directed said assessor to assess the said property at not more than 50 per cent. of its true value, and unless otherwise commanded by order of this court will not assess, or cause the assessor to assess, said property at more than 50 per cent. of its true value for the year 1919.

'The undervaluation of the taxable property of said county by the said assessor and the Arkansas tax commission, as hereinbefore alleged, is a fraud upon relator as a creditor of said county, and is a refusal of said assessor and said Arkansas tax commission to discharge their duties according to law.

'If the taxable property of said county were assessed at its true value, as required by law, the revenues of said county, even at the low rate of taxation allowed by the laws of the state of Arkansas, would very soon be sufficient to discharge the said judgment and the other indebtedness of said county, in addition to paying the ordinary and usual expenses of said county.

'If the taxable property of said county is not assessed at its true value as required by law, relator will be unable to collect its said judgment against said county.

'Unless required by authority of this court to discharge their duties according to law, said assessor and Arkansas tax commission will continue to undervalue the taxable property in said county subject to taxation by said assessor, and thus defeat the relator in the collection of his judgment.

'The total value of the taxable property in said county, as assessed for the year 1918, is approximately $2,200,000 and will be approximately the same amount for the year 1919, if assessed on the present basis; whereas, if the same were assessed at its true value in money, as required by law, the total valuation would be not less than $4,400,000.

'Said county has no means to pay the within judgment, except by the application thereto of a portion of the proceeds of its general revenue tax of 5 mills which it is authorized to levy.

'The property of said county has heretofore been assessed at less than half of its true value in money, but, if the assessing officers are required to return said property at its true value in money, it would be at least double the previous income of said county.

'Said 5 mills tax has heretofore been sufficient to pay all the running expenses of said county, even upon the inadequate assessment heretofore made, and when said property has been assessed, as required by law, at its full value in money, 2 1/2 mills will produce as much revenue as said county has enjoyed in the past, and all the revenue required for its legitimate expenses.'

The response of respondents contained a denial of certain legal conclusions and alleged as follows:

'Defendants, further responding, say that the assessment of the property of said county by its assessor and his associates at 50 per cent. of its true value, under the direction of the Arkansas tax commission, is and will be in accordance with assessments of other property in all other counties in said state; that the Arkansas tax commission has made an order fixing 50 per cent. of its true value as the proportionate valuation to be assessed on taxable property throughout the state for the purposes of taxation for the year 1919.'

Certain facts were stipulated as follows:

'It is agreed between the parties hereto as follows:

'That the warrants on which the judgment, referred to in the petition, was rendered, were issued by the county of Van Buren, and purchased by the plaintiff Frank Pierce, subsequent to the decision of the United States Circuit Court of Appeals for the Eighth Circuit in the case of United States ex rel. Fall City Construction Co. v. Jimmerson, which was rendered April 14, 1915, and is reported in 222 F. 489, 138 C.C.A. 85, L.R.A. 1918B, 1102, and prior to the decision or the Supreme Court of Arkansas in case of State ex rel. Nelson v. Meek, which was rendered February 5, 1917, reported in 127 Ark. 349, 192 S.W. 202, L.RA. 1918F, 642.

'That at the time said warrants were issued by the county and purchased by the plaintiff, Frank Pierce, the decision of the United States Circuit Court of Appeals for the Eighth Circuit in the case of United States ex rel. v. Jimmerson was in full force and effect.

'That the property of Van Buren County, and of other counties in the state, is now assessed, under direction of the state tax commission, at 50 per cent. of its value, and that the revenue derived by said assessment in Van Buren County is not sufficient to enable the county to pay the judgment in favor of plaintiff.'

The Jimmerson Case was decided April 14, 1915. On February 5 1917, the Supreme Court of Arkansas in the case of State ex rel. Nelson v. Meek, 127 Ark. 349, 192 S.W. 202, L.R.A. 1918F, 642, decided that the construction placed by this court upon the Constitution and statutes of Arkansas relative to the assessment of property for taxation in the Jimmerson Case was wrong. The warrants on which judgment was rendered in favor of the relator were issued and purchased subsequent to the decision in the Jimmerson Case, and before the decision in the Meek Case. The decision in the Jimmerson Case was based upon a full citation and...