200

86 FEJ;lERAL REPORTER.

in favor of the appellee, when they should have been in favor of the appellants. The only question presented by the record is a question of fact,-did the evidence considered by the circuit court justify the finding and decree? In determining this question the finding and decree must be taken as presumptively correct, and, unless it clearly appears from the record that some mistake has been made in the consideration of the evidence, the decree should not be disturbed. The rule to be applied is clearly stated in the case of Crawford v. Neal, 144 U. S. 585, 596, 12 Sup. Ct. 759, where it is said:
"The cause was referred to a ma'ster to take testimony therein, and to report to this court his findings of fact, and his conclusions of law thereon. This he did, and the court, after a review of the evidence, concurred in his finding and conclusions. Clearly, then, they are to be taken as presumptively correct, and, unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand."

See, also, Tilghman v. Proetor, 125 U. S. 136, 8 Sup. Ct. 894; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Warren v. Burt, 12 U. S. App. 591, 7 C. C. A. 105, an(!. 58 Fed. 101; Paxson v. Brown, 27 U. S. App. 49, 10 C. C. A.135, and 61 Fed. 874. We do not deem it at all necessary to here review the testimony at length. It is sufficient to say that, after a thorough examination of the record, with the aid afforded by the arguments and briefs of counsel, we are unable to hold that the evidence did not justify the finding and decree made and entered by the circuit court. The decree, therefore, will be affirmed.

ALTSCHUL v. GITTINGS, Sheriff. (Circuit Court, D.. Oregon. April 1, 1898.) No. 2,236.
1.

TAXATION-EQUALIZATION-SUIT TO ENJOIN COLI,ECTION.

Where the law creates a board of equalization, and provides that ''it shall be the duty of persons interested to appear at the time and place appointed for the meeting of the board, · · · and if it shall appear that there are any lands ... ... ... assessed under or beyond their actual value such board shall make the proper correction," a person aggrieved by the wrongful act of the assessor cannot maintain a suit in equity to enjoin the collection of any portion of the tax unless he first seeks redress at the hands of the county board of equalization. 'l'he board of equalization created under the laws of Oregon is empowered to correct all errors of assessment,-as well those where the property or rights are not the subject of taxation as those where the assessment is unequal or excessive.

2. SAME-POWER OF BOARD OF EQUALIZATJON.

3. SAME-ExCLUSIVE REMEDy-FEDERAL QUESTION.

'Where the laws of a state create tribunals for the correction and equalization of assessments, and confer upon such tribunals power to grant relief to aggrieved persons, it is for the supreme court of the state to determine whether the statutory remedy is exclusive, or whether it Is only cumUlative; and the supreme court of Oregon having held that the jurisdiction given county boards of equalization is exclusive, and that the court is without jurisdiction to grant relief from the erroneous exercise of the taxing power except in cases of frand, such decision raises no federal question.

ALTSCHUL V. GITTINGS.

201

Williams, Wood & Linthicum, for plaintiff. Milton H. Smith, for defendant. BELLINGER, District Judge. This is a suit to restrain the collection of taxes upon cer-tain lands belonging to the complainant, situated in Harney county, upon the ground that the assessment complained of is excessive, unequal, and disproportionate, in that all of the said lands are unfenced and uncultivated, but were assessed, nevertheless, as other lands, which were fenced and cultivated and of better quality, situated in the neighborhood; and upon the further ground, in effect, that the assessment includes large quantities of lauds inuring to the complainant under the wagonroad grant made to aid in the construction of a wagon road from Albany, Or., to the eastern boundary of the state, not yet patented, and therefore not liable to assessment and taxation. The complainant excepts to certain portions of the answer filed herein, as follows: First, to the allegation that the defendant does not know, and cannot set forth, as to his belief or otherwise, whether or not the complainant and his predecessors have duly and regularly paid all or any taxes assessed and levied upon said land for which patents have been so issued; second, to the allegation that the plaintiff and his predecessors in interest have, at various times prior to the imposition of this tax, leased portions of the lands described in said notice of sale, and received rents therefor, and have held themselves out as the owners of said lands, and therefore should be estopped now to say that they are not tht' owners in fee; third, to that part of the answer which alleges that the selected lands should be designated only as therein before set forth in said answer; and, finally, to so much of the answer as alleges that by the laws of Oregon provision is made for the creation of a board of equalization for the county of Harney, for the purpose of equalizing assessments imposed on all lands in said Harney county for the year in question, and that said board had its meetings and sessions for that year, of which the usual notice was given, and that it was incumbent upon the complainant or his predecessors to apply to said board for the relief sought in this action, etc. {)f the several exceptions, all except the last have heretofore been disposed of. By the last exception is presented the important question whether the complainant is precluded to seek the relief prayed for in this suit by his failure to apply to the board of equalization for Harney county for the relief which he seeks in this action, or, more properly speaking, whether the board of equalization for Harney county had jurisdiction to grant the remedy to the plaintiff which he seeks in this suit, and, if so, whether that remedy is an exclusive one. The statute provides that it shall be the duty of persons interested to appear at the time and place appointed for the meeting of the board of equalization of the county; and if it shall appear to such board of <>qilalization that there are any lands, lots, or other property assessed twice, or in the name of a person or persons not the owner thereof, or assessed under or beyond its actual value, or any lands, lots, or other property not assessed, said toard shall

.: FEDER1Ui REP(jRTER.

make the proper corrections. . It Was held in this in the case of Investment Co. v. Charlton, 13 Sawy. 25, 32 Fed. 192; that a person by the wrongful action of an assessor in the valuawho tion of his own or other's property for taxation cannot maintain a suit in equity to enjoin the collection of any portion of the tax resulting from such action unless he first seeks redress the hands of the county board of equalization as provided by statute. Where the laws ofa state create a tribunal for the correction and equalization of assessments, and confer upon such tribunal power to grant relief to aggrieved persons, it is for the supreme court of the state to determine whether the statutory remedy is exclusive, or whether it is only cumulative, and its action in that respect raises no federal question. Railroad Co. v. Patterson, 154 U. S. 130, 14 Sup. Ct. 977. In the case of Association v. Kelly, 29 Or. 412, 45 Pac. 901, it was held, in effect, that the jurisdiction given to the county boards of equalization· is exclusive, and that the court is without jurisdiction to grant relief from the erroneoufl exercise of the taxing power, except in cases of fraud. It is claimed on the part of the complainant, among other things, that the remedy provided by this statute does not e:x:tend to the case made here, where one of the grounds of the complaint is that property or interests have been assessed that are not the subjects of taxation. I am of the opinion that this board of equalization is empowered to correct all errors of assessment,-as well those where the property or rights are not the subject of taxation, as those where the assessment is unequal or excessive. Moreover, this allegation in the answer, in any view of this question, is material as an answer to so much of the complaint as charges that the valuations in the assessment in disproportionate to those made question are excessive, unequal, upon other lands of like character in the viCinity. The fourth exception therefore is overruled.

OARSON v. OOMBE. (Olrcult Court ot Apneals, Fifth Circuit. No. 640.
1.

ApPEAL FROM PRET,IMINARY INJUNCTION -

March 1, 1898.)

On appeal from an order granting a preliminary injunction in aid of the appointment of a receiver, where the question as to the jurisdiction of the circuit court was of a grave and vital character, held, that the circuit court of appeals would not then determine it, but would decide the questicn of the propriety of the injunction on Its merits, and leave the jurisdictional question until after final decree below, so that the parties, if they so desired, might take It direct to the supreme court. A preliminary injunction In aid of the appoIntment of a receiver, and to prevent the defendants from fraudulently using a judgment rendered In their favor by consent, held to have been properly granted.

JURISDICTION OF CIRCUIT COURT.

2.

PRELIM DIARY INJUNCTION.

Appeal from the Circuit Court of the United States for the Western Dh,trict of TexlUl.