LITTLE V. BOWERS, 134 U. S. 547 (1890)

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U.S. Supreme Court

Little v. Bowers, 134 U.S. 547 (1890)

Little v. Bowers

No. 194

Argued on the merits January 30, 1890

Motion to dismiss submitted March 3, 1890

Decided April 7, 1890

134 U.S. 547


The voluntary payment of a municipal tax while a suit is pending in this Court between the party taxed and the officers of the corporation, to

Page 134 U. S. 548

determine whether it was legally assessed, leaves no existing cause of action, and requires the dismissal of the writ of error.

Robertson v. Bradbury, 132 U. S. 491, distinguished from this case.

The fact that there is no controversy between the parties may be shown at any time before the decision of the case, and there is no laches in delaying to bring it before the court until after argument heard on the merits.

The case, as stated by the Court in its opinion, was as follows:

This was a writ of certiorari issued out of the Supreme Court of the State of New Jersey on the 6th of November, 1882 at the instance of Henry S. Little, receiver of the Central Railroad Company of New Jersey, a corporation of that state, commanding Samuel D. Bowers, Comptroller of the City of Elizabeth, and the City of Elizabeth, to certify and send to that court their proceedings relative to an assessment of certain taxes made by that city upon real property of the company within the city limits, particularly described in the writ, for the year 1876.

Upon the hearing of the case in that court, the investigation extended to like assessments made by the city for the years 1877 to 1882, inclusive, and the judgment of the court was that the assessments should stand affirmed. That judgment having been affirmed by the Court of Errors and Appeals of the state, this writ of error was prosecuted. The federal question involved is as to whether these assessments impaired the obligation of a contract which the company claimed existed between it and the state by virtue of an act of the state legislature approved March 17, 1854, and were therefore violative of Section 10, Article I, of the Constitution of the United States.

After the argument of the case in this Court upon its merits, the defendants in error were given leave to file briefs, a privilege of which they availed themselves, and they also filed a motion to dismiss the writ of error. This motion is based upon the followings grounds:

First. Because the taxes levied on the property of the company in the City of Elizabeth in and for the years 1876 to

Page 134 U. S. 549

1882, inclusive, being the same taxes mentioned in the record in this cause, have been paid and satisfied in full since the writ of error was issued, together with the costs in the case.

Second. Because the writ of error is being prosecuted by the plaintiff in error for the sole purpose of obtaining the opinion of this Court as to the validity of an alleged contract on the subject of taxation between the State of New Jersey and the company, and the state is not a party in the form or sense in which a party in interest must be a party to a litigation in order to be bound by the judgment of the court.

Third. Because the plaintiff in error does not owe any taxes to the City of Elizabeth, to Samuel D. Bowers, the former comptroller of the city, or to any existing officer of the city, nor does the company owe any sum of money to the city for taxes.

Fourth. Because all claims for taxes heretofore made or held by the City of Elizabeth, or any officer thereof, against the Central Railroad Company of New Jersey, or the property of the company, or any receiver of it, have been adjusted, compromised, and paid in full, voluntarily, by the railroad company or its appropriate officer or representative.

The motion is supported by a number of affidavits of the tax officers of the City of Elizabeth, including the present comptroller and the commissioners of adjustment. From these affidavits it appears that during the year 1887, by virtue of a statute of the state passed in 1886, the commissioners of adjustment for the City of Elizabeth readjusted and reduced to a considerable extent the taxes levied by the city upon the property of the railroad company for the years 1876 to 1882, inclusive, and also for the year 1883; that during the progress of that revision and readjustment, H. W. Douty, real estate agent of the company, appeared before the commissioners from time to time, and urged the reduction of the claims of the city for taxes against the property of the company; that after the adjustment had been completed, the taxes were paid by the railroad company, before interest on them began to accrue under the act by virtue of which the adjustment was made; that no warrant was issued or other step or proceeding

Page 134 U. S. 550

taken by or on the part of the city for the collection of the taxes prior to the time of payment, nor could any proceedings have been taken to enforce their payment for several months thereafter, and that no protest against the payment or objection thereto was made by the company or any person acting on its behalf. It appears that during the progress of the readjustment, the commissioners committed an error by including therein certain taxes for the years 1884, 1885, and 1886. Douty requested them by letter to correct that error, saying: "If this is done, I am satisfied the adjustment will be promptly paid after confirmation." The correction was made as requested, and the taxes thus readjusted and reduced -- the same taxes here in dispute -- were paid by the company, as above set forth.

As regards the costs of the proceedings in the court below, it seems they were paid under the following circumstances:

After the judgment of the Court of Errors and Appeals had been rendered, an entry was made upon its record reciting the fact that the judgment of the supreme court had been affirmed at the costs of the plaintiff in error, and further ordering that the record and proceedings be remitted to the supreme court of the state, to be proceeded with in accordance with law and the practice of the court. As the counsel for the plaintiff in error supposed that that form of the judgment would preclude the taking of a writ of error from this Court, by an arrangement between counsel for both parties, the record was changed to its present form, and the costs in the case were then paid by the plaintiff in error.

Page 134 U. S. 552

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