§ 47. Tax and assessment proceedings are not suits, and therefore are not removable; but a proceeding in a court to enforce a tax or municipal assessment is a suit.-A proceeding to fix the value of property for the purpose of

Bausman v. Denny, 73 Fed. 69; Lumley . Wabash Ry. Co., 71 Fed. 21; s. c., 43 U. S. App. 476, 22 C. C. A. 60, 76 Fed. 66;

Pullman's Palace-Car Co. v. Washburn, 66 Fed. 790 (affirmed on opinion below, Washburn v. Pullman's Palace-Car Co., 33 U. S. App. 628, 21 C. C. A. 598, 76 Fed. 1005); McBee v. Marietta & N. G. Co., 48 Fed. 243;

Rep. U. S. Cts. 111, 10 Int. Rev.
Rec. 54, 1 Chi. Leg. News 363, 11
Int. Rev. Rec. 12;

Seymour v. Phillips & Colby
Const. Co., 21 Fed. Cas. 1131, 7 Biss.
460, 22 Int. Rev. Rec. 234, 8 Chi.
Leg. News 329.

The following were held to be original suits, some of them growR.ing out of prior actions in Federal Courts and others out of cases in State courts:

Rosenbaum v. Council Bluffs Ins. Co., 37 Fed. 724, 3 L. R. A. 189;

Abraham v. North German Fire Ins. Co., 37 Fed. 731, 3 L. R. A. 188;

Foster v. Mansfield, C. & L. M. R. Co., 36 Fed. 627;

First Nat. Bank v. Salem Cap. F. M. Co., 31 Fed. 580, 12 Sawy. 485; Osborne v. Barge, 30 Fed. 805; Thompson v. McReynolds, 29 Fed. 657;

Cortes Co. v. Thannhauser, 9 Fed. 226, 20 Blatchf. 59;

Bobyshall v. Oppenheimer, 3 Fed. Cas. 788, 4 Wash. C. C. 482; Dunlap v. Stetson, 8 Fed. Cas. 75, 4 Mason 349;

Robb v. Vos, 155 U. S. 13, 15 Sup. Ct. 4, 39 L. 52; s. c., 36 Fed. 132;

Arrowsmith v. Gleason, 129 U.S. 86, 9 Sup. Ct. 237, 32 L. 630;

Johnson v. Waters, 111 U. S. 640, 4 Sup. Ct. 619, 28 L. 547;

McNeil v. McNeil, 78 Fed. 834
Davenport v. Moore, 74 Fed. 945,
Ralston v. Sharon, 51 Fed. 702;
Daniels v. Benedict, 50 Fed. 347;
Young v. Sigler, 18 Fed. 182;
Yeatman v. Bradford, 44 Fed.

536;

United States v. Norsch, 42 Fed.

417;

Newton v. Joslin, 30 Fed. 891;
Sohlgard . Kennedy, 2 Fed. 295,

Hatch v. Dorr, 11 Fed. Cas. 805, 1 McCr. 291; 4 McLean 112;

Osborn v. Michigan Air Line R. Co., 18 Fed. Cas. 844, 2 Flip. 503, 25 Int. Rev. Rec. 250, 8 Reporter 296, 11 Chi. Leg. News 367, 4 Cin. Law Bul. 553;

In re Sabin, 21 Fed. Cas. 120, 18 N. B. R. 151, 10 Chi. Leg. News 364, 3 Cin. Law Bul. 625;

Clark v. Hackett, 5 Fed. Cas. 874, 1 Cliff. 269 (affirmed without discussing question of jurisdiction, s. c., 1 Black 77, 17 L. 69);

Conwell v. Whitewater Valley Canal Co., 6 Fed. Cas. 372, 4 Biss. 195;

Williams v. Byrne, 29 Fed. Cas. 1361, Hempst. 472.

St. Luke's Hospital v. Barclay, Where a proceeding is, in its na21 Fed. Cas. 212, 3 Blatchf. 259; ture, ancillary to a suit in a United Schenck v. Peay, 21 Fed. Cas. States Circuit Court, but the bill is 667, Woolw. 175, 2 Am. Law T., technically an original one, requír

original suit, and what is an ancillary or dependent proceeding, whether it be in a State court or in a Federal Court. But the decided cases exhibit a (perhaps unconscious) tendency of Federal Judges to amplify their jurisdiction by treating suits as ancillary which grow out of litigation in a Federal Court that would be considered original suits if growing out of litigation in a State court.2

2 Cases in which proceedings in Federal Courts were held to be ancillary to other suits therein, may be consulted with profit (but some of them should not be too closely followed) in determining whether any proceeding in a State court is a suit, or merely an incident of a suit.

Carey v. Houston & Tex. Cent. R. Co., 161 U. S. 115, 16 Sup. Ct. 537, 40 L. 638; same case below, 52 Fed. 671;

White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. 67, answering questions certified, same case, 31 U. S. App. 178, 13 C. C. A. 276, 66 Fed. 2;

Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136, 37 L. 1123;

Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. 689;

Andrews v. Wall, 3 How. 568, 11 L. 729;

Aldrich v. Campbell, 38 C. C. A. 347, 97 Fed. 663;

National Bank v. Allen, 61 U. S. App. 102, 33 C. C. A. 169, 90 Fed. 545;

Hill v. Kuhlman, 59 U. S. App. 82, 31 C. C. A. 87, 87 Fed. 498;

Bradshaw v. Miners' Bank, 53 U. S. App. 399, 26 C. C. A. 673, 81 Fed. 902;

Peck v. Elliott, 47 U. S. App. 605, 24 C. C. A. 425, 79 Fed. 10, 38 L. R. A. 616;

Compton v. Jesup, 31 U. S. App. 486, 15 C. C. A. 397, 68 Fed. 263;

Central Trust Co. v. Bridges, 16 U. S. App. 115, 6 C. C. A. 539, 57 Fed. 753;

Lamb v. Ewing, 12 U. S. App. 11,

Lacassagne v. Chapuis, 144 U. S. 4 C. C. A. 320, 54 Fed. 269; 119, 12 Sup. Ct. 659, 36 L. 368;

Morgan's Louisiana & Tex. R. & S. Co. v. Texas Cent. R. Co., 137 U. S. 171, 11 Sup. Ct. 61, 34 L. 625; | Terry v. Sharon, 131 U. S. 40, 9 Sup. Ct. 705, 33 L. 94;

Johnson v. Christian, 125 U. S. 642, 8 Sup. Ct. 1135, 31 L. 820;

Dewey v. West Fairmount Gas Coal Co., 123 U. S. 329, 8 Sup. Ct. 148, 31 L. 179;

Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. 145;

Jones v. Andrews, 10 Wall. 327, 19 L. 935;

Whyte v. Gibbes, 20 How. 541, 15 L. 1016;

Jenks v. Brewster, 96 Fed. 625; Bowman v. Harris, 95 Fed. 917; Metropolitan Trust Co. v. Columbus, S. & H. R. Co., 93 Fed. 689; Widaman v. Hubbard, 88 Fed.

806;

Ledoux v. La Bee, 83 Fed. 761; Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. 642; McDonald v. Seligman, 81 Fed.

753;

Fish v. Ogdensburg & L. C. R. Co., 79 Fed. 131;

Maitland v. Gibson, 79 Fed. 136; Lanning v. Osborne, 79 Fed. 657; Wonderly v. La Fayette County, 77 Fed. 665;

§ 47. Tax and assessment proceedings are not suits, and therefore are not removable; but a proceeding in a court to enforce a tax or municipal assessment is a suit.-A proceeding to fix the value of property for the purpose of

Hatch v. Dorr, 11 Fed. Cas. 805,1 McCr. 291; 4 McLean 112;

Osborn v. Michigan Air Line R. Co., 18 Fed. Cas. 844, 2 Flip. 503, 25 Int. Rev. Rec. 250, 8 Reporter 296, 11 Chi. Leg. News 367, 4 Cin. Law Bul. 553;

In re Sabin, 21 Fed. Cas. 120, 18 N. B. R. 151, 10 Chi. Leg. News 364, 3 Cin. Law Bul. 625;

St. Luke's Hospital v. Barclay, 21 Fed. Cas. 212, 3 Blatchf. 259;

Schenck v. Peay, 21 Fed. Cas. 667, Woolw. 175, 2 Am. Law T.

taxation, although the tribunal in which it is carried on may be called a court, is not a suit.1 So a proceeding by a city in a court for the assessment of benefits to lands resulting from a municipal improvement, is not a suit. Such proceed

ing process and service, such United States Circuit Court will entertain original jurisdiction. Gregory v. Pike, 50 U. S. App. 4, is a matter of administration, and 25 C. C. A. 48, 79 Fed. 520. the duties of the tribunal are adThus, where a receiver appointed ministrative, and not judicial in the by a United States Circuit Court ordinary sense of that term, though brings suit in such Court, jurisdic- often involving the exercise of tion is entertained because, though quasi-judicial functions. Such aptechnically an original suit, sub-peals are not embraced in the restantially it is an ancillary one.

other. But whatever called, it is not usually a court, nor is the proceeding a suit between parties; it

White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. 67.

But the tendency to enlarge the jurisdiction of the United States Circuit Courts is exhibited by a slightly different case. Where, under exactly similar circumstances, a suit is brought by a receiver appointed by a State court, in the court of his appointment, the suit has been held removable as an original suit-as it technically is, although ancillary in its nature, as much as White v. Ewing, supra, was.

Schultz v. Phoenix Ins. Co., 77 Fed. 375; s. c., Phoenix Ins. Co. v. Schultz, 42 U. S. App. 483, 25 C. C. A. 453, 80 Fed. 337.

$ 47.

166

moval act." Upshur County v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, 34 L. 196.

Further on in the same case it is said:

"We cannot believe that every assessment of property belonging to the citizen of another State can be removed into the Federal Courts. Certainly the original assessment, made by the township or county assessors, could not be called a suit, and could not be thus removed; and there is, justly, no more reason for placing an assessment on appeal within that category. It is nothing but an assessment in either case, which is an administrative act. The fact that the board of appeal may swear witnesses does not make the proceeding a suit. Assessors are often empowered to do this, without altering the character of their functions."

"Is an appeal from an assessment of property for taxation a suit within the meaning of the law? In ordinary cases it certainly is not. By the laws of all or most of the States, taxpayers are allowed to appeal from the assessment of their property by the assessor to some tribunal constituted for that purpose, sometimes called a board of "The assessment of benefits is commissioners of appeal; some- governed by the same rule, and is times one thing and sometimes an- entirely legislative, both so to

2 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.' . .

ings therefore are not removable to the United States Circuit Court.3

power and exercise. Some agency of a drain under the statute of Inmust be employed for the appor-diana (Rev. St. 1894, §§ 5622–5630), tionment. It may be left to the is a suit. He says: judgment of assessors or other officers to fix upon view, or be 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 be 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.

"From the time the report is filed in the State court, the proceeding becomes, in my opinion, a suit between the petitioners on the one side and all others who are made parties thereto by the report on the other side. . . . The proceeding does not involve the mere exercise of the taxing power of the State. It is in the nature of the exercise of the power of eminent domain, and contemplates the taking of land whereon to construct "The legislature of Illinois have, the drain, as well as the assessment by the act in question, delegated of benefits on the remaining lands, this agency for the assessment to whereby to pay for its establishthe county court, which, in turn, ment and construction. In this appoints commissioners to examine particular it differs from a proceedand report; but they act as its offi- ing solely for the purpose of raising cers, and under its control and su- money by the exercise of the taxing pervision. The county court is power to aid in the construction of constituted the primary instru- a public improvement. This difment for making the special assess-ferentiates the present case from ment, and for hearing objections that of In re Chicago, 64 Fed. 897, 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 cases at law, and the final action takes the form of a judgment. Does this constitute a suit,' in the sense of the statute giving jurisdiction to the Federal Courts? Considering the source of power, and that its exer- But the Judge refused to permit cise is legislative or administrative, a removal in that case because it and not judicial in its nature, I am embraced no separable controof the opinion that it is not a 'suit,' versy. within the Federal jurisdiction." Seaman, J., in In re Chicago, 64 Fed. 897.

Judge Baker has decided that a proceeding for the establishment

and other cases of like character, which hold that a proceeding solely for the purpose of raising money by the exercise of the taxing power for the construction of a public improvement is not a suit, although such proceedings may be conducted in a court of general jurisdiction." In re The Jarnecke Ditch, 69 Fed. 161.

In re The Jarnecke Ditch, supra. Upshur County v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, 34 L. 196;

In re Chicago, 64 Fed. 897.