Ward v. Alsup

100 Tenn. 619

• Court: Tennessee Supreme Court
• Decided: May 28, 1898
• Status: Published

Opinion

OPINION.

Snodgeass, Ch. J.

These two causes involve, in the main, the same questions, and, by request of counsel, are heard together. They are suits to recover taxes alleged to have been paid under protest. Demurrers were filed in both cases and sustained and the suits dismissed, and appeals prayed to this Court.

In this Court Messrs. E. H. East, Dickinson & Waller, Yertrees & Yertrees, Fentress & Cooper, and Adams & Trimble, reputable attorneys, have intervened as amici curiae, and by petition represent to the Court that the suits are merely colorable, and brought not in good faith, but to obtain the opinion of this Court upon a feigned issue in order to affect and control the determination of other cases of great importance pending in the United States Courts, in which they and their clients are interested, and which involve large amounts and very serious questions. This petition is supported by affidavit. A counter petition, or motion, has been filed, also supported by affidavits, in which the good faith of the suits is insisted upon and the right of the petitioners to intervene is denied. In connection with their petition and affidavit, the intervenors present the questions and authorities hereinafter stated and quoted to establish their right, and to show that though some of them are of infrequent consideration in this Court, they are definitely settled here, as elsewhere.

The first question presented is whether an attorney who is not employed in a cause pending. in this Court has the right to appear in behalf of a client not a party to the suit, or in his own behalf, ás amicus eterice, and to have the Court pass upon the T)ona fides of the suit.

Attorneys are officers of the Court, and it is their function, to see that j ustice is administered according to law. It has been held that it is not only the right but the duty of an attorney, if he knows, or has reason to believe, that the time of the Court is being taken up by the trial of a feigned issue, to inform the Judge thereof, whether of counsel in the case or not. Haley v. Eureka Co. Bank, 12 L. R. A., 815; State v. Wilson, 2 Lea, 210; 2 Enc. Pl. & Prac., 344.

When a suit is brought with the view of affecting the rights of third parties, and it is apparent that this is the sole object, the suit is not adversary, but collusive, and should be dismissed. Haley v. Eureka Co. Bank, 12 L. R. A., 815; Meeker v. Straat, 30 Mo. App., 243. It has also been held that a suit prosecuted for the purpose of obtaining a judgment that may, by way of precedent, affect the rights of third parties, should be dismissed, and is a contempt of Court. Stale v. Wilson, 2 Lea, 210; 2 Enc. Pl. & Prac., 344; Lord v. Veazie, 8 How. (U. S.), 255; Smith v. Junction R. R., 29 Ind., 546; Nevada v. McCullough, 20 Nev., 154; Brewster v. Ketchum, Comb., 425; People v. Tyler, 30 Cal., 223; Fletcher v. Peck, 6 Cranch, 147.

It is. essential that the object of every action be to settle a real controversy existing between the parties. If it appear that such is not the object, the action will be regarded as fictitious, and will be dismissed by the Court, and the bringing, of a fictitious suit may be punished as a contempt of Court. 9 Enc. PI. & Prac.,.720, and cases there cited.

In Lord v. Veazie, 8 How., 225, Taney, Chief Justice, speaking for the Supreme Court of the United States, said, among other things: “In order that a suit be dona fide, and not fictitious, there must be an actual controvex-sy and adverse interests.” In that case, the Court held the objection to the action was not that it was amicable, but that there was no real conflict of interests; that the plaintiff and defendant had the same interest adverse to, and in conflict with, the interests of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both parties to the suit desired it to be decided. See, also, to the same effect: In re Elsam, 3 Barn. & Cress., 597; Fletcher v. Peck, 6 Cranch, 147; Cleveland v. Chamberlain, 1 Black, 419; Smith v. Junction R. R. Co., 29 Ind., 546; Berks Co. v. Jones, 21 Pa. St., 416; Haley v. Bank, 12 L. R. A., 815; 2 Enc. Pl. & Prac., 344; Hasket v. State, 51 Ind., 176. The subject is reviewed at length, and cases collated and commented on, in Haley v. Eureka County Bank, 12 L. R. A., 815 et seq.

It is not sufficient that the parties be real and not -fictitious, but the controversy must be real and not pro forma, nor is it sufficient that the facts exist as they are set out in the action; nor that the complainant has a cause of action, but beyond these, the question arises, Is the suit prosecuted to redress the grievance of the plaintiff, or to affect third persons, who may be interested in the same question already pending in another suit, and which is the primary and real object of the proceeding? If the latter, the suit should be dismissed. Courts cannot be used for the purpose of deciding even real questions in pro forma suits, especially when the object and purpose is to affect important litigation between other parties. If so, the most complicated and difficult questions of law, and the constitutionality of statutes might be settled by the Court upon such pro forma proceedings, .when no real controversy or adverse interests exist, and no proper examination of the important questions is made by counsel or the Court.

It has been uniformly held by this Court that an appeal from a judgment or decree rendered pro forma in the Court below will be' dismissed by this Court, and this when the parties and controversy are real and the pro forma decree is entered in order to have this Court pass upon the question of law involved. Reed v. Robb, 4 Yer., 66; State v. Wilson, 2 Lea, 210; Mayo v. Dickens, 6 Yer., 490; Mem. Frt. Co. v. Mayor, 3 Cold., 249.

The principles here laid down are universally recognized and enforced in all Courts and jurisdictions, and ' the proper practice and duty of the appellate Court is plainly pointed out in a number of cases. See the entire subject treated and cases collated in 2 Enel. FI. and Pr., pp. 342, 343, 344.

There is nothing in this rule which prevents the bringing and trial of agreed cases under the provisions of the statute. Shannon, §§ 5206-5210, and 6330. Indeed, that practice, within proper limits, is to be commended and encouraged. But it has been held that an agreed case, prepared without real litigation, is a fraud upon the Court, and a contempt on the part of those implicated. State v. Wilson, 2 Lea, 210.

When a decree was entered pro forma -in the Court below, by agreement, from which an appeal was taken, it was held to be not an agreed case, and the .Supreme Court had no jurisdiction of the appeal. Reed v. Robb, 4 Yer., 67.

There is a vast difference between an agreed case to settle a matter of real controversy between the parties, and a simulated suit between parties • having no adverse interests, and only interested in having a judicial holding, in order that it may be controlling-in another suit already commenced, where there is real litigation.

Conceding these to be the rules when proper cases are presented, the question recurs, How are we to determine whether these suits are in good faith or merely pro forma, and intended for some other purpose? We have a petition supported by affidavit that the suits are fro forma, and merely with the purpose of affecting other suits, and that such is the primary object. On the other hand, it is denied by answer and affidavits that such is the case.

It has been held that a suit may be shown to be fictitious by the record, or by evidence aliunde, or both. 2 Enc. Pl. & Pr., 344; Haley v. Eureka County Bank, 12 L. R. A., 815. Or upon affidavits of third persons. Smith v. Junction Ry. Co., 29 Ind., 546; Cleveland v. Chamlerlain, 1 Black, 419; Lord v. Veazie, 8 How. (U. S. Sup. Ct.), 225. Or the case may be referred to the Clerk for proof. In re Elsam, 3 Barn. & Cress., 597; Sage v. Swenson, U. S. Sup. Ct., MSS. Opinion.

Where a sharp issue is presented to this Court, by reputable attorneys on both sides, as to whether or not suits are brought in good faith, or for an ulterior purpose of affecting pending litigation between other parties, this Court would not proceed to a hearing of the merits, until the preliminary question is fully investigated and determined. In the present cases, however, we need not determine whether the intervenors have made out their contention, nor need we proceed any further with the investigation, inasmuch as we find that the issues are not presented in. the records in such manner as to warrant the Court in passing upon the many questions supposed to be raised, and upon which the opinion of the Court is sought. Both of these cases are purely legal actions under the statute, and' though one of them is brought in the Chancery Court, no equitable questions are involved. In neither of them is there any allegation that the plaintiff or complainant has pursued the provision of the statute for correcting unequal and excessive assessments by going before the .Board of Equalization of his County, and making complaints to such board before paying his taxes, which we consider an indispensable prerequisite to the bringing of any merely legal action to recover back taxes, paid under protest, conceding the litigation to be real and bona fide.

By the Act of 1895, Ch. 120, Sec. 50, the powers and duties of the County Board of Equalizers are set out and defined, and it is made the duty of that board, among other things, to examine, compare and equalize assessments, to hear and adjust complaints from any party feeling aggrieved on account of such assessments, and to correct all errors, when in its judgment, justice demands it, etc. Shannon, Sec. 802.

By the same Act, Sec. 62 (Shannon, § 807), the State Board of Equalizers were required to proceed to the equalization of the aggregate value of real property of the various counties, and lower or raise ^assessments as they may deem proper.

It will thus be seen that plaintiffs had the remedy of an equalizing board, before whom their complaints could be, and, certainly, in the absence of any equitable reasons in avoidance, should have been, made, and this board had ample power to pass ñpon and rectify their individual grievances. There is nothing in the record to show that any application or complaint was made to the board, or that either of the plaintiffs ever went before the board.

It has been held, that when, by a valid statute, a Board of Assessors or Equalizers is created with power to act, a taxpayer who fails to make - application to such board for relief, when it has power to act, cannot pay under protest and then recover back the tax in an action for that purpose. It is said to be everywhere a settled rule that application must be made to the statutory tribunal provided for that purpose, if one is provided, before any legal action is taken to recover back the tax. Stanley v. Supervisors, 105 U. S., 305; Stanley v. Supervisors, 121 U. S., 549; Price v. Kramer, 4 Col., 546; Van Nort’s Appeal, 121 Pa. St., 113; State v. Wright, 4 Nev., 251; First National Bank v. St. Joseph, 46 Mich., 530; Felsenthal v. Johnson, 104 Ill., 21; People v. Lots in Ashley, 122 Ill., 297; Boorman v. Juneau Co., 76 Wis., 550; Buttenuth v. St. Louis Bridge Co., 5 Am. St. Rep., 546; Shattuck v. New Orleans, 39 La. Ann., 206; Leeds v. Hardy, 43 La. Ann., 810; People v. Duguld, 68 Hun, 243; Johnson Co. v. Searight Cuttle Co., 3 Wyo., 777; Caledonia v. Rose, 94 Mich., 216; 25 Am. & Eng. Enc. L., 242, 453 et seg.

The rule is tersely stated in 25 Am. & Eng. Enc. L., pp. 241-244, as follows: “When provision is made for an application to a Board of Equalization or Review for the correction of errors in an assessment, such remedy is exclusive, and a taxpayer failing to avail himself thereof, within the time prescribed, cannot prevent the collection of a tax for any cause for which he might have had an abatement; but this rule does not apply when the tax is illegal by reason of want of power to levy or assess, nor where the assessment is fraudulent.” (Page 244, note 1.)

In this case there is no allegation that the Assessors did not have the power to .make the assessment, and none that it was fraudulently made, but the latter feature is expressly disclaimed, and the complaint is as to the manner in which the assessment is made and the amount. It is held that an effort to correct an alleged error in the assessment,while the matter is in control of the board, is essential to relief in the Courts. Shattuck v. New Orleans, 39 La. Ann., 206; Leeds v. Hardy, 43 La. Ann., 810.

Also, a failure to appear before the Board of Assessors on grievance day has been held such laches as to deprive one of his remedy by certiorari. People v. Duguld, 68 Hun (N. Y.), 243.

Again, a suit to recover back taxes is defeated by showing ■ that objection to the overassessment complained of was not made before the Board of Equalization. Johnson Co. v. Searight Cattle Co., 3 Wyo., 777.

So, also, a taxpayer who fails to appear at the time and place appointed cannot afterwards assail the assessment. Caledonia v. Rose, 94 Mich., 216; Smith v. Marshalltown, 53 N. W. R., 286.

In Michigan Savings Bank v. City of Detroit, 107 Mich., 246 et seq., it was held that boards of review are .the proper tribunals for the correction of unjust assessments, and parties will not be heard in the Courts until they have exhausted their remedies before these tribunals. The text books lay down the same doctrine.

Mr. Cooley, in his work on Taxation, says: “The statutory remedy (for equalization) is supposed to be adequate to all the requirements of justice, and it is the party’s own folly if he fails to avail himself of it.” Cooley on Taxation, p. 529; Weaver v. State, 39 Ala., 535. Suit will not lie at law for the levy of an irregular or excessive assessment which might be corrected on review or appeal. Wright v. Boston, 9 Cush., 233; Bourne v. Boston, 2 Gray, 494; Commonwealth v. Cary, 98 Mass., 19, cited in notes to Cooley on Taxation, p. 529.

The general subject of correction of illegal, excessive, and improper assessments is considered by Mr. Desty in his work on Taxation, Yol. 2, pages 625-627, also pages 654, 661. It will be seen that much depends upon the statutes ' of the State, and the means and modes of correction provided, but the general principle is, that when a tribunal and mode is provided, that must be availed of before the tax-, payer can have ordinary relief at law.

In summing up, he says: “As a general rule, for a mere irregularity the statutory remedy is exclusive, and the party must avail himself of it or suffer the consequences of his neglect, and, if he does not have his assessment corrected and perfected when he has power to do so, he is assumed to admit its correctness, and the Court may, in its discretion, refuse to aid him, and, when the assessment is not fraudulent, he loses all remedy.”

It is proper to remark again that in this case fraudulent conduct in the Assessors is not only not charged, but expressly disclaimed. , See, also, the cases cited by the author in support of his text.

Again the same author says : ‘‘ When a person claims that the assessment of taxes was excessive, but failed to apply to the Board of Appeals to have the error corrected, and no excuse is given for his failure to apply at the proper time, the Courts cannot interfere to stay the collection of the tax.” 2 Desty on Taxation, 654, and cases cited.

And again, at page 662: “If a taxpayer, by failing to pursue a remedy for the correction of irregularities in the assessment and levy of taxes, waives or loses his right to resist the collection of the taxes, the exaction of payment by the Treasurer is not illegal or erroneous. If that remedy is not pursued, the tax may be collected. If he does not have his assessment corrected and reviewed when in his power to do so, it is an admission of its correctness. He must proceed in the manner prescribed by statute.”

It is true the Tennessee statute gives the taxpayer a remedy by paying under protest, if he conceives his taxation to be illegal, unjust, or excessive, or against any statute or clause of the Constitution, and then by suing the collector to recover back the amount thus unjustly exacted, but this clearly contemplates that the taxpayer must, in case of irregular, improper, or excessive assessments, made by the proper officials, have made complaint before the board appointed by the statute to hear such complaint and to inquire into the assessment and the manner in which it is made, and whether it is or is not excessive. The County Trustee has no power to do this, but only to collect such taxes as come to him already assessed, except in certain cases of omitted property, etc.

If a party contemplates questioning the entire system of assessments or the special assessment of his own property, by the statutory action to recover amount demanded from him, he must put himself in position so to do by lodging his complaint, first, with the board appointed to hear such complaints under the law, and in the time provided by statute. The statute which provides that the taxpayer must pay his taxes under protest and then sue to recover them back, and that this remedy should be exclusive, was intended to prevent the tying up of taxes by injunction and other process, so that the State’s revenue might not be tied up with litigation, but the theory was that if the assessment had reached such a stage that the tax was levied ,and collectible, the taxpayer then should pay and take his remedy to recover back. But in order to have this remedy, in the absence of fraud or other ground of equitable intervention, he must have availed himself of such provisions of the statute as would have corrected the injustice complained of before the tax was levied and made collectible.

Inasmuch as neither of the parties complaining in these causes alleges that he has ever gone before any Board of Equalization and sought to have his assessment rectified because of its alleged illegality, or inequality or excessiveness, neither occupy such an attitude as to raise the important questions relating to the assessments presented by them and supposed to -be Involved, and upon which the action of the .Court is sought, and whether the suits are real or only simulated, whether bona fide or brought with an ulterior purpose, they cannot be considered upon the merits of the questions presented, and, without going further with the investigation of the manner in which, and the purpose for which they were brought, the judgment in one and the decree in the other must be affirmed, and the cases must be dismissed because of the failure of complainants to resort to the plain preliminary remedy provided by the law to have assessments corrected.

The suits are therefore dismissed, at cost of appellants.