United States ex rel. Fall City Const. Co. v. Jimmerson

• Decision Date: 14 April 1915
• Docket Number: 4270.
• Citation: 222 F. 489
• Parties: UNITED STATES ex rel. FALL CITY CONST. CO. v. JIMMERSON, County Assessor, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

222 F. 489

UNITED STATES ex rel. FALL CITY CONST. CO. v. JIMMERSON, County Assessor, et al.

No. 4270.

United States Court of Appeals, Eighth Circuit.

April 14, 1915

F. Wm Kraft, of Chicago, Ill. (G. W. L. Smith, of Brewton, Ala., on the brief), for plaintiff in error.

Thomas & Lee, of Clarendon, Ark., and C. F. Greenlee, of Brinkley Ark., for defendants in error.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

CARLAND Circuit Judge.

The relator filed its petition for a writ of mandamus in the court below, and an alternative writ was thereupon issued. The defendants in error filed a demurrer to the petition for the writ, which was overruled. Defendants in error then amended their response, and the relator demurred thereto, and its demurrer was overruled, whereupon relator elected to stand upon the demurrer, and judgment was thereupon entered dismissing the petition for the writ. The petition alleged the following facts:

'That on or about the 17th of October, 1911, said relator entered into a contract with Monroe county, in the state of Arkansas, and the county curt of said county, for the construction for said county of a county courthouse in the city of Clarendon, Arkansas, the county seat of said county, for a consideration of $118,000, a copy of which contract is hereto attached, marked Exhibit 'A,' and made a part of this petition.

'That said contract provided that said county courthouse should be constructed in accordance with certain plans and specifications mentioned and referred to in said contract, and that the consideration or contract price should be evidenced by county scrip to be issued to relator to the amount of $118,000, to be redeemed in lawful money of the United States in annual installments as follows:

July 15, 1912 . . . $11,500.00

July 15, 1913 . . . 11,270.00

July 15, 1914 . . . 11,380.00

July 15, 1915 . . . 11,460.00

July 15, 1916 . . . 11,510.00

July 15, 1917 . . . 11,530.00

July 15, 1918 . . . 11,520.00

July 15, 1919 . . . 11,480.00

July 15, 1920 . . . 11,410.00

July 15, 1921 . . . 11,810.00

July 15, 1922 . . . 2,650.00

One warrant on demand . . . 480.00 'That said county courthouse was constructed and completed by relator and accepted by said county, and all of said county scrip was issued and delivered to relator in accordance with the terms of said contract.

'That said county failed and refused to redeem the $11,500 of said county scrip which became due on July 15, 1912, and thereupon suit was instituted in this court by relator against said Monroe county on $3,920 of said scrip which became due July 15, 1912, including said warrant for $480 on demand, and on March 12, 1913, judgment was rendered by this court in favor of relator against said Monroe county for said sum of $3,980, which judgment remains wholly unpaid, and said Monroe county refuses to pay the same or any part thereof, after demand being made for the payment thereof.

'That besides the county scrip issued to relator as above set out, other scrip has been issued by said Monroe county largely in excess of its revenues, and all county taxes are paid in such scrip.

'That on account of the issuance of such other scrip by said county in excess of its revenues and the payment of county taxes in county scrip, it would be ineffectual to attempt to enforce payment of said judgment by mandamus to the county levying court of said county to require it to levy a special tax on the taxable property of said county for the purpose of paying said judgment.

'That the defendant W. F. Jimmerson is the duly elected, qualified, and acting assessor of said Monroe county, and the defendants R. B. Hall, H. A. Baggott, and D. R. Meadors are the members of the board of equalization of said county and constitute said board.

'That 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 state board of railroad commissioners or the state tax commission, at its true value on money.

'That it is the duty of said board of equalization to equalize the assessments made by the assessor, by increasing the assessments of any and all property that may have been assessed or valued by said assessor at less than its true value, and by decreasing the assessments of any and all property that may have been assessed or valued by said assessor at more than its true value.

'The said relator alleges 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 for the year 1912 a great deal of property, principally personal property, subject to taxation in said county and to assessment by him, and has assessed or valued almost all the taxable property in said county actually assessed and placed upon the assessment books by him for said year at less than its true value.

'That said board of equalization has failed and refused to discharge its duty, in that it has failed and refused to increase the assessments of property undervalued by said assessor as above stated to the true value of said property.

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

'That 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 to relator, in addition to paying the ordinary and usual expenses of said county.

'That, 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 and the other indebtedness of said county to relator.

'That, unless required by authority of this court to discharge their duties according to law, said assessor and board of equalization will continue to undervalue the taxable property in said county subject to taxation by said assessor, and thus defeat relator in the collection of its said judgment and other indebtedness of said county to it.

'That the total value of the taxable property in said county as assessed in the year 1912 is $5,769,114, whereas, if the same were assessed at its true value in money, as required by law, the total valuation thereof would be not less than $15,000,000.'

The petition then prayed for a writ of mandamus commanding said assessor to assess and value for the year, 1913, and all subsequent years until said judgment and all other indebtedness of said county to relator shall have been fully paid, all of the taxable property of said Monroe county subject to assessment by said assessor at its true value in money as required by law, and also commanding said board of equalization to increase the assessment of all the property that might be undervalued by said assessor to the true value of said property in money, to the end that all of the taxable property of said county subject to assessment by said assessor be assessed at its true value. The following stipulation was contained in the contract:

'It is further agreed and declared that the actual value of the total taxable property in said county in the year 1911 is probably about $24,000,000 or more, and that the assessed value of the county is $6,000,000, and that hereafter said county, by its proper authority, will, if necessary, increase the courthouse building tax, or the assessed valuation of the county, to the full market value of the taxable property of said county as provided by law, and maintain such tax or said increased assessment from year to year in such manner as to enable the county to pay said warrants promptly and without delay.'

The names of A. Flora, T. T. Bateman, and Dave Dial were substituted as the members of the board of equalization in place of the members named in the petition. The amendment to the response contains the only defense made against the allowance of the writ. It is as follows:

'That said W. F. Jimmerson, as assessor for Monroe county, assessed all the real and personal property in Monroe county to be assessed by him at an amount equal to the assessment made by the Arkansas tax commission on railroad property, telephone property, Pullman car property, and other public utilities subject to be assessed by said Arkansas tax commission in Monroe county, and that he has fully performed his duty as such assessor by assessing property in Monroe county at the same rate and on the same basis as similar property in other counties in the state of Arkansas has been assessed. That said Arkansas tax commission assessed the property subject to be assessed by it, to wit, said railroad property, telephone property, and Pullman car property, at 50 cents on the dollar of the true valuation thereof, and that the real and personal property in all other counties in the state has been assessed at 50 cents on the dollar, or in a sum not exceeding 50 cents on the dollar, of the true valuation thereof, and that said assessor assessed all the property in Monroe county subject to be assessed by him at 50 cents on the dollar of the true valuation thereof. He says that in following the instructions and advice of the Arkansas tax commission he assessed all property subject to be assessed by him in Monroe county, real

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