Western Union Telegraph Co. v. Trapp

• Decision Date: 18 March 1911
• Docket Number: 3,438.
• Citation: 186 F. 114
• Parties: WESTERN UNION TELEGRAPH CO. v. TRAPP, Auditor, et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

186 F. 114

WESTERN UNION TELEGRAPH CO. v. TRAPP, Auditor, et al. ^[1]

No. 3,438.

United States Court of Appeals, Eighth Circuit.

March 18, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

S. T Bledsoe (J. R. Cottingham, on the brief, and G. H. Fearons and Francis N. Whitney, of counsel), for appellant.

Charles West, Atty. Gen. of Oklahoma, for appellees.

Before ADAMS, Circuit Judge, and RINER and WM. H. MUNGER, District judges.

RINER District Judge.

The parties are arranged in this court as they were in the court below, the appellant being the complainant in the court below, and the appellees the defendants in the court below, and will be hereafter referred to as complainant and defendants, respectively.

The amended bill challenges the assessment of complainant's property for taxation in the state of Oklahoma for the year 1908, and the relief sought is an injunction enjoining the state board of assessors, composed of the Governor, State Auditor, State Treasurer, Secretary of State, Attorney General, State Inspector and Examiner, and President of the Board of Agriculture, and especially the State Auditor, from certifying the assessment made by the board to the various counties of the state for extension on the tax roll.

It is averred in the bill that pursuant to the requirements of the laws of Oklahoma complainant filed with the state board of assessors a complete statement of all its properties in the state of Oklahoma, with a correct statement of the actual cash value of each item thereof, including the franchise rights in connection therewith; that the board increased the value of its property to three times the amount at which it had been returned; that the valuation as made was arbitrarily made without any justification or excuse; that the act of the board of assessors in so valuing the property of the complainant was fraudulent and wrongful and amounted to denying the complainant the equal protection of the laws and the taking of its property without due process of law; that the board of assessors in so valuing its property intentionally overvalued the same in order to impose upon complainant a greater part than its just share of the burden of taxation. It is further averred that the property of other citizens of the state was assessed at less than 75 per cent. of its actual cash value; that the property of complainant of like character as that owned by other citizens of the state was assessed at three times its actual cash value; that such under assessment of the property of other persons and corporations, other than public service corporations, located in the state of Oklahoma, was made by the board of equalization systematically, intentionally, and purposely, and that, unless enjoined, it would cause the same to be certified to the county officers of the several counties of the state upon the records thereof for the purpose of taxation, thus casting upon the complainant more than its just share of the burden of taxation. equalization which equalized the property of the counties was required by the Constitution of the state to assess the property of complainant, but that said board did not do so, but the same was assessed by the board of assessors of the state in violation of the terms of the Constitution of the state; that the board of equalization and the board of assessors were two separate and independent bodies, each acting in a regularly organized capacity, keeping minutes of its proceedings and actions in matters coming before it; that the boards acting separately did so in recognition of the Constitution and statutory provisions that they were separate and distinct tribunals, at no time exercising a common jurisdiction. It is further averred that in doing all of the wrongful acts complained of defendants were acting in their official capacity as members of the state board of assessors pursuant to a statute of Oklahoma approved on the 17th of April, 1908; that the assessment was wholly void because of the (1) arbitrary, wrongful, and fraudulent action of the board in assessing the property of complainant at three times the value of the property returned by complainant; (2) under the Constitution of the state of Oklahoma (article 10, Sec. 21) a state board of equalization is created, and it is made the duty of the board to adjust and equalize the valuation of the real and personal property in the several counties in the state and to perform such other duties as may be prescribed by law, and to assess all railroad and public service corporation property; that, inasmuch as the Constitution of the state provided that this property should be assessed by the state board of equalization, the provisions of the statute creating a board of assessors is invalid as being in conflict with the Constitution of the state, and that the assessment made by the board of assessors is a nullity and of no validity whatever; (3) because both the value fixed upon the property of complainant was much greater than its fair cash value, and the general property of the state was assessed at less than 75 per cent. of its cash value, which resulted in placing a greater burden upon the complainant's property than was placed upon other property taxed in this state, in violation of the provisions of the Constitution of the United States, and of article 5 of the Constitution of the State of Oklahoma; (4) that under and by virtue of the provisions of section 21, art. 10, of the Constitution of Oklahoma, it is made the duty of the state board of equalization to adjust and equalize the valuation of the real and personal property of the several counties in the state other than public service corporations, but, that neither the Constitution nor the statute under which the state board of equalization and the board of assessors assumed to act makes any provision for equalizing the assessment of the property which is assessed by the board of assessors, either as between the various properties assessed by the board or with the other property in the state assessed by the various local assessing officers; that therefore complainant has been denied the equal protection of the laws; (5) because the law creating the board of assessors does not provide for giving any notice to persons or corporations, whose property is to be assessed by it, of the time or place when the board shall consider the return made by it and assess its property for the purpose of taxation.

After averring its willingness to pay the taxes justly due, the bill prays for an injunction enjoining the board and the auditor from acting and dealing with the assessment as a valid and lawful assessment of the property of the complainant, and from certifying the same to the county and other officers of the state. The averments of the amended bill were put in issue by answers by the several defendants, and replications filed to these answers. Testimony was taken, and the case was brought on for final hearing, resulting in a decree dismissing the bill.

It was suggested at the oral argument, and is repeated in the brief filed on behalf of the appellees, that the Circuit Court was without jurisdiction to hear and determine this suit because there was an adequate remedy at law. This suggestion will be first noticed, because, if the Circuit Court was without jurisdiction, its decree would have no force and effect, and this appeal should be dismissed.

The record shows that the complainant is a citizen of the state of New York, that the defendants were all citizens of the state of Oklahoma, and that the amount involved in the suit exceeds the sum of $2,000, exclusive of interest and costs. The Constitution and laws of the United States confer upon the Circuit Courts jurisdiction to hear and determine controversies at law and in equity between citizens of different states in which there is involved more than $2,000, exclusive of interest and costs. This cannot be said to be a suit against the state within the eleventh amendment to the federal Constitution, although the board consists wholly of state officers. It is a suit brought by a taxpayer in which it is charged that the defendants are about to execute a taxing law of the state against the complainant in such a manner that, in view of the mode in which other taxing laws are executed against a large part of the taxable property of the state, the defendants will impose upon the complainant more than its just share of the burden of taxation in violation of its right under the Constitution of the state to pay only an equal share of the taxes in proportion to the value of its property. In other words, it is a suit against individuals by which it is sought to enjoin them from doing certain acts which they assert to be by the authority of the state, but which the complainant avers in its bill is without lawful authority. Huidekoper v. Hadley, 177 F. 1, 100 C.C.A. 395; Smyth v. Ames, 169 U.S. 518, 18 Sup.Ct. 418, 42 L.Ed. 819; Reagan v. Trust Co., 154 U.S. 362, 14 Sup.Ct. 1047, 38 L.Ed. 1014; Pennoyer v. McConnaughy, 140 U.S. 1, 11 Sup.Ct. 699, 35 L.Ed. 363; Poindexter v. Greenhow, 114 U.S. 270, 5 Sup.Ct. 903, 962, 29 L.Ed. 185; Cummings v. Bank, 101 U.S. 153, 25 L.Ed. 903.

The power of taxation is the power to take from the owner that which is his to help defray the expense of the protection received from the government, and, if in any case this power is illegally exercised, it is an invasion of private right, and in the absence of some specific limitation of the remedy, imposed by law, the party injured may resort to the courts to vindicate his right against those who attempt such invasion by any form of action which he could use against any other wrongdoer with respect to the same class of wrongs.

It is quite true that ...