United States Express Co. v. Allen
| Decision Date | 21 September 1889 |
| Citation | 39 F. 712 |
| Parties | UNITED STATES EXP. CO. v. ALLEN, Comptroller, et al. |
| Court | U.S. District Court — Eastern District of Tennessee |
Tracy McFarland, Platt & Boardman, John M. Bright, R. L. Bright and Russell & Daniels, for complainant.
W. G M. Thomas and Joel Fort, for defendants.
The bill is filed in this case to enjoin the collection of a tax imposed upon complainant by the state, by the acts of 1887 and 1889, upon the ground that the tax is in violation of the constitution of the United States. At the threshold we are met with a motion by defendants to dismiss the suit for various reasons. It is insisted that there is not such diverse citizenship as to give this court jurisdiction. Diverse citizenship is one ground of jurisdiction in a federal court, but not the sole ground, by any means. Controversies as to the constitution and laws of the United States are of federal judicial cognizance as well, and the question in this case arises out of this branch of the court's jurisdiction, to which defendants' motion does not apply.
Another reason for the motion to dismiss is because the state of Tennessee has, by law, provided that the remedy in such cases as the one under consideration is to pay the taxes assessed under protest, and then bring suit to recover the same. This act of the legislature is constitutional unquestionably, but the case of Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, is decisive of the point made. Virginia had a law of like provisions with the Tennessee law, and objection was made that the money had not been paid and suit brought therefor. But the court held substantially that as Virginia had enacted a law making certain coupons receivable for taxes, and as these coupons had been tendered and refused the provisions of the federal constitution against legislation impairing the obligations of contracts had been violated, and no payment of the tax could be required as a condition of bringing suit. An unconstitutional tax is a void tax, and no right or duty can inhere in or depend upon it. There was no prepayment of the tax, and suit thereafter in the Virginia case. It is true coupons had been tendered, but this was done not as compliance with the Virginia statute, or under its provisions, but it was done so that the tax-payer might comply with the terms of his contract with the state and if the state refused to stand by its bargain, that he might find protection under the federal constitution. If, in the case in hand, the tax is unconstitutional, it is void. It confers no right, imposes no duty, supports no obligation. Nothing can be predicated upon it.
The only other branch of defendant's motion that it is necessary to consider is that the suit should be dismissed as to defendant Allen, because the face of the bill shows that he is not a resident of this district. As to this the motion must be sustained. The act of congress, approved August 13, 1888, correcting the enrollment of the act of March 3, 1887, provides in section 1:
'No civil suit shall be brought before either of said courts (the district or circuit) against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or defendant.' 25 St.at Large, 434.
This suit is not founded on diverse citizenship, and does not fall under the last category of the clause quoted, but it does fall under the first, and the language is positive and peremptory. This leaves the case here as to the sheriff and his deputy, to whom the process for the collection of the tax came, and by whom it was levied, and whom it sought to enjoin.
The bill seeks to enjoin the collection of two taxes, or a tax imposed in two years, each for $3,000. The legislature of Tennessee, by an act approved March 29, 1887, provided that the following taxes should be paid by express companies:
The same authority, by an act approved April 8, 1889, provided that express companies should pay a tax, ' By this act it is made a misdemeanor punishable by a fine and imprisonment, to conduct the express business without prepayment of the tax. In a case entitled Com. v. Express Co., under an act of Kentucky similar in its provisions to the Tennessee law of 1887, the Louisville...
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Baltimore & OR Co. v. Board of Public Works
...exclusive jurisdiction to entertain the suit was in the court of that district. 28 U.S.C.A. ß 112; 2 Cyc.Fed.Proc. 352; U. S. Exp. Co. v. Allen (C.C.) 39 F. 712; Railroad Comm. v. Burleson (D.C.) 255 F. 604. It is argued that the suit is of a local nature because the privilege tax is made b......