CALIFORNIA

'.t. O. LAND CO.

V;

GOWEN.

771

MCCRARY, 1,.1. A proceeding for contempt is in the nature of a criminal proceeding, and to be governed by the strict rules of construetionWhich prevail in 'crimln"aLcases. Its purpose is not to atr:ord a ,remedy to the party complaining, and who may have been injured,.bythe acts complained of. That-remedy must be sbught in another way. Its purpose is to the authority and dignity of the court. Haight v. Lucm, 36 Wis. 855. 2. We cannot hold that the complainant has subjected himself to this summary criminal proceeding by taking ore from the mine in dispute. Strictly speaking, the writ ofinjunction did not restrain the complainant from so doing. Its only effect was to restrain the defendant, and to subject its agents to punishment in case of a violation of the order. The injunction did not by its terms, or of its own force, forbid the complainant to interfere with the possession of the mine pending the suit, and therefore he cannot be held to anlilwer in this proceeding. It does not follow, however; that a complainant, in such a case as the present, can with impunity do the acts which, at his instance, the defendant has been resttained from doing. Where, as in this case, the evident purpose of the writ is to preserve the existing status of property in litigation until a final adjudicating can be had, it is a gross abuse of the process of thecburt for the complainant to disregard his own injunction, after having by means thereof' tied the hands of his adversary; and no doubt the court has ample power to prevent or redress such abuse. In this case the court did redress it, by ordering the complainant to restore the property to defendant, and to abstain from any further interJerence with the possession thereof pending the suit. If defendant had desired and asked a dissolution of the injunction, the court Dlight have granted it, on the ground that complainant was no longer entitled to the exercise of the discretionary power of the court for his protection. See remarks of LYON, J., on the point, in Haighi v. Lucia, tuFa. Motion denied.

H.A!.LE'1'T, J., concu1'8.

CALIFORNIA

& O.

LAND

Co.

t7. GoWEN,

Sheriff'.

(Oircwtt Oourt, D. Oregon. January 4, 1892.)

L

ILLEGAL ASSB88MBNT, WHEN TAX LEVIED ON KAY BE ENJOINED.

Where an assessor assessed alarge body of lands belonging to the plaintiff, of vari. ous values, at a uniform value, without reference to the local advantages of the various parts of the tract or tracts, and beyond the cash valne of the whole, and relatively at a much greater value than the lands of resident tax-payers, for the purpose of favoring the latter at the expense of the former, equity will restrain the collection of a tax levied upon such an assessment, when it further appears that the collection of the tax will cast a cloud upon the title of the plaintiff, and involve the party in a mUltiplicity of suits. .

772
9.

FEDERAL REPORTER,

vol. 48.

BOARI> OF EQUALIZATION.,

The board of equalization is a part of the machinery for the assessment of property for taJl;ation,and a person, by asking it to reduce an alleged overvaluation of his property, does not thereby elect to pursue a remedy at law for such overvaluation, or an iHegal or fraudulent assessment, if it be such.

8. THE WRITOll' RB\l'IEw.

A writ of review directed to the b,oard of eqUalization is the commencement of proceedings at law to correct such assessment, on which the circuit court examines the record of the boatd, the faots found, if any, and determines, without reference to the evidence, whether, as a matter of law, tl;1eboarli has exceeded its jurisdiction, or eltercised its functions erroneously,to the injury of the substantial rights pf the plaintiff therein. ' " (SyUabus by the Oourt.)

In Equity.

Suit for an injunction.

Mr. Charles B. Bellinger, for plaintiff. Mr.. ]V. B. Knight, forderendant. '
This is brought by the, California & Oregon Land Compllny, a corporation formed under the laws of California, to have E. W. Gowen, the sheriff of Klamath county, Or., enjoined from selling certain ,lands of the plaintiffs for aI!.egefl, delinquent taxes. It is alleged, in the bill that the plaintiff is the owner of 185,902 acres ofland, situate in said COUnty, and particularly described therein; that in thej,ear 1890 the aSSessor of the,county made an assessment of said lands at the valuation of $1 per acre, although the same were of widely different and some of them only nominal valuej that said assessmentexceed,s the agp:regatecash value of said lands, while all other assessments. of Jand in, said,cpunty were, made at not to exceed one-half their cash value; that thereafter the plaintiff appeared before, the board of equalization of said county, and asked, to have said assessment reduced, but. so to do; thatsaid arbitrary classification and eessment said lands at relatively much beyond the aSsessment of othel property)n l3ll.id county, their actupJ value, is for the purpose; as plaintifl' believes',' of relieving resident from. their proportion of the taxes; that plaintiff has been 'at all times ready and willing to pay its just proportion of taxes which .comprise all its taxable property in said county, and on March 25, 1891, did tender and pay to the defendant the sum of $1,487.21, which sum he credited as part payment Of said taxes. That in April, 1891, the defendant made a return of delinquent taxes, anyq.eseripri<m ofreal property upon which taxes which did remained un})l:tid, as required by seCtion 2809 of Hill's Laws of Oregon, there any assessment roll ,annexed thereto, or at all, nor as stated in said return, but said return simply contained a statement in gross of the amount of taxes collected and uncollected, without the name ofa delinquent or the mention of a tract of land on which the tax was not paid; that thereupon,on April 16, 1891, the county court of said ?otmty, withcmt any or further beirig made by said sheriff, lssued a pretended warrant commaudmg him to collect the taxes mentioned in -the foregoing delinquent' which, so far did

CALIFORNIA &: O. LAND 00. II. GOWEN.

773

not exist, and on August 8, 1891, the defendant by virtue of such warrant pretended to levy upon certain of the lands so assessed as aforesaid, and has advertised the same for sale to satisfy a delinquent tax of $2,275.30, with costs; that the tax actually levied upon said advertised londs amounts to the sum of $99, and said lands are worth more than $2,000, and the tax claimed to be delinquent in the sum of $2,230.83; and that unless restrained by the order of this court the defendant wm pr(}. ceed to sell the lands levied on, and make deeds to the purchasers thereof, which will constitute a cloud on plaintiff's title, and involve it in a multiplicityof suits in respect thereto. The defendant interposed a demurrer to the bill, and after argument the court, on November 16th, overruled the same, and aJIowed a provisional injunction. On 'motion of the defendant the case was reheard on December 28th. By section 2815 of the Compilation of ",,,87, a warrant for the collection of taxes is made an execution against property, and "shall be· executed and returned in like manner." The following section authorizes such warrflnt to be levied on any real property, or sufficient thereof, of :thepersonagainst whom the tax is charged. This explains the of the sheriff in levying upon only a portion of the premises to s; the tax against the whole. On the argument it was admitted by counsel for the defendant that upon the statements of the bill as to the manner and purpose of making the assessment, coupled with the allegation as to the multiplicity ,ofsuits and clouds on title, the plaintiff is entitled to an injunction to restrain the collection of the tax as illegal and fraudulent; and of this there can be no doubt. Section 2752 of the Compilation of 1887 provides that lands and town lots shall ,be valtled by the assessor "at their true cash value, taking into consideration the improvements on the land and the surrounding coun:. try, the quality of soil, the convenience of transportation lines, public roads, mills. and otherlocal ad ,,·antages." An assessment willflillvUlade in disregard of these requirements, and for the purpose of imposi;g updfl the owner of the property more than his just proportion of the public burden, is fraudulent and illegal. Her8ey v. Board, 37 Wis. 75; Merrill v. Humphrey, 24 Mich. 170; Railway Co. v. Cole, 75 Ill. 591; Dundee v. ParriBh, 11 Sawy. 92, 24 Fed. Rep. 197; Balfour v. Portland, 12 Sawy. 122, 28 Fed. Rep. 738. The Michigan case was one very like this. It was alleged in the bill and admitted by demurrer that the supervisors had assessed the lands of the plaintiff "above their value, and relatively very much beyond the assessment of other property, for the purpose of relieving resident tax-payers from their proportion of the taxes." The plaintiff professed to be willing to pay his just proportion of taxes, but had not. paid or tendered any proportion of them; and for this reason theinjunction was denied, but the bill dismissed without prejudice. But on the main question Mr. Justice COOLEY, in delivering the opinion of the court, laid. down the law in such cases as follows:

774

FEDERAL

vol. 48..

After that the sit in judgment upon the supposed err{)l'S Qf the assesl!or, apd: IJ.Upstitutetheir opinions for his, he says: "But it remains to be seen whether what is sought here is a review of the judgment. The charge is that the several supervisors have purposely assessed the property of its value, and above the as,sessment of other fraudulent i.ntent to compel the payment by him of an undue proportion oitlle pUblic taxes. * * * It is admitted that the supervisors bave not broug,ht their judgment to bear upon the questioD' of values, but have set aside arid disregl1rded their duty for the express purpose of perpetrating,a wi-oug utionan individual. "The question, then, is this: A public officer being empowered by law to apportion certain burdens among the asin his judgment shall be just, being actuated by a fraudulent purpose, instead oX obeying the law, disregards its mandate. declines to bring his jqtlgment to bp,ar upon the question subnUtted to him, and arbitrarily, and With express refprence to defeating the ends at which the law aims, determines to impose an excessive burden upon a particular citizen. Has this citizen any remedy against the thrll8tened wrong? "We think this question can admit of but one answer. A discretionary power ('annot excuse an officer fQr refusal to exercise his discretion. His jUdgment is appealed to; not hisrfsent.ments, his cupidity, or his malice. He is the instrument of law to accomplish a particular end through specified mellns; and when he pUl'posely stl'PS aside from his duty to inflict a wanton injury, the confidence reposed in him has not disarmed the Jaw of the means of prevention. His juuRment may, indeed. be final, if he shall exercise it; but an arLitrary and capricious e)l:ertion of official authority, being without law, and done to defeat purpose of the law, must, like all other wrongs, be subject to the law's correction." It is also admitted that equity will not enjoin the collection of a tax merely because it is illegal. In addition to this. it must appear that the case falls within some recognized head of equity jurisdiction, as that the enforcement of the tax would lead to a multiplicity of suits, or cast a cloud upon the title of the plaintiff. DOW8 v. Chicago, 11 Wall.HOj State Railway Taz Cages, 92 U. S. 614. it is admitted on the showing in the bill· that the tax is illegal by reason of the manner and purpose of the asse8sment, and it enforced it will cast a cloud upon the title of the plaintiff, and involve it in a multiplicity of suits. Therefore he ought to have relief by injunction from this court. But the defendant contends, and this was the burden of his counsel's argument on the rehearing, that the plaintiff, by going before the board of equalization, aud asking it to correct the assessment, has elected to pursue his remedy at law, and is thereby precluded from resorting to It court of equity, and is driven to a writ of review to correct the action of the board of equalization. In support of this position he cites Railway Co. v. Hodges, 113 Ill. 323j , Bank v. Board, 25 N.. Y. 312j Railway Co. v. Board, 48 N. Y.513. I have eXllmined these Cases carefully, and find them not in point. By section 2778 of the Compilation of 1887, the county judge, county clerk, and assessor are made a board of equalization to correct assessments, and increase or reduce the valuation ofproperty assessed.

CALIFORNIA & O. LAND CO. II. GOWEN.

775

In my judgment, this board is merely a part of the machinery of assessment. No relief can be had against a mere overvaluation of property incident to the infirmity of human judgment, except by an appeal to it. In the case of an illegal assessment, relief may be had in equity without resorting to the board. Balfour v. Portland, 12 Sawy. 124, 28 Fed. Rep. 738. But the party aggrieved in such case may present his case to the board, without forfeiting his right to go into equity. An appeal to this boarq is in no sense an election to pursue a remedy at law. It is merely the last act in the matter of the assessment. Whoever is dissatisfied with the action of this board in the matter of his assessment may consider whether he will bave bis action reviewed on a writ of review from tbe cireuit court, or seek relief in equity; but, wbichever course be elects to p11rsue, tbat be is bound by. If the judgment of the court of law is adverse, be cannot fall back on equity. A writ of review, under the Code, is the equivalent of tbe common-law writ of certiorari. Tbe latter is defined as "a writ issuing from a superior court to an inferior court, tribunal, or officer exercising judicial powers, whose proceedings are summary or in a course different from tbe common law,c.ommanding tbe latter to return the records of a cause depending before it to tbe superior court." 3 Amer. & Eng. Ene. Law, 60. Tbe writ of review issues from the circuit, court to an inferior court, officer, or tribunal in the exercise of judicial functions, wbere the same appears to have exercised such functions "erroneously, or to have exceeded its jurisdiction, to the injury of some substantial rigbt of tbe plaintiff." Compo Laws 1887, § 585. The supreme court of tbe state bas decided that the board of equalization was a tribunal to whom this writ might issue. Popplef..t:nt, v. Yamhill 00., 8 Or. 337. Tbe return to the writ must not include the evidence, and if it does tbe court will not consider it. The facts found by the inferiortribunlll constitute the return upon which the court aots in determining whether such tribunal exceeded its jurisdiction, or exercised its functions erroneously, to the injury of the plaintiff in the writ. Road Co. v. Douglas 00., 6 Or. 308; Poppleton v.Yamhill Co., 8 Or. 337. In this case the writ of review would not furnish the plaintiff any remedy for this illegal assessment. The board undoubtedly had jurisdiction to examine the assessment, and, regardless of the alleged motives which prompted it, to increase, diminish, or affirm it, as it thought proper. By refnsing to reduce the assessment, it practically affirmed it. Its finding of fact, if any, would be that the assessment was according to the true valuation of the property; and with such a return the circuit court would be bound to affirm its action. There would be nothing else to do. The 'circuit court cannot substitute its judgment for that of the assessor, or the board of equalization, as to what is the assessable value of property. Its power is confined to questions of law that arise on the face of the return. It is absurd to suppose that, because the plaintiff asked the board of equalization to reduce its assessment, it was thereby irrevocably committed to'such at'ruitless remedy at law as the writ of review.

?76

fEDERAL REPORTER,

vol. 48.

'. The plaintiff is entitled to have this injunction m!j.intained to protect his nroperty from the imposition of a tax levied upon an and fraudulellt assessment, and attempted to be collected on a void proceas.

RoLLINS INvEsTMENT

Co· ..,.

GEORGE

e£ ale

(CtrcuU COUrt, D. Oregon.

December 28, 1891.)

L

b E BBIDGBComnTTRB.

The bridge committee of the city of Portland ill · mere agency of the city, for whose acts, done within the'sphere of their authority, the city ill liable; and therefore the city is,a. necessary and proper party to a suit for the specific performauc',e of a contract, ILileged to have been made with said committee for the sale &Ild Ci8livery of certain city bonds. '

·...

.. BPBCIIl'IO PERli'ORMANClil·

I. CoNTRACT, WHAT CONSTITUTES.,

.A. contract for the sale and delivery Of, certain bonds of the city of l'ortland ill not such a cohtract as a court of equity wlll specifically enforce, for the damages Which may be recovered man action at law for the non-delivery will compensllte .' for the same.

.

"A statute authorized the Lrldge committee of the city of Portland to sell and deliver its bondl! tor the purJlose of building bridges across the Willamette, and the act required that the chairman of the committee should execute all written contracts on b.eh.altt.here.of. HeW. ;tha,t apr.oPOSal:in writing to purchase said b.onds,.and a entereq in ,its minutes, t!le same, constitute, resolution by the · written contract within the meaning of the and 1& Incomplete and invalid unless executed by the c h a i r m a n . '

.

·

(ByU,abuBOlI.the CO'lIn't.)

In Equity. Suit for the specific performance of a contract of sale of bonds, ,brought by the. Rollins Investment Company against M. George, EkA. King, J. L. Sperry"C. H. Meussdorffer, William M·. Ladd, John J>arker, C. C. Redman. and T. W. constituting tlle bridge committee of the city of :Portland, Or. Heard on demurrer to the bill. . Demurrer s?stained. lIfr. o.. /!,. Paxton. for plaintiff. ,Mr. William T. Muir. for defendants.
DEADY, J. This8uitis brought by the Rollins Investment Company, acoporation .formed under the laws ·of Colorado, to specifically enforce an alleged contract by which. it claims .to have purchased from the defendants $500,000 worth of bridge bonds of $e city of J>ortland, and for a temporary injunction to restrain the defendants, in the mean from otherwise disppsing of said bonds. On the filing of the bill an order was made requiring the defendants to .show caus.e why such an injunction should not issue, and in the mean time restraining them as prayed for in the bill. . . Tpe d(;lt'elldants committe.eof eight persons, created by the act of February 18, 1891. commonly called "The Meusdorffer Act." The lWtauthorizes the cities. of Portland, East Portland, and Albina to prov,i¢le !\lna or. mQfe suitable bridges the Willamette, through the, agency of ,eight ;p\lrsops appointed, from the.. of