The collection of taxes assessed under the authority of a state
is not to be restrained by writ of injunction from a court of the
United States unless it clearly appears not only that the tax is
illegal, but that the owner of the property taxed has no adequate
remedy by the ordinary processes of the law and that there are
special circumstances bringing the case within some recognized head
of equity jurisdiction.
A railroad bridge across a navigable river forming the boundary
line between two states is not, by reason of being an instrument of
interstate commerce, exempt from taxation by either state upon the
part within it. A railroad bridge is taxable under the Code of West
Virginia of 1891, c. 29, § 67, and although the board of
public works assesses separately the whole length of the railroad
track within the state and that part of the bridge within the
state, yet if the railroad company does not, as allowed by that
section, apply to the auditor to correct any supposed mistake in
the assessment, nor appeal, within thirty days after receiving
notice of the decision of the board, to the circuit court of the
county, and the officers of the state make no attempt to interfere
with the company's possession and control of its real estate, nor,
until after the expiration of the thirty days, either to impose a
penalty for delay in paying the taxes or to levy on personal
property for nonpayment of them, the company cannot maintain a bill
in equity in a court of the United States to restrain the
assessment and collection of any part of the taxes.
The Pittsburgh, Cincinnati, Chicago & St. Louis Railway
Company, a corporation of the State of Ohio owning and operating a
railway running through the states of West Virginia, Ohio,
Pennsylvania, Indiana, and Illinois, under the laws of those
states, and crossing the Ohio River, a navigable stream forming the
boundary between the states of West Virginia
Page 172 U. S. 33
and Ohio by means of a bridge built, owned, and controlled by
the plaintiff, filed in the Circuit Court of the United States for
the District of West Virginia, a bill in equity against the Board
of Public Works of the State of West Virginia, a public
corporation, against its members individually (being the governor,
the auditor, the treasurer, the superintendent of free schools, and
the Attorney General of the state) and against one Cowan, Sheriff
of Brooke County, all of them citizens of that state, to restrain
the assessment and collection of taxes upon the bridge, under
section 67 of chapter 29 of the Code of West Virginia of 1891.
The bill alleged that under and by virtue of that section of the
Code, the plaintiff was required, through its principal officers,
to make return in writing, under oath, to the auditor of the state
on or before the 1st of April in each year and in the manner
prescribed by that section, of its property subject to taxation in
the state; the auditor was required to bring the return, as soon as
practicable, before the board of public works; that board was
authorized either to approve the return or to proceed to assess and
fix the fair cash value of all the property of railroad companies
which they were so required to return for taxation, and it was
further provided that as soon as possible after the value of any
railroad property was fixed for purposes of taxation by one of the
several methods designated by that section, the auditor should
assess and charge such property with the taxes properly chargeable
thereon.
The bill also alleged that the plaintiff's main line of railway
ran through the State of West Virginia for a distance of 7.11
miles, of which 6.53 miles were in the County of Brooke, and 58
miles in the County of Hancock; that its bridge across the Ohio
River was part of its railway; that the total length of the bridge,
including its abutments, was 2,044 feet, of which 1,518 feet were
in West Virginia and 526 feet in Ohio, and that the plaintiff,
before April 1, 1894, as required by section 67 of chapter 29 of
the Code, made to the Auditor of the State of West Virginia a
return of its property subject to taxation in the state for the
year 1894 (a copy of which was
Page 172 U. S. 34
annexed to and made part of the bill, and is set out in the
margin
*), and, in making
that return, included, in the 7.11 miles of its main track, so much
of the bridge as lay within the state, amounting to 1,518 feet.
The bill further alleged that, sometime in September, 1894, the
board of public works, meeting at Charleston, in that state, as
provided by that section of the Code, to assess and fix the
Page 172 U. S. 35
valuation of railroad property for the purposes of taxation,
refused to approve the plaintiff's return, and proceeded, among
other things, to assess the plaintiff with 6.53 miles of main track
and 6.53 miles of second track in the County of Brooke, which
assessment and valuation covered the entire length of its railroad
in the State of West Virginia, including so much of the bridge as
lay within the state; and, in addition thereto, valued and assessed
the bridge, as a separate structure at the sum of $200,000, placing
the tax upon the bridge at $3,060, and the auditor proceeded to
assess the plaintiff with this sum of $3,060 -- thereby assessing
it with the entire length of the bridge in West Virginia as a part
of its railway in the state and also assessing it with the bridge
as a separate structure, thus taxing the plaintiff a second time
for that part of its bridge which lay in West Virginia, whereas the
bridge should only have been assessed as so many feet of the
railway,
The bill further alleged that neither the board of public works,
nor any member thereof, nor the auditor, informed the plaintiff of
the valuation which had been placed upon its property by the board
for taxation, nor of the taxes which had been assessed thereon by
the auditor; that, on September 28, 1894, the plaintiff, not having
been informed of the action of the board or of the auditor,
addressed, through its chief engineer, a letter to the auditor
inquiring what action had been taken by the board of public works
and the auditor with regard to the assessment of taxes on its
property for 1894; that the letter was not answered, nor was any
information in regard to the taxes given to the plaintiff until
January 19, 1895, when it received from the auditor a statement
showing that the board of public works had placed a separate and
additional valuation of $200,000 upon the bridge for the purposes
of taxation, and that the auditor had proceeded to assess and
charge the plaintiff with the sum of $3,060 as a tax for 1894 upon
that valuation, and that, on January 19, 1895, the auditor demanded
of the plaintiff payment of that sum, and the plaintiff refused to
pay it, but paid to the auditor the rest of the taxes assessed,
amounting to the sum of $4,187, upon a valuation
Page 172 U. S. 36
of $310,830, which included the plaintiff's railroad in the
County of Hancock.
The bill further alleged that "on the ___ day of _____, 1895,"
the auditor added ten percent to the sum of $3,060, to pay the
expense of collection, and certified that sum, with the ten percent
added, to the Sheriff of Brooke County for collection, and that the
sheriff "since said date" had demanded payment of the sum of $3,060
and the ten percent additional, and was threatening to collect them
by legal process, and would thus inflict irreparable injury upon
the plaintiff unless prevented by the interposition of a court of
competent jurisdiction.
The plaintiff further alleged that the bridge constituted a part
of its line of railway, and had no separate earning capacity, and
no greater earning capacity than any other equal number of feet of
its line of railway, and was used exclusively by it in transporting
freight and passengers across the Ohio River to and from the States
of West Virginia and Ohio, and that it was advised and believed
that the bridge was an instrument of interstate commerce, and was
not, as a separate structure from its line of railway, a proper
subject for taxation by the State of West Virginia in the manner
above set forth.
The bill then charged that the tax upon the bridge was illegal
and unjust, and constituted a cloud upon the title to the bridge,
and that, by reason of that clause of the Constitution of the
United States which gives Congress control over interstate
commerce, the Circuit Court of the United States for the District
of West Virginia was clothed with authority and jurisdiction to
restrain and to prevent the assessment and collection of this
illegal and unjust tax, and prayed for an injunction against its
assessment and collection, and for further relief.
The bill was sworn to March 18, 1895, and was filed March 25,
1895, together with an affidavit to the effect that, since the bill
was sworn to, the sheriff had levied upon one of the plaintiff's
freight engines for the purpose of enforcing the collection of the
tax upon the bridge. Upon the filing of the bill, a temporary
injunction was granted as prayed for.
A general demurrer to the bill was afterwards filed and
Page 172 U. S. 37
sustained, the injunction dissolved, and the bill dismissed. The
plaintiff appealed to this Court under the Act of March 3, 1891, c.
517, § 5, 26 Stat. 828.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The collection of taxes assessed under the authority of a state
is not to be restrained by writ of injunction from a court of the
United States unless it clearly appears not only that the tax is
illegal, but that the owner of the property taxed has no adequate
remedy by the ordinary processes of the law, and that there are
special circumstances bringing the case under some recognized head
of equity jurisdiction.
Dows v.
Chicago, 11 Wall. 108;
Hannewinkle v.
Georgetown, 15 Wall. 547;
State Railroad Tax
Cases, 92 U. S. 575;
Union Pacific Railway Co. v. Cheyenne, 113 U.
S. 516;
Milwaukee v. Koeffler, 116 U.
S. 219;
Shelton v. Platt, 139 U.
S. 591.
In
Dows v. Chicago, a citizen of the State of New York,
owning shares in a national bank organized and doing business in
the City of Chicago, filed a bill in equity, in the Circuit Court
of the United States for the Northern District of Illinois to
restrain the collection of a tax assessed by the City of Chicago
upon his shares in the bank, alleging, among other things, that the
tax was illegal and void because the tax was not uniform and equal
with taxes on other property, as required by the constitution of
the state, and because the shares were taxable only at the domicile
of the owner, and therefore were not property within the
jurisdiction of the State of Illinois. This Court, speaking by Mr.
Justice Field, without considering the validity of the objections
to the tax, held that the bill could not be maintained, saying:
"Assuming the tax to
Page 172 U. S. 38
be illegal and void, we do not think any ground is presented by
the bill justifying the interposition of a court of equity to
enjoin its collection. The illegality of the tax and the threatened
sale of the shares for its payment constitute of themselves alone
no ground for such interposition. There must be some special
circumstances attending a threatened injury of this kind
distinguishing it from a common trespass and bringing the case
under some recognized head of equity jurisdiction before the
preventive remedy of injunction can be invoked. It is upon taxation
that the several states chiefly rely to obtain the means to carry
on their respective governments, and it is of the utmost importance
to all of them that the modes adopted to enforce the taxes levied
should be interfered with as little as possible. Any delay in the
proceedings of the officers upon whom the duty is devolved of
collecting the taxes may derange the operations of the government,
and thereby cause serious detriment to the public. No court of
equity will therefore allow its injunction to issue to restrain
their action except where it may be necessary to protect the rights
of the citizen whose property is taxed, and he has no adequate
remedy by the ordinary processes of the law."
78 U. S. 11
Wall. 109,
78 U. S.
110.
"The party of whom an illegal tax is collected has ordinarily
ample remedy, either by action against the officer making the
collection or the body to whom the tax is paid. Here such remedy
existed. If the tax was illegal, the plaintiff, protesting against
its enforcement, might have had his action, after it was paid,
against the officer or the city to recover back the money, or he
might have prosecuted either for his damages. No irreparable injury
would have followed to him from its collection. Nor would he have
been compelled to resort to a multiplicity of suits to determine
his rights. His entire claim might have been embraced in a single
action."
11 Wall.
78 U. S.
112.
In
State Railroad Tax Cases, this Court, in a careful
and thorough opinion delivered by Mr. Justice Miller, stated
that
"it has been repeatedly decided that neither the mere illegality
of the tax complained of nor its injustice nor irregularity of
themselves give the right to an injunction in a
Page 172 U. S. 39
court of equity,"
referred to section 3224 of the Revised Statutes, which provides
that "no suit for the purpose of restraining the assessment or
collection of any tax shall be maintained in any court," and said
that,
"though this was intended to apply alone to taxes levied by the
United States, it shows the sense of Congress of the evils to be
feared if courts of justice could, in any case, interfere with the
process of collecting the taxes on which the government depends for
its continued existence."
The court then quoted from
Dows v. Chicago and
Hannewinkle v. Georgetown, above cited, and proceeded as
follows:
"We do not propose to lay down in these cases any absolute
limitation of the powers of a court of equity in restraining the
collection of illegal taxes. But we may say that in addition to
illegality, hardship, or irregularity, the case must be brought
within some of the recognized foundations of equitable
jurisdiction, and that mere errors or excess in valuation, or
hardship or injustice of the law, or any grievance which can be
remedied by a suit at law, either before or after payment of taxes,
will not justify a court of equity to interpose by injunction to
stay collection of a tax. One of the reasons why a court should not
thus interfere, as it would in any transaction between individuals,
is that it has no power to apportion the tax, or to make a new
assessment, or to direct another to be made by the proper officers
of the state. These officers and the manner in which they shall
exercise their functions are wholly beyond the power of the court
when so acting. The levy of taxes is not a judicial function. Its
exercise, by the constitutions of all the states and by the theory
of our English origin, is exclusively legislative. A court of
equity is therefore hampered in the exercise of its jurisdiction by
the necessity of enjoining the tax complained of, in whole or in
part, without any power of doing complete justice by making or
causing to be made a new assessment on any principle it may decide
to be the right one. In this manner, it may, by enjoining the levy,
enable the complainant to escape wholly the tax for the period of
time complained of, though it be obvious that he ought to pay a tax
if imposed in the proper manner."
92 U.S.
92 U. S.
613-615.
Page 172 U. S. 40
In
Union Pacific Railway Co. v. Cheyenne, in which the
Union Pacific Railway Company obtained an injunction against the
levy of a tax by the City of Cheyenne, the facts were peculiar. The
plaintiff, owning many lots of land in that city, had paid a tax
assessed on all its property by a board of equalization under a
general statute of the Territory of Wyoming, and had also been
taxed by the City of Cheyenne under provisions of its charter which
had been repealed by that statute, and the bill showed, as stated
in the opinion, that the levy complained of "would involve the
plaintiff in a multiplicity of suits as to the title of lots laid
out and being sold, would prevent their sale, and would cloud the
title to all its real estate."
113 U. S. 113
U.S. 526,
113 U. S. 527.
In
Shelton v. Platt, 139 U. S. 591, the
president, in behalf of himself and other members of an express
company, a joint-stock company of the State of New York, filed a
bill in equity in a circuit court of the United States in Tennessee
to restrain the collection of a license tax upon the company under
a statute of the State of Tennessee alleged to be contrary to the
Constitution of the United States. The bill averred that the
comptroller had issued a warrant of distress to a sheriff to
collect such taxes for two years, the sheriff had levied or was
about to levy the warrant on the property of the company, and the
comptroller was about to issue a like warrant to collect the tax
for a third year; that the property of the company in Tennessee was
employed in interstate commerce in the express business, and was
necessary to the conduct of it, and that the seizure by the sheriff
would greatly embarrass the company in the conduct of that
business, and subject it to heavy loss and damage, and the public
served by it to great loss and inconvenience. This Court held that
even if the statute was unconstitutional and the tax void, the bill
could not be maintained, and, speaking by the Chief Justice,
said:
"The trespass involved in the levy of the distress warrant was
not shown to be continuous, destructive, inflictive of injury,
incapable of being measured in money, or committed by irresponsible
persons. So far as appeared, complete compensation for the
resulting injury could have been had by recovery of damages
Page 172 U. S. 41
in an action at law. There was no allegation of inability on the
part of the express company to pay the amount of the taxes claimed,
nor any averment showing that the seizure and sale of the
particular property which might be levied on would subject it to
loss, damage, and inconvenience which would be in their nature
irremediable."
The Court went on to say that another statute of the state
(which had been adjudged by this Court in
Tennessee v.
Sneed, 96 U. S. 69, to
afford a simple and effective remedy) provided that, where an
officer charged by law with the collection of a tax took any steps
to collect it, a party conceiving it to be unjust or illegal might
pay it under protest and sue the officer to recover it back, and
should have no other remedy, by injunction or otherwise. The Court
observed that
"legislation of this character has been called for by the
embarrassments resulting from the improvident employment of the
writ of injunction in arresting the collection of the public
revenue, and, even in its absence, the strong arm of the court of
chancery ought not to be interposed in that direction except where
resort to that court is grounded upon the settled principles which
govern its jurisdiction,"
and that the jurisdiction exercised by the courts of the United
States to restrain by injunction the collection of a tax wholly
illegal and void had always been rested on other grounds than
merely the unconstitutionality of the tax. 139 U.S.
139 U. S.
596-598.
In the light of these decisions, we proceed to an examination of
the provisions of the Code of West Virginia of 1891, c. 29, §
67, under which the tax upon the plaintiff's bridge was
assessed.
That section requires every corporation owning or operating a
railroad wholly or partly within the state to make, through its
principal officers, to the auditor of the state, on or before the
1st of April in each year, a return in writing, under oath,
showing, among other things, the following: 1st, the whole number
of its miles of railroad within the state, 2d, if the railroad is
partly within and partly without the state, the whole number of
miles within and of those without the state, including all its
branches, 3d,
"Its railroad track in each county in this state through which
it runs, giving the whole number of miles of road in the county,
including the
Page 172 U. S. 42
track and its branches, and side and second tracks, switches and
turnouts therein, and the fair cash value per mile of such railroad
in each county, including in such valuation such main track,
branches, side and second tracks, switches and turnouts;"
4th, all its rolling stock, and the fair cash value thereof,
distinguishing between what is used wholly within the state, and
what is used partly within and partly without the state, and the
proportionate value of the latter, according to the time used and
the number of miles run thereby in and out of the state, "and the
proportional cash value thereof to each county in this state
through which such railroad runs"; 5th,
"Its depots, stationhouses, freight houses, machine and repair
shops and machinery therein, and all other buildings, structures
and appendages connected thereto or used therewith, together with
all other real estate, other than its railroad track, owned or used
by it in connection with its railroad, and not otherwise taxed,
including telegraph lines owned or used by it, and the fair cash
value of all buildings and structures, and all machinery and
appendages, and of each parcel of such real estate, including such
telegraph line, and the cash value thereof in each county in this
state in which it is located."
The return made by the railroad company to the auditor is to be
laid by him as soon as practicable before the board of public
works. If the return is satisfactory to the board, the board shall
approve it and, by an order entered upon its records, direct the
auditor to assess the property of the company with taxes, and he
shall assess it as afterwards provided. But if the return is not
satisfactory, the board is authorized to proceed in such manner as
it may deem best to obtain the information required to be furnished
by the return, and may compel the attendance of witnesses and the
production of papers, and is directed, as soon as possible after
having procured the necessary information, to assess and fix the
fair cash value of all the property required to be returned, in
each county through which the railroad runs; and, in ascertaining
such value, to consider the return, and all the evidence and
information that it has been able to procure, and all such as may
be offered by the railroad company.
Page 172 U. S. 43
The legislature evidently intended that the annual return should
include all the real estate owned or used by the railroad company
in connection with its railroad within the state. The plaintiff's
bridge across the Ohio River between the states of West Virginia
and Ohio was real estate. It was a "building or structure," within
the proper meaning of the words.
Bridge
Proprietors v. Hoboken Co., 1 Wall. 116,
68 U. S. 147;
Whitall v. Gloucester Freeholders, 11 Vroom (40 N.J.Law)
302, 305. And it had been declared by Congress to be "a lawful
structure." Act of July 14, 1862, c. 167, 12 Stat. 569. The fact
that the bridge was an instrument of interstate commerce did not
exempt so much of it as was within West Virginia from taxation by
the state.
Henderson Bridge Co. v. Henderson, 141 U.
S. 679.
According to the facts alleged in the bill and admitted by the
demurrer, the plaintiff has been assessed by the board of public
works one sum upon the whole length of its railroad track within
the state and another sum upon that part of the bridge within the
state, as a separate structure.
The plaintiff alleged in the bill that its return included, in
the number of miles of its main track, so much of the bridge as lay
within the state, and contended that the bridge was included in
"its railroad track," within the meaning of the third subdivision
of the section of the code above quoted, and therefore should have
been assessed only as so many feet of the railroad. But the return
does not mention the bridge, and if it was included in the term
"railroad track" in that subdivision, the increased value of the
track by reason of the bridge might properly be taken into
consideration in estimating the value of the railroad track, and
the assessment of the track and the bridge separately would seem to
be a difference of form, rather than of substance.
Pittsburgh
&c. Railway v. Backus, 154 U. S. 421,
154 U. S. 429;
Robertson v. Anderson, 57 Ia. 165.
If the bridge was not covered by the third subdivision, it was
certainly included in the fifth. This subdivision begins by
designating
"depots, stationhouses, freight houses, machine and repair shops
and machinery therein, and all other buildings,
Page 172 U. S. 44
structures and appendages connected thereto or used
therewith."
It was argued that the words "thereto" and "therewith" in this
sentence referred to the same antecedent as the previous word
"therein," and that "therein" referred to depots, stationhouses,
freight houses machine and repair shops, and therefore "thereto"
and "therewith" must be equally restricted. But if a strictly
grammatical construction should be adopted, it may well be doubted
whether "machinery therein" related to anything but machine and
repair shops, and it can hardly have been the intention of the
legislature to limit the words, "buildings, structures and
appendages connected thereto or used therewith" to those connected
or used with such shops only. If the bridge is not a "building or
structure," within the meaning of those words as here used, it
certainly (if not part of the "railroad track," under the third
subdivision) comes within the words next following, "together with
all other real estate, other than its railroad track, owned or used
by it in connection with its railroad." By a clause near the end of
the same section, it is provided that "all buildings and real
estate owned by such company and used or occupied for any purpose
not immediately connected with its railroad" are to be taxed like
similar property of individuals.
The same section further provides that the decision made by the
board of public works shall be final unless the railroad company,
within thirty days after such decision comes to its knowledge,
appeals (which it is expressly authorized by the statute to do)
from the decision, as to the assessment and valuation made in each
county through which the railroad runs, to the circuit court of
that county. The appeal is to have precedence over all other cases
and is to be tried as soon as possible after it is entered. That
court, on such appeal, is to hear all legal evidence offered by the
appellant or by the state, county, district, or municipal
corporation, and if satisfied that the valuation as fixed by the
board of public works is correct, to confirm the same, but if
satisfied that such valuation is too high or too low, to correct it
and to ascertain and fix the true value of the property
Page 172 U. S. 45
according to the facts proved, and certify such value to the
auditor.
This provision for a review and correction by the circuit court
of the county of the assessment made by the board of public works
affords a convenient and adequate remedy for any error in the
taxation, and has been held by the highest court of the state to be
in accordance with its Constitution.
Wheeling Bridge Railway v.
Paull, 39 W.Va. 142.
That court has often had occasion to inquire how far the action
of the circuit court of the county in this respect is
administrative only, and how far it may be considered as judicial
in its nature.
Pittsburgh &c. Railway v. Board of Public
Works, 28 W.Va. 264;
Charleston & Southside Bridge Co.
v. Kanawha County Court, 41 W.Va. 658;
State v. South Penn
Co., 42 W.Va. 80.
See also Upshur County v. Rich,
135 U. S. 467.
But it is not important in this case to pursue that course of
inquiry, since in matters of taxation it is sufficient that the
party assessed should have an opportunity to be heard either before
a judicial tribunal or before a board of assessment at some stage
of the proceedings.
Kelly v. Pittsburgh, 104 U. S.
78;
Pittsburgh &c. Railway v. Backus,
154 U. S. 421.
Even if, therefore, no previous notice of the hearing before the
board of public works was required by the statute or was in fact
given to this plaintiff (which is by no means clear), yet the
notice of its decision, with the right to appeal therefrom to the
circuit court of the county, and there to be heard and to offer
evidence before the valuation of its property for taxation was
finally fixed afforded the plaintiff all the notice to which it was
entitled.
The railroad bridge in question being liable to assessment under
section 67, it is unnecessary for the purposes of this case to
determine whether it should be treated as "railroad track" or as a
"building or structure" or as "other real estate, owned or used in
connection with the railroad." In any view, its assessment and
valuation by the board of public works, of which the plaintiff
complains, was subject to review by the
Page 172 U. S. 46
circuit court of the county upon an appeal seasonably taken by
the railroad company.
The section indeed also provides that, when the return made to
the auditor is satisfactory to the board of public works or when an
assessment is made by that board, the auditor shall immediately
certify to the county court of each county through which the
railroad runs the value of the property of the railroad company
therein, as valued and assessed as aforesaid, that that court shall
apportion that value among the districts, school districts, and
municipal corporations through which the railroad runs, and that
the clerk of that court, within 30 days after it has laid the
county and district levies, shall certify to the auditor the
apportionment so made, that the recording officer of each district
or municipal corporation through which the road runs shall, within
30 days after a levy is laid therein, certify to the auditor the
amount levied, and that, if any such officer fails to do so, the
auditor may obtain the rate of taxation from the land books in his
office or from any other source.
But the provision directing the auditor to immediately certify
the assessment made by the board of public works to the county
court of each county must be construed as subordinate to, and
controlled by, the next preceding provision, giving the right of
appeal from the board of public works to the circuit court of the
county, as clearly appears from the next succeeding provision, by
which it is, after the value of the property of the railroad
company has been "fixed by the board of public works, or by the
circuit court on appeal as aforesaid," that the auditor is directed
to assess and charge the property of the company "with the taxes
properly chargeable thereon" in a book to be kept by him for that
purpose.
The statute also contains a provision that
"no injunction shall be awarded by any court or judge to
restrain the collection of the taxes, or any part of them, so
assessed except upon the ground that the assessment thereof was in
violation of the Constitution of the United States or of this
state, or that the same were fraudulently assessed, or that there
was a mistake made by the auditor in the amount of taxes properly
chargeable
Page 172 U. S. 47
on the property of said corporation or company, and in the
latter case no such injunction shall be awarded unless application
be first made to the auditor to correct the mistake claimed, and
the auditor shall refuse to do so, which facts shall be stated in
the bill."
While this provision cannot, of course, bind the courts of the
United States, it is nearly in accord with the rule governing the
exercise of the jurisdiction in equity of those courts as
established by the decisions cited at the beginning of this
opinion.
The statute further makes it the duty of the auditor, "as soon
as possible after he completes the said assessments," to make out
and transmit to the railroad company "a statement of all taxes and
levies so charged," and the duty of the railroad company "so
assessed and charged" to pay "the whole amount of such taxes and
levies upon its property" by the 20th of January "next after the
assessment thereof," and if the company does not pay "such taxes
and levies" by that day, the auditor is directed to add ten percent
to the amount thereof to pay the expenses of collecting them, and
to certify to the sheriff of each county "the amount of such taxes
and levies assessed within his county."
In the present case, the bill does not allege that there was any
fraud in the assessment, or that the defendant made any attempt to
interfere with the plaintiff's ownership or control of its real
estate, or that the plaintiff either made any application to the
auditor to correct any supposed mistake in the assessment or took
any appeal from the decision of the board of public works to the
circuit court of the county, or that, within the thirty days
allowed for such an appeal, any attempt was made by the defendants
either to charge the plaintiff with the penalty of ten percent for
delay in payment of the taxes or to levy upon its property for
nonpayment of them.
On the contrary, the bill would appear to have been studiously
framed to avoid making any such allegation. The bill, which was
sworn to on March 18, 1895, alleged that, on January 19, 1895
(sixty days before), the plaintiff received notice from the auditor
of the decision of the board of public works; that "on the ___ day
of 1895" (which might be any day
Page 172 U. S. 48
before the bill was sworn to), the auditor added the ten percent
and certified to the sheriff the amount of the tax assessed, with
that addition, and that the sheriff "since said date" had demanded
payment of both sums from the plaintiff, and the affidavit filed
with the bill on March 25, 1895, shows that the sheriff's levy on
one of the plaintiff's engines was made after the bill was sworn
to.
The only reasonable inference from these vague allegations of
the bill is that the auditor waited for more than thirty days after
giving the plaintiff notice of the decision of the board of public
works in order to afford full opportunity for an appeal from that
decision, and that no penalty was imposed for delay in payment of
the taxes, nor any active measure taken to enforce them, until it
had become clear that the plaintiff did not intend to take such an
appeal.
The plaintiff, upon its own showing, having made no attempt to
avail itself of the adequate remedies provided by the statute of
the state for the review of the assessment complained of, is not
entitled to maintain this bill.
Decree affirmed.
*
Valuation of P., C., C. & St.L. R'y Main Line in the West
Virginia
as Returned for Taxation for the Year 1894
Brooke County. Cross Creek District.
Main track . . . . . 6.53 miles, at $13,000.00 = $ 84,890.00
Second track . . . . 6.53 " " 4,000.00 = 26,120.00
Side track . . . . . 12.62 " " 2,500.00 = 31,550.00
Rolling stock. . . . 6.53 " " 3,567.78 = 23,298.00
Telegraph line . . . 6.53 " " 100.00 = 653.00
Supplies and tools . . . . . . . . . . . . . . . . 1,306.00
Station house at Colliers. . . . . . . . . . . . . 1,300.00
Water tank at Colliers . . . . . . . . . . . . . . 400.00
Sand house at Colliers . . . . . . . . . . . . . . 50.00
Car house at Colliers. . . . . . . . . . . . . . . 100.00
Trainmen's house at Colliers . . . . . . . . . . . 950.00
Scale house at Colliers. . . . . . . . . . . . . . 100.00
Tower west of Colliers . . . . . . . . . . . . . . 450.00
Tower at New Cumberland Junction . . . . . . . . . 800.00
Station at Holliday's Cove . . . . . . . . . . . . 180.00
Station at Wheeling Junction . . . . . . . . . . . 400.00
-----------
Total listed value for Brooke County . . . . . . . . . . .
$172,547.00
Hancock County, Butler District.
Main track . . . . . 0.58 miles, at $13,000.00 = $ 7,540.00
Second track . . . . 0.58 " " 4,000.00 = 2,320.00
Side track . . . . . 0.95 " " 2,500.00 = 2,375.00
Rolling stock. . . . 0.58 " " 3,567.78 = 2,069.00
Telegraph line . . . 0.58 " " 100.00 = 58.00
Supplies and tools . . . . . . . . . . . . . . . . 116.00
-----------
Total listed value for Hancock County. . . . . . . . . . .
14,478.00
-----------
Total listed value of main line. . . . . . . . . . . . . .
$187,025.00
============
Summary of Mileage
Main track . . . . . . . . . . . . 7.11 miles
Second track . . . . . . . . . . . 7.11 "
Side track . . . . . . . . . . . . 13.57 "
Rolling stock. . . . . . . . . . . 7.11 "
Telegraph line . . . . . . . . . . 7.11 "
