250 F. 24 | 2d Cir. | 1918
(after stating the facts as above).
The only ground for the exercise of such a power is as an incident to the right to set aside the assessment as unconstitutional. This the Supreme Court, in Raymond v. Chicago Union Traction Co., 207 U. S. 20, 28 Sup. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. 757, and Greene v. Louisville & Interurban R. R. Co., 244 U. S. 499, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88, did, holding that an assessment may be reopened, and furthermore that the property may in effect he reassessed, by compelling the plaintiff to consent to a fair assessment
Moreover, in each of the cases cited there were no means provided in the state statute by which the action of the assessors could be judicially reviewed as can be done in New York by certiorari. Now it is true that the Supreme Court mentioned this fact only upon the question of the plaintiff’s right to equitable relief, but we think that the distinction may be taken as going deeper. While there niay be unconstitutional discrimination merely through their administration of a valid statute by officials, the action prohibited by the Fourteenth Amendment must be that of the state, and it cannot be said, at least under ordinary circumstances (Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868), when the state has itself provided means for the correction of just such miscarriages, that the initial action of its officials is its own until the final result has confirmed it and made idle further appeal to the state authorities. Therefore we should be slow, if the receiver or the defendant had indeed based its claim upon the Fourteenth Amendment, to admit any jurisdiction to review an assessment in the face of section 46 of the New York Tax Eaw.
What we have said about the assessment of the special franchises applied equally to the equalization, since under section 45a, subdivisions 1 and 2 (as added by Laws 1911, c. 804), prior to 1916, the state board was itself to equalize the assessment, and the supervisors must enter that sum upon the rolls. As equalizer the state board was as exempt from judicial rqview as it was as assessor. In so far, therefore, as the District Court attempted any review of the special franchise assessments as fixed, and necessarily as equalized, by the state board of tax commissioners, we think that it .exceeded its jurisdiction. This point the county treasurer raised originally, and could certainly raise it here, if his appeal were before us. Upon the receiver’s appeal we think the point is still open, because the question is not one which the consent of the parties can cure; rather it goes to the assertion of a jurisdiction over a subject-matter which under these circumstances the District Court did not and could not exercise.
We may assume that it was open to the District Court to correct any errors upon the face of the rolls, taking the assessments as they stood as to the taxes before 1915, and that the court had jurisdiction to that end. However, aside from the correction of the assessment, the receiver raises no question of the orders of May 8, 1917, except the
In disposing of the cause we must dismiss the receiver’s appeal in respect of those assignments of error which raise matters over which the District Court had no jurisdiction. We can neither affirm nor reverse the orders in these respects, and yet the case is not one under section 5 of the Act of March 3, 1875 (18 Stat. 472, c. 137 [Comp. St. 1916, § 1019]), where we must dismiss the whole proceedings, since the court had jurisdiction to consider the validity of the taxes in some respects. We might, it is true, vacate the injunction and restore the taxes to the original sums upon the assessment rolls; but that we could do only upon the county treasurer’s appeal, which is not before us. In such respects as the District Court had jurisdiction, we affirm the orders.
Therefore we dismiss the receiver’s appeal upon his fourth and fifth assignments of error, and we affirm the orders upon the first, second, third, and sixth assignments of errors. We dismiss the county treasurer’s appeal. The orders of May 8, 1917, will therefore stand, but their effect upon the rights of the parties, in any collateral proceedings in other courts, we do not assume to consider.