64 F. 897 | U.S. Circuit Court for the Northern District of Illnois | 1894
(after stating tlie facts). This motion to remand presents two important questions, namely: (1) Can the proceedings for this special assessment he held to constitute a “suit,” within the meaning of the federal judiciary laws? (2) If so taken, is there a separable controversy, as required by the removal statute?
1. There have been frequent definitions by the supreme court of a “suit” in the sense of these removal acts, applying it to all proceedings which are strictly judicial, and in which parties are litigating their nights. In Weston v. City of Charleston, 2 Pet. 449, the opinion, by Chief Justice Marshall, holds it applicable to a writ of prohibition, and says:
“The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court oí justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but, if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.”
This definition has been frequently readopted, and made to reach writs of mandamus (Kendall v. U. S., 12 Pet. 524); habeas corpus (Holmes v. Jannison, 14 Pet. 540; Ex parte Milligan, 4 Wall. 2); proceedings for assessment of the value of land taken under the power of eminent domain (Kohl v. U. S., 91 U. S. 367; Boom Co. v. Patterson, 98 U. S. 403; Searl v. School Dist., 124 U. S. 197, 8 Sup. Ct. 460); and like proceedings for condemnation, which include assessment for benefits against other premises (Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113; City of Chicago v. Hutchinson, 11 Biss. 484, 15 Fed. 129).
In each of these cases the proceeding was judicial and adversary. Whether it was strictly judicial in the eminent domain cases was seriously considered, and finally so held, under the distinctions pointed out. In Boom Co. v. Patterson the view was urged before the court that the proceeding to take private property for public use is an exercise by the state of its sovereign right of eminent domain, with which the judiciary department, especially of the United States, had no right to interfere. The court answers:
. “Tliis position is undoubtedly a sound one so far as tbe act of appropriating tbe property is concerned. Tbe right of eminent domain — that is, tbe right to take private property for public use — appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. Tbe clause found in tbe constitutions of tbe several states providing for just compensation for property taken is a mere limitation upon tbe exercise of tbe right. AVhen tbe use is public, tbe necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. * * * But notwithstanding the right is one that appertains to sovereignty, when tbe sovereign power attaches conditions to its exercise, tbe inquiiy whether tbe constitutions have been observed is a proper matter for judicial cognizance.”
The ascertainment of the amount of compensation, therefore, becomes a judicial inquiry when carried to a state court by an appeal from the award of commissioners.
The proceeding here under consideration is of another and different character, — the machinery of taxation, also an attribute of sovereignty. It is an exercise by the city of Chicago of the power vested
I take it, therefore, that this proceeding must be regarded as an exercise of the taxing power, and that any distinction between that and the exercise of the power of eminent domain may be important for answer to this first inquiry. It is stated in Cooley on Taxation (page 430) that the distinction is clear, and the text adopts the following definitions by Ruggles, J., in People v. Brooklyn, 4 N. Y. 419:
“Taxation exacts money or services from individuals as and for their respectivo shares of contribution to any public burden. Private property taken for any public use, by right of eminent domain, Is taken, not as the owner’s share of contribution to a public burden, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in tlu; former, because the payment of taxes is a duty, and creates no obligation to repay otherwise than in the proper application of the tax. Taxation operates upon the community, or upon a class of persons in a community, and by some rule of apportionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals.”
The power of taxation is legislative, and not judicial. Its exercise is not a judicial act, in any ordinary sense, “and it cannot be exercised otherwise than under the authority of the legislature.” Meriweather v. Garrett, 102 U. S. 472; Rees v. Watertown, 19 Wall. 107; Heine v. Commissioners, Id. 655; Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. 651; Cooley, Tax’n, 43. Tire assessment of benefits is governed by the same rule, and is entirely legislative, both as to power and exercise. Some agency must he employed for the apportionment. It may be left to the judgment of assessors or other officers to fix upon view, or he fixed by a definite standard prescribed by the legislature, as to frontage and location. The district within which the tax shall be laid may be left to the judgment of the agency employed for assessment, or may he fixed by the legislature; and, where there is delegation to the agency, it possesses the legislative power for the purpose, and its act is legislative. Cooley, Tax’n, 640; Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. 651.
The legislature of Illinois have, by the act in question, delegated this agency for the assessment to the county court, which, in turn, appoints commissioners to examine and report; but they act as its officers, and under its control and supervision. The county court is constituted the primary instrument for; making the special assessment, and for hearing objections and making final determination, through a jury regularly impaneled. It is possessed of judicial powers, and hearings in these matters are conducted as in other
Because the legislature saw fit to vest this power or duty in the county court, it does not follow that it would be thereby vested in any other court, and certainly not in a federal court, unless it is clearly a judicial power or duty. The language of Mr. Justice Field, in the concurring opinion in Meriweather v. Garrett, 19 Wall. 472, is well applicable here. After stating that taxes are not debts, but imposts levied for support of the government, or for special purposes authorized by it, and the consent of the taxpayer is not necessary to their enforcement, but they operate in invitum, and that the form of the procedure cannot change their character, it is there said:
“The levying of taxes is not a judicial act. It has no element of one. It is a high act of sovereignty, to he performed only by the legislature upon considerations of policy, necessity, and the public welfare. In the distribution of the powers of government in this country into three departments, the power of taxation falls to the legislative. * * * Having the sole power to authorize the tax, it must equally imssess the sole power to imeseribe the means by which the tax shall be collected,, and to designate the officers through whom it shall be enforced.”
In Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, it was beld that an appeal from an assessment of taxes taken under a statute of West Virginia to a tribunal called the “county court” was not a suit, and not removable to the United States court. That case must rule this, unless there is vital distinction in the fact which is noted there, — that the so-called “county court” had no judicial powers except in matters of probate, while here the county court has, aside from this assessment function, full judicial powers. The opinion places stress upon this want of judicial power in the appellate tribunal, and suggests that the proceeding might become a suit if appeal were provided to a court having such powers; but the decision is based upon the conclusion that on appeal, as well as on the assessment, the performance was “an administrative act”; that, as the original assessment could not be called a “suit for removal,” neither was its nature changed by the appeal. The case there was upon an appeal, under an act which adinitted it as a single appeal. This course, if provided by the legislature to a court of complete jurisdiction, would bear strong resemblance to a suit or judicial proceeding,
2. Thus far I have not referred to two important cases, which were strongly urged to maintain jurisdiction here, and should control if applicable to this proceeding, viz. Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, and City of Chicago v. Hutchinson, 11 Biss. 484, 15 Fed. 129. Their consideration comes under the inquiry of separable controversy, and 1ms therefore been left to the second point. In Pacific Railroad Removal Cases there was involved in one of them a proceeding by the city of Kansas “for widening a street' through the depot grounds of the company, and thereby taking a portion of its grounds and the property of many other persons.” Under the statute, a jury had been summoned before the mayor, and assessed the value of the company’s property taken, and benefits against certain other property of the company towards payment of the total damages. The statute gave an appeal to the circuit court of the state, and the company and other dissatisfied persons took separate appeals accordingly. The company obtained removal of its case to the United States court. The decision passes upon several cases for different causes of action so removed by the company, and concludes that the incorporation of the company under the laws of the United States entitles it to removal of each, upon the ground that they are suits “arising under the laws of the United States.” The opinion then answers further objections made in the City of Kansas Case as follows: (1) That it was a suit at law under the rule in Boom Co. v. Patterson, 98 U. S. 403. (2) That the appeal of the company could be tried separately from the others as the issues were distinct, and involved only three points of inquiry: First, the value of the property taken; secondly, the amount of benefits to the remaining properly not taken; and perhaps, thirdly, the right to open a street across the depot grounds. The only difficulty was found in reference to the assessment of benefits, and as to that it says:
“The balance of damages for property taken, after deducting the amount to be paid by the city, is to be divided and assessed pro rata upon those whose property is benefited, in proportion to the benefit to each. But each piece of property taken is valued by itself, without reference to the proposed improvement; and the amount of benefit to each piece of property benefited is ascertained separately, without reference to the other pieces benefited. It is only after this has been done that the aggregate amounts are ascertained, and the damages are assessed pro rata against the pieces of property benefited according to the benefits to each, which is the result of a mere arithmetical calculation, in the state court the jury ascertains and finds all these facts, and reports them in one general verdict.”
The case of City of Chicago v. Hutchinson was decided in this court prior to the Pacific Railroad Removal Cases. It was a similar condemnation proceeding, and entirely in the line of the later decision. It is equally distinguished from the present ease.
I am satisfied that there cannot be independent separate proceedings for this assessment; that this court is without jurisdiction, in whole or in part; and it must remain with the county court, where placed by the statute. An order for remand will be entered accordingly.
5 Sup. Ct. Rep. 1123.