W.U. Tel. Co. v. Poe

• Decision Date: 07 November 1894
• Citation: 64 F. 9
• Parties: WESTERN UNION TEL. CO. v. POE, State Auditor, et al. ADAMS EXP. CO. v. SAME.
• Court: U.S. District Court — Southern District of Ohio

64 F. 9

WESTERN UNION TEL. CO. v. POE, State Auditor, et al.

ADAMS EXP. CO. v. SAME.

United States Circuit Court, S.D. Ohio, Eastern Division.

November 7, 1894

Brown &amp Wells and Ramsey, Maxwell & Ramsey, for complainants.

John K Richards, Atty. Gen., and Thos. McDougall, for respondents.

TAFT Circuit Judge.

In these two cases the bills sought to enjoin the collection of a tax imposed upon the telegraph company and the Adams Express Company, under an act of the Ohio legislature, known as the 'Nichols Law.' A restraining order was issued against the defendants, who were the board of appraisers appointed under the act to enforce its provisions. The contention in the bill in each case was that the Nichols law was void, because it violated the constitution of Ohio and the constitution of the United States. Demurrers were filed to the bills, and on the issue raised by them the constitutionality of the Nichols law was argued. On April 23 1894, this court filed opinions holding that the law was in violation of that clause of the constitution of Ohio which requires that all property shall be taxed by a uniform rule. See 61 F. 449, 470. A short time thereafter, the supreme court of Ohio gave judgment in a mandamus proceeding in which it sustained the validity of the Nichols law, and held that it was not in conflict with the constitution of Ohio. State v. Jones, 37 N.E. 945. The opinion was not handed down until late in July last. In September, the complainants took decrees pro confesso on their bills, the defendants not having answered. The defendants now come into court, and make three motions: First, that the decrees pro confesso be set aside (Accompanying this motion is an affidavit showing that the defendants have a good defense on the facts, and that their delay in answering was because they intended to file a motion for rehearing in this case, based on the decision of the supreme court of Ohio). Second, a motion for a rehearing of the demurrer; and, third, a motion for the dissolution of the injunction. The chief controversy on these motions is whether this court should reverse its rulings with reference to the Nichols law, because of the subsequent opinion of the supreme court of Ohio. Strenuous objection is made to the granting of the motion because of the character of the suit in which the ruling of the supreme court of Ohio was made. An affidavit is filed to show that the suit was collusive, and that both sides of the controversy were conducted and controlled by counsel for defendants. The facts appear to be as follows: The present suits were two of half a dozen which were brought in this court for the same purpose by different express companies and the telegraph company. Among them was a suit brought by the National Express Company. The argument on demurrer in all the suits was heard in December of 1893, and the case was reargued by order of the court on the 23d of March of this year. When the reargument was ordered, the court dismissed the case of the National Express Company, as not involving a sufficient amount to give it jurisdiction. As soon as the bill of the National Express Company was dismissed, the attorney general of Ohio, with his associate counsel, Mr. McDougall, took steps to procure the immediate hearing of a test case before the supreme court of Ohio; and for this purpose it was arranged with the auditor of Lucas county that he should refuse to put upon the tax duplicate the amount returned to him by the board of appraisers under the Nichols act to be levied against the National Express Company. A proceeding in mandamus was then begun in the supreme court of Ohio to compel the auditor to enter the amount assessed on the duplicate. An answer was drawn by the attorney general to be filed by the auditor, raising the issue of the constitutionality of the Nichols law, and making its alleged invalidity the ground for his refusal. For this purpose the attorney general procurred Mr. D. K. Watson, a lawyer of Columbus, and formerly an attorney general of the state, formally to sign his name to the answer of the auditor as his counsel. He then invited Mr. Maxwell, the counsel for the complainant companies in this court, to appear in the supreme court in behalf of the auditor of Lucas county in the litigation thus begun, and to present to the supreme court the considerations upon which he relied to show that the law was invalid. Counsel for complainants, in this court, refused to take part in the hearing of the case in the supreme court of Ohio, but made a motion to dismiss the same in that court, on the ground that the proceeding was a collusive one, and involved a moot question, because, as shown by affidavit, the National Express Company had, without controversy, tendered and paid the amount assessed against it, to the auditor of Lucas county. The supreme court overruled the motion to dismiss the case, and proceeded to the hearing. As Mr. Maxwell refused to appear on behalf of the auditor of Lucas county in the supreme court of Ohio, Mr. D. K. Watson was regularly employed to represent him, and the cause was heard upon printed briefs and oral argument. A considered opinion has been handed down by the supreme court, and will appear in the official reports of that court as its judgment upon the question of the validity of the Nichols law under the constitution of Ohio.

In passing upon the question originally, this court expressed its embarrassment and hesitation in pronouncing a state law to be invalid because in violation of the state constitution, in advance of a decision by the supreme court of the state. It was fully conceded in that opinion that the supreme court of Ohio was the ultimate tribunal to decide the validity of the state law under the state constitution. This was emphatically laid down by the supreme court of the United States in Pelton v. Bank, 101 U.S. 143, 144. The supreme court of the state has now decided that the Nichols law is constitutional. The case before the court, though the court has overruled a demurrer to the bill, on the ground that the Nichols law is invalid, is nevertheless still pending in court, and no final decree has been entered therein. It seems to me manifest that it is the duty of this court to reverse its former ruling, and make it harmonize with that of the tribunal which has ultimate authority on the subject.

But it is said that the judgment of the supreme court of Ohio was procured by collusion. The facts do not bear out the claim. The opinion of that court was a considered opinion, after full argument and the filing of printed briefs. The case was a test case brought before the court in a summary way, as many such constitutional questions are brought there, and full opportunity was given for argument by counsel interested to invalidate the law. It is doubtless true that the cause was hurried by counsel for the state, because it was properly thought that a decision by the supreme court of the state-- the ultimate tribunal upon such questions-- would be much more satisfactory for purposes of administering the law throughout the state than any judgment which this court could give. All the facts tending to show the friendly character of the mandamus proceeding and the made-up feature of the case were known to the supreme court of Ohio, but that court held that it was not a moot case, and that it was one calling for consideration by them. A due respect for the judgments of the supreme court of Ohio makes it indelicate in this court to question the propriety of such a ruling in respect of a case plainly within its jurisdiction. It is pressed upon me that to change my ruling to accord with a subsequent decision of the supreme court of Ohio is to make this court nothing but a tribunal for the registering...