§ 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.

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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.

A State tax law may provide for the collection of delinquent taxes by a proceeding in court, which proceeding is undoubtedly a suit. A suit to collect a tax against a nonresident may be removable on the ground of diverse citizenship.5 Suits to collect taxes have been held to be removable as arising under the Constitution of the United States. A proceeding in court to enforce a municipal assessment, by a judicial sale of the property assessed, is, in substance and in name, a suit, and may be within the jurisdiction of a Federal Court.7

§ 48. "An action is civil' when it lies to enforce a private right, or redress a private wrong. It is criminal' when instituted on behalf of the sovereign or common

Contra,

Richards v. Rock Rapids, 72 Iowa 77, 33 N. W. 372; s. c., 31 Fed. 505.

Rev. St. Ind. 1894, § 8488; American Express Co. v. Indiana, 165 U. S. 255, 17 Sup. Ct. 991, 41 L. 707;

Pac. R. Co., 118 U. S. 394, 6 Sup.
Ct. 1132, 30 L. 118;

San Mateo County v. Southern Pac. R. Co., 13 Fed. 145, 7 Sawy. 517.

Other suits to collect taxes have been held not to so involve a Federal question as to be removable

Philadelphia v. Western U. Tel. under the act of 1887-8, ante § 7: Co., 40 Fed. 615; Tennessee v. Union & Planters'

Philadelphia v. Western U. Tel. Bank, 152 U. S. 454, 14 Sup. Ct. Co., 81 Fed. 948;

Brickell v. Farrell, 82 Fed. 220; Indiana v. Adams Express Co., 144 Ind. 549, 42 N. E. 483.

Philadelphia v. Western U. Tel.

Co., 40 Fed. 615;

654, 38 L. 511;

Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. 231;

Sawyer v. Kochersperger, 170 U. S. 303, 18 Sup. Ct. 946, 42 L.

Baltimore v. Postal Tel. Cable 1046, quoted post § 101, note 12. Co., 62 Fed. 500;

An action of debt is a proper

Philadelphia v. Western U. Tel. common-law remedy for the United Co., 81 Fed. 948; States government to adopt to en

In re Stutsman County, 88 Fed. force the payment of a tax. 337;

Philadelphia v. Western U. Tel. Co., 60 U. S. App. 398, 32 C. C. A. 246, 89 Fed. 454.

6 Cases decided under act of 1875, ante § 7, note 7:

Southern Pac. R. Co. v. California, 118 U. S. 109, 6 Sup. Ct. 993, 30 L. 103;

Santa Clara County v. Southern

Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. 80.

7 Fitch v. Creighton, 24 How. 159, 16 L. 596.

in

Such a suit was held removable

Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. 569.

Compare

wealth in order to vindicate the law by the punishment of a public offense."- The Circuit Courts of the United States do not have jurisdiction under the general removal act 2 of any suit, by removal from a State court, except it be "of a civil nature."

The code of Indiana defines a "civil action" as an "action for the enforcement or protection of private rights and the redress of private wrongs."3 It is very nearly, if not exactly, in this sense, as of the date 1789, that the term "suit of a civil nature" is used in the various Federal judiciary acts. A private action to recover damages for a wrong committed by defendant, although based upon a statute, is not a penal action in the sense in which that term is used when speaking of the removal of a cause, but is a civil action.+ Such a suit is not local, but transitory, and may be brought in any court having jurisdiction.5

Lincoln v. Lincoln St. Ry. Co., 77 Fed. 658.

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1 Rapalje & Lawrence's Law Dictionary, p. 21, as quoted in Iowa v. Chicago, B. & Q. R. Co., 37 Fed. 497, 3 L. R. A. 534.

2 Ante § 7.

8 Rev. St. Ind. 1894, § 249, Rev. St. Ind. 1881, § 249.

4 Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. 1123, reversing Attrill v. Huntington, 70 Md. 191, 16 Atl. 651, 14 Am. St. R. 344, 2 L. R. A. 779;

Texas & Pac. R. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. 829; Dennick v. Central R. Co., 103 U. S. 11, 26 L. 439;

Claflin v. Houseman, 93 U. S. 130, 23 L. 833 (overruling Brigham v. Claflin, 31 Wis. 607, 11 Am. R. 623; Voorhies v. Frisbie, 25 Mich. 476, 12 Am. R. 291);

McCarty v. New York, L. E. & W. R. Co., 62 Fed. 437;

Brisenden v. Chamberlain, 53 Fed. 307;

The E. B. Ward, Jr., 16 Fed. 255, 260, 4 Woods 145;

Boyd v. Bradish, 10 Fed. 406, 410, 3 McCr. 253;

Herrick v. Minneapolis & St. L. R. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771;

Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. R. 491;

Boyce v. Wabash R. Co., 63 Iowa 70, 18 N. W. 673, 50 Am. R. 730. Compare

Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, 44 L. 109.

5 Stewart v. Baltimore & O. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. 537.

This principle was applied upon a careful review of the authorities in an opinion by Judge Pardee,

Clark v. Russell, 38 C. C. A. 541, speaking for the Circuit Court of 97 Fed. 900; Appeals of the Fifth Circuit, to a

International Bank v. Faber, 79 suit in the United States Circuit Fed. 919; Court for the Western District of