WOODMAN V.
ELY.
83l.l
committed, (Gardner v. Heartt, 3 Denio, 282,) which we do not follow. We are ndt aware of any decision by the supreme court of Michigan touching the right of a mortgagee to maintain an action for an injury either to the mortgaged premises or to his security. We entertain no doubt that the common law gives a remedy to a mortgagee against one who, by an unauthorized act, has so far injured his security as that damage results. The cases in New York, New Jersey, and Wisconsin, where the rights of a mortgagee are the same as in Michigan, are authority for tliis view. The court, therefore, finds that the plaintiff is entitled to judgment against the defendant for the sum of $1,300. It is also found that defendant had no valid license from the mortgagors, as against the mortgagee, to cut and remove timber from the mortgaged land. The plaintiff is entitled to judgment against the defendant for the sum of $1,300. Judgment will be entered for that amount, with oosts.
WOODMAN
and another
'V.
ELY and another.
(Circuit Oourt, tv. D. Michigan, N. D. June 9,1880.) TAXATION-CoLLEOTIoN-lNJUNCTIclN.-A court of equity will not restrain the collection of a tax, upon a purely legal objection, where the land has been duly assessed. BA.ME--VALUATION-IN.roNCTION.-A court of equity will not restrain the collection of a tax upon the ground of valuation. SAME-.JURISDICTION .-The criterion of jurisdiction is the amount of the tax in dispute.
In Equity. Hearing on pleadings and proofs. S. S. Olds, for complainants. L. D. Norris, for defendants. WITHEY, D. J. Bill to restrain the collection of taxes upon the undivided three-fourths of what are known as canal-land groups 666, 667, 668 and 669, in Mackinaw county, Michigan, for the year 1877. Upon the other undivided quarter the
84.0
FEDERAL REPORTEr..
taxes have been paid. Complainant '''{oodman owns a half, and Washburne a quarter interest. Prior to 1677 the lan.ds were assessed at five dolhrs per acre; in that year they were assessed at $10. It is alleged in the bill of complaint that no assessment roll was m(lde out until sometime in June, 1877, and that these complainants were thereby deprived of the opportunity which the statute gives them as owners of the land to show cause on the third Monday of May and on the two following days, at the supervisor's office, why the assessment as to the valuation thereof shonld be altered. It is admitted thltt complainants did not visit the supervisor's office upon either of the days named, so that if the valuation was excessive, in the opinion of the tax payers, they lost nothing by the supervisor's delay in not completing the roll until June. The question was presented whether the supervisor has any power to make out bis assessment roll subsequent to the time when it is to be ready for review in May. Whatever view I might take, the supreme court of Michigan, as I understand the ruling in the case of The Albany &: BOHton Mining Co. v. Auditor General, 37 Mich. 391, has settled the question against complainants. Chief Justice Cooley, p. 3D7, speaks of the failure of the supervisor to have his roll ready as a mere irregularity, and the case holds that upon a purely legal objection a party whose land has been assessed cannot come into a court of equity to have the collectiou of the tax restrained. The supreme court of the United States, in Sta:'8 Railroad Tax Oases, 92 U. S. 613, says: "It has been repeatedly decided that neither the mere illegality of the tax complained of, nor its injustice, nor irregularity, of themselves, give the right to an injunction in a court of equity." According to these decisions, in addition to the alleged illegality of the assessment, complainants were bound to have made a clear case for equitable relief before they were entitled to have the collection of a tax enjoined. The bill alleges a fraUllulently excessive levy, and inequality in the valuations on the roll. Mere excessive valuation does not justify an injunction rostraining the collection of a
tI.
tax, and there is an entire failure to prove fraud on the part of the assessor. The only evidence tending to establish inequality of valuation is that in 1876 these lands were· assessed not above five dollars an acre; that in 1877 they were (most of them) assessed $10 an acre. A witness testifies that the lands of the Mackinaw Lumber Company, in the same township, were assessed not above five dollars an acre. Both tracts are pine land, and the same witness testifies that complainants' lands are not worth over five dollars an acre. There is other evidence as to their value not exceeding that sum, but there is no testivalue of the two tracts, or why mony to show the one tract or description should not be valued higher than another. There is, therefore, no ground for saying that complainants are entitled to be relieved as tax payers on the ground of inequality or injustice in the assessment of their property, if the ground was sufficient. The amount of the tax which they dispute as illegal and fraudulent does not exceed $500, and it is not believed, therefore, that the court has jurisdiction. The entire tax against the three-fourths interest of these complaints was $920.76. They tendered to the auditor general $650 as a just amount of tax for them to pay, leaving only $270.76 in dispute. Complainants claim that it is· the value of their interest in the land that controls as to jurisdiction. But we regard the amount of tax in dispute as the criterion of jurisdiction, so far as depends upon the sum or value in dispute. Adams v. Board of County Commissioners, McCahan's R. 241. The bill is dismissed upon all the grounds stated.
84:2 WOODMAN
FEDERAL REPORTEn.
and another v. LATIMER and another. June 9,1880.)
(Oircuit OOU'l't, W. D. Michigan, N. D.
TAXATION-COLLECTION-INJUNCTION-JURIBDlCTION.
In Equity. Demurrer to bill. L. D. Norris, for demurrer. S. S. Olds, contra. WITHEY, D. J. Bill filed to restrain the collection of taxes of 1878, upon the sole ground that the tax roll was not ready for review on the third Monday of May, to which a demurrer was interposed by the defendants. The state supreme court in 37 Mich. 391, dted in the other case, (ante, -,) having held that this was not a sufficient ground for relief in equity against the collection of a tax, it must be regarded as decisive of this case. A federal court will, with tew exceptions, follow the decision of the highest tribunal of the state as to the construction of a state law, and a ruling as to the effect of a failure to complete an assessment roll within the time prescribed by such statute does not seem to be within the exceptions. 15 Wall, 548, and 92 U. S. 613, hold that mere illegality in a tax is not a sufficient ground upon which to sustain a bill in equity to restrain the collection thereof. The whole amount of tax in dispute is $820.60. Complainant Washburne's one-quarter intf\rest is but $205.15; Woodman's $-410.30-neither interest amounting to $500. The rule seems to be that while different tax payers may join in such a suit there must as to each be in dispute an amount exceeding the sum or value of $500, the interest of each being ini ts nature several. Adams v. Board of County Commissioners, McCahon's R. 235; King v. Wilson, 1 Dil. 568. But it does not become necessary to decide this question. Demurrer sustained, with costs.