The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 28
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250 FEDERAL REPORTER
upon its property. These cases, however, both proceed upon the as-
sumption that the arbitrary and discriminating action of the assessors
was in violation of the Fourteenth Amendment. They each arose on
independent bill in equity, explicitly laid upon the violation of the Unit-
ed States Constitution, and we do not read them as indicating that an
assessment regularly made may be reviewed upon the mere allegation
that the assessment was erroneous, even though the error proceeded
from a deliberate effort to overvalue the plaintiff's property, which
might properly be deemed a fraud. In the case at bar there was no
suggestion of any unconstitutional conduct of the state board of tax
commissioners, nor indeed the least ground for such an assertion. At
most the facts justified an error in the way in which the assessment
Moreover, in each of the cases cited there were no means provided
in the state statute by which the action of the assessors could be ju-
dicially reviewed as can be done in New York by certiorari. Now it
is true that the Supreme Court mentioned this fact only upon the ques-
tion of the plaintiff's right to equitable relief, but we think that the
distinction may be taken as going deeper. While there may be uncon-
stitutional discrimination merely through their administration of a val-
id statute by officials, the action prohibited by the Fourteenth Amend-
ment must be that of the state, and it cannot be said, at least under
ordinary circumstances (Ex parte Royall, 117 U. S. 241, 6 Sup. Ct.
734; 29 L. Ed. 868), when the state has itself provided means for the
correction of just such miscarriages, that the initial action of its offi-
cials is its own until the final result has confirmed it and made idle
further appeal to the state authorities. Therefore we should be slow,
if the receiver or the defendant had indeed based its claim upon the
Fourteenth Amendment, to admit any jurisdiction to review an as-
sessment in the face of section 46 of the New York Tax Law.
What we have said about the assessment of the special franchises
applied equally to the equalization, since under section 45a, subdivisions
1 and 2 (as added by Laws 1911, c. 804), prior to 1916, the state board
was itself to equalize the assessment, and the supervisors must enter
that sum upon the rolls. As equalizer the state board was as exempt
from judicial review as it was as assessor. In so far, therefore, as the
District Court attempted any review of the special franchise assess-
ments as fixed, and necessarily as equalized, by the state board of tax
commissioners, we think that it exceeded its jurisdiction. This point
the county treasurer raised originally, and could certainly raise it
here, if his appeal were before us. Upon the receiver's appeal we think
the point is still open, because the question is not one which the con-
sent of the parties can cure; rather it goes to the assertion of a ju-
risdiction over a subject-matter which under these circumstances the
District Court did not and could not exercise.
We may assume that it was open to the District Court to correct any
errors upon the face of the rolls, taking the assessments as they stood
as to the taxes before 1915, and that the court had jurisdiction to that
end. However, aside from the correction of the assessment, the re-
ceiver raises no question of the orders of May 8, 1917, except the
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/43/: accessed April 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.