1. A suit to enjoin a public officer from enforcing a statute is
personal and, in the absence of statutory provision for continuing
it against his successor, abates upon his death. P.
258 U. S.
222.
2. The Act of February 8, 1899, c. 121, 30 Stat. 822, does not
authorize such revivor against state officers, nor does § 461 of
the Arizona Civil Code. P.
258 U. S. 222.
3. A suit against the members of a continuing public Board, such
as a Board of county Supervisors in Arizona, does not abate when
members retire, and their successors may be substituted. P.
258 U. S.
224.
4. Injunctive relief against collection of taxes unlawfully
assessed on lands in Arizona and against future assessments may be
obtained in a suit against the Board of Supervisors of the county
in view of their functions under the Arizona law. P.
258 U. S.
226.
5. Lands entered within a reclamation project are not subject to
state taxation before the equitable title has passed to the
entryman, and that title does not pass until the conditions of
reclamation and payment of water charges due at time of final
proof, imposed by the amended Reclamation Act, have been fulfilled
in addition to the requirements of the Homestead Act. P.
258 U. S.
226.
6. The Act of June 23, 1910, which permits entrymen within
reclamation projects who have proved full compliance with the
Homestead Law to assign in whole or in part to other persons,
subject to the requirements of the Reclamation Act, was designed to
enable entrymen, whose entries were cut down to smaller farm units
prescribed by the Secretary of the Interior, to dispose of their
surplus to others who would pursue the requirements of the
Reclamation Act, and did not operate to subject such entries to
state taxation. P.
258 U. S.
231.
7. With respect to taxation, mining claims differ from other
claims to public lands in that the mining interest, with the right
to appropriate the mineral, arises from discovery and location, and
is independent of patent. P.
258 U. S.
231.
Page 258 U. S. 220
8. Reclamation entries are not taxable by the state as
"equities" before the size of farm units has been fixed, or before
the final certificates have been issued to the entrymen by the
government. P.
258 U. S.
232.
Reversed.
Appeal from a decree of the district court dismissing a bill
filed by the appellant, on behalf of himself and others in like
situation, to enjoin the assessment and collection of state taxes
on lands within a federal reclamation project.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The appellant, Irwin, a citizen of California, filed his bill of
complaint in the district court against the treasurer, the
assessor, the attorney, the sheriff, and the members of the Board
of Supervisors of Maricopa County, Arizona, citizens of Arizona. He
averred that he had an interest, as a homestead entryman, under the
General Homestead Act of Congress of May 20, 1862, c. 75, 12 Stat.
392, and the Reclamation Act of June 17, 1902, c. 1093, 32 Stat.
388, in land included within the Salt River reclamation project, in
Maricopa County; that he had not fulfilled many of the conditions
by him to be performed before the title to the land would vest in
him; that, meantime, it was the property of the United States, and
not subject to taxation by a state; that he brought the suit in
behalf of himself, and also in behalf of other reclamation
homestead entrymen within the Salt River Project in Maricopa
County, and their assigns, similarly situated, desiring to
Page 258 U. S. 221
avail themselves of the benefits of it; that the defendants had
levied and assessed taxes against these homestead premises of
plaintiff and the others in whose interest he sues, for several
years, and had demanded payment of them, and threatened to collect
them by suit and sale of such lands, and to assess them in the
future; that such action was in contravention of Article IV, § 3,
of the federal Constitution, deprived him and his fellow entrymen
of a privilege and immunity secured to them as citizens of the
United States, deprived them of property without due process of
law, and denied them the equal protection of the laws, all under
the Fourteenth Amendment. He prayed for an injunction against the
defendants and their successors in office, and each of them, as
taxing authorities of Maricopa County, from further assessing said
lands, collecting the taxes already assessed, or bringing suit to
collect the taxes as delinquent, or to sell such interests. After
answer and reply, the case was heard on an agreed statement of
facts. The district court dismissed the bill on its merits without
opinion. This is a direct appeal from the district court under §
238 of the Judicial Code, as amended January 28, 1915, 38 Stat.
804, because the suit is one involving the construction or
application of the Constitution of the United States.
On January 24th last, the cause was submitted to the Court by
counsel for the appellant upon brief; counsel for appellees not
appearing. Since that day, a brief has been filed on behalf of
appellees and considered by the Court. When the case was called,
counsel for appellant submitted a motion, suggesting that all the
appellees, county officers of Maricopa County, Arizona, who at the
time of bringing, hearing, and deciding the suit below were charged
with the duty of assessing and collecting taxes therein had, with
exception of the sheriff and one of the three members of the Board
of Supervisors, retired from office, and that
Page 258 U. S. 222
their successors had been elected and qualified. These
successors, the present officers of the county, the appellant asked
to have substituted as appellees in this case. The motion was
inadvertently granted. The order granting it must be in part
vacated.
A suit to enjoin a public officer from enforcing a statute is
personal, and, in the absence of statutory provision for continuing
it against his successor, abates upon his death or retirement from
office.
Pullman v. Croom, 231 U.
S. 571. In
United States ex rel. Bernardin v.
Butterworth, 169 U. S. 600,
substitution was refused, although consent was given by the
successor in office. This Court said (p.
169 U. S.
605):
"In view of the inconvenience, of which the present case is a
striking instance, occasioned by this state of the law, it would
seem desirable that Congress should provide for the difficulty by
enacting that, in the case of suits against the heads of
departments abating by death or resignation, it should be lawful
for the successor in office to be brought into the case by
petition, or some other appropriate method."
In response to the suggestion, Congress passed the Act of
February 8, 1899, c. 121, 30 Stat. 822, under which successors of
United States officers who have been sued may be substituted for
them upon proper showing. In
Caledonian Coal Co. v. Baker,
196 U. S. 432,
196 U. S. 442,
it was held that the statute authorized such procedure in the case
of a territorial judge appointed under a law of the United States.
But no authority exists for the substitution of successors of state
officers in such cases. We have examined the statutes of Arizona,
and find none in them. The Arizona Civil Code contains the
following:
"Sec. 461. An action shall not abate by the death or other
disability of a party, or by the transfer of any interest therein,
if the cause of action survive or continue. In case of the death or
disability of a party, the court, on
Page 258 U. S. 223
motion, may allow the action to be continued by or against his
representative or successor in interest. In case of any other
transfer of interest, the action may continue in the name of the
original party, or the court may allow the person to whom the
transfer is made to be substituted in the action."
This does not permit the substitution of a successor for a
public official sued personally.
In the
Butterworth case,
supra, it was sought
to justify substitution under an act which reads as follows:
"No action, brought or to be brought, in any court of this state
shall abate by the death of either of the parties to such action,
but upon the death of any defendant, in a case where the action by
such death would have abated before this act, the action shall be
continued, and the heir, devisee, executor or administrator of the
defendant, as the case may require, or other person interested on
the part of the defendant, may appear to such action."
This Court said (p.
169 U. S.
605):
". . . We are unable to perceive that this statute, either in
its terms or its spirit, is applicable to cases like the present
one. Neither the heir, devisee, executor, or administrator of a
deceased official would have any legal interest in such a
controversy. Nor, in a case of a resignation, could the successor
be said to be 'a person interested on the part of the
defendant.'"
What we have said applies to the motion for substitution so far
as it relates to Sam F. Webb, sued as county treasurer, C. W.
Cummins, sued as county assessor, and L. N. Laney, sued as county
attorney, and the order granting the motion as to them is vacated,
the motion is denied, and the cause is dismissed as against them,
without prejudice, of course, to new suits against their
successors.
It may not be improper to say that it would promote justice if
Congress were to enlarge the scope of the Act
Page 258 U. S. 224
of February 8, 1899, so as to permit the substitution of
successors for state officers suing or sued in the federal courts,
who cease to be officers by retirement or death, upon a sufficient
showing in proper cases. Under the present state of the law, an
important litigation may be begun and carried through to this Court
after much effort and expense, only to end in dismissal because, in
the necessary time consumed in reaching here, state officials,
parties to the action have retired from office. It is a defect
which only legislation can cure.
J. G. Montgomery, county sheriff, still remains as appellee in
the case, but as his taxing duties are only connected with the
service of process in tax suits, it is doubtful whether, were he
the only party here, an injunction against him would give the
relief sought. It is not necessary to decide this, however, as will
be seen from what follows.
So far as the order already entered substitutes for C. W.
Peterson and W. K. Bowen sued as county Supervisors, C. S. Steward
and Guy F. Vernon, who have been elected to be their successors, as
appellees, it will stand, for the principle to be applied in their
case is different. The rule requiring abatement of such suits
against officials on their retirement, and forbidding substitution
of their successors, does not apply when they constitute a Board,
having a continuing existence.
Marshall v. Dye,
231 U. S. 250;
Richardson v. McChesney, 218 U. S. 487,
218 U. S. 492;
Murphy v. Utter, 186 U. S. 95. An
examination of the statutes of Arizona as to the composition and
duties of this Board leaves no doubt that it is a continuing one. A
county in Arizona is a body politic and corporate. Paragraph 2388
of the Arizona Code of 1913 provides that "its powers can be
exercised only by the Board of Supervisors or by lawful agents . .
. acting under their authority and authority of law." The Board has
three members, and is vested with very wide and varied powers,
acting as a
Page 258 U. S. 225
Board. Code, Tit. 10, c. IV. Its members exercise official
duties only as members of the Board, and a quorum of two may act.
Code, par. 2408. Every two years, either one or two members are
elected, but the retiring members hold until their successors are
elected and qualified. Code, pars. 2399, 2400. The motion should be
granted so far as it asks the substitution in case of the two
Supervisors, unless it appears that, under the averments and prayer
of the bill, an injunction against the Board of Supervisors alone
will not aid the plaintiff.
Warner Valley Stock Co. v.
Smith, 165 U. S. 28,
165 U. S. 35-36.
The bill prays an injunction against the collection of taxes
already assessed for each of 12 years and against future
assessments. Are the functions of the Board of Supervisors such
that an injunction against them would prevent such collection and
assessment?
Under the Arizona statutes, the procedure in the assessment and
collection of taxes is that the county assessor makes the original
assessment roll against the owners, and files it with the Board of
Supervisors.Code, §§ 4860, 4874. The Supervisors or a majority of
them constitute a Board of equalization, and revise the assessment
roll, and send it to the state Board of equalization. Upon its
return from the state Board, § 4892 provides that the Board of
Supervisors shall then proceed to assess taxes according to the
valuation specified in the assessment roll, and upon completion of
such assessment, the chairman of the Board of Supervisors shall
annex to the roll, a warrant commanding the county treasurer to
collect from the several persons named in the roll, the total taxes
set opposite their respective names.
It is the duty of the Board of Supervisors to levy the taxes, to
direct all suits to which the county is a party, to supervise the
official conduct of all county officials charged with assessing and
collecting the public revenues, to see that they discharge their
duties faithfully to direct
Page 258 U. S. 226
prosecutions for delinquencies (Code, par. 2418), to receive
report of the treasurer and
ex officio tax collector each
year of delinquent lists of real estate taxes, to examine and
compare them, and to correct them if any property therein reported
is not subject to taxation, and to return them to the Treasurer for
collection (Code, §§ 4909, 4912), and to exercise the same
authority with respect to the "back tax book" for previous
years.
In view of these various duties of the Board of Supervisors, not
only in respect of the levying of future assessments, but in the
matter of correction and collection of delinquent taxes, it is
clear that an injunction restraining the Board from future
assessments on the lands in question, or from taking any steps to
collect the back taxes, would be substantially to secure the relief
the plaintiff seeks.
Coming now to the merits of the controversy, the point at issue
is whether, when the plaintiff and his fellows completed all that
they had to do under the original Homestead Act to perfect their
right to a patent, they had an equity against the government which
was taxable by the territory of Arizona, and its successor, the
state. On the pleadings and the agreed statement of facts, it is
admitted that the plaintiff and his associates performed all the
conditions under the Homestead Act, and that they duly took all the
preliminary steps enjoined under the Reclamation Act; but it is
averred, and not denied in the answer of the defendants, that a
number of important steps remained to be taken by plaintiff and
those for whom he sues in perfecting their claims under the
Reclamation Act at the times these taxes were levied, and in the
case of the plaintiff and some of the class at the time of bringing
this suit.
Under the Homestead Act, Rev. St. § 2291, every person making a
homestead entry was required, among other things, to establish a
residence upon the tract of
Page 258 U. S. 227
land entered, and maintain a residence thereon and cultivate it
for a period of not less than five years, and to submit final proof
thereof, upon which patent ultimately issued in due course, within
seven years after the date of entry. The act was amended June 6,
1912, c. 153, 37 Stat. 123, to reduce residence to three years.
Under the third section of the Reclamation Act, 32 Stat. 388, the
Secretary of the Interior is authorized to withdraw from entry,
except under the homestead laws, any public lands believed to be
susceptible of irrigation from the works he is about to initiate,
and all homestead entries on such lands are made subject to all the
provisions, limitations, charges, terms, and conditions of the
Reclamation Act. The act further provides (§ 5) that the entryman
upon lands to be irrigated from the government works shall, in
addition to compliance with the homestead laws, reclaim at least
half of the total irrigable area of his entry for agricultural
purposes, and, before receiving a patent for the lands covered by
his entry, shall pay to the government the charges apportioned
against such tract as contribution to the cost of the works. The
Secretary is authorized to fix a limit of area of land per entry
representing the acreage which may reasonably support a family. The
Secretary is given full power in § 10 to make rules and regulations
needed to carry the act into effect. He has done so. Under the act
and the regulations contained in the General Reclamation Circular,
each entryman is required to conform his entry to a "farm unit"
established by the Secretary within each reclamation project, and
this has forced many relinquishments and cancellations of surplus
land in homestead entries, leading to remedial legislation
hereafter mentioned. The entryman is required to clear the land
entered of brush and other incumbrances, to provide the same with
lateral ditches for its effective irrigation, to grade the same and
put it into proper condition for crop growth, and to plant,
water,
Page 258 U. S. 228
and cultivate, during the two years next preceding the time of
filing his final affidavit, half of the irrigable area of his
entry, and to grow satisfactory crops thereon --
i.e.,
crops equal to crops raised upon lands similarly situated. Upon
final proof, a final certificate is issued to the entryman showing
that he has performed all conditions precedent to acquiring the
title. The patent, which is the formal grant, follows at the
convenience of the Land Office, and often is delayed. By the
Reclamation Act, homestead reclamation entrymen were obliged to pay
all water charges before a patent would issue, but the effect of
subsequent legislation, in Acts of August 9, 1912, c. 280, 37 Stat.
267, of August 13, 1914, 38 Stat. 686, and of February 15, 1917, c.
71, 39 Stat. 920, is to divide the water charges into installments
of varying percentages, falling due during a period of 20 years,
from and after public notice by the government that the water is
ready for use, and to allow a patent upon payment of all
installments due at time of submitting final proof. If proof is
satisfactory, a patent then issues conveying a full legal title,
but reserving a prior lien to the government, superior to all
others, for all installments unpaid.
The rule established by the decisions of this Court is that, by
virtue of its sovereignty and the constitutional power of Congress
to dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States, no
state can tax the property of the United States within its limits.
This was recognized and enforced by the Enabling Act of June 20,
1910, 36 Stat. 557, under which Arizona was, on February 14, 1912,
admitted to the Union, for that act contained an express
declaration that lands and property belonging to the United States
or reserved for its use were exempted from taxation.
Van
Brocklin v. Tennessee, 117 U. S. 151,
117 U. S. 168;
Wisconsin Railroad Co. v. Price County, 133 U.
S. 496,
133 U. S. 504.
An exception to this principle,
Page 258 U. S. 229
or rather its nonapplication, is recognized where the government
has, by final certificate, parted with the equitable title to a
person subject to state taxation, and retains only the legal title
by its delay in issuing the patent. Not until the equitable title
passes can the state tax the entryman, except in case of mining
claims (the reason for which we shall presently consider) and in
cases in which express authority to tax is given in the statute.
Bothwell v. Bingham County, 237 U.
S. 642,
237 U. S. 647;
Sargent v. Herrick, 221 U. S. 404,
221 U. S. 407;
Stearns v. Minnesota, 179 U. S. 223,
179 U. S. 251;
Northern Pacific R. Co. v. Myers, 172 U.
S. 589;
Hussman v. Durham, 165 U.
S. 144,
165 U. S. 147,
165 U. S. 150;
Wisconsin Central R. Co. v. Price Co., supra; Northern Pacific
Ry. Co. v. Traill County, 115 U. S. 600;
Colorado Co. v. Commissioners, 95 U. S.
259;
Railway Co. v.
McShane, 22 Wall. 444;
Railway
Co. v. Prescott, 16 Wall. 603.
The county authorities in this case were in error in supposing
that an equitable title passed from the government to the entryman
here, when the latter had fulfilled the requirements of the
Homestead Act. Had their entries been controlled solely by that
act, they would have been right. But, as we have seen, their
entries were made under that act as supplemented and qualified by
the Reclamation Act, and the latter expressly entails on such
entrymen additional conditions which must be performed before an
equitable title or a right to a patent is secured.
We are cited by counsel for appellees to an opinion of Judge
Dietrich of the District Court of Idaho in a suit brought by the
United States to enjoin Canyon County, Idaho, and its taxing
officers, from taxing lands or the interests of settlers therein in
the Boise reclamation project.
United States v. Canyon
County, 232 F. 985. The case involved two classes of lands.
The first was of lands in which a patent had issued, conveying a
fee in the land subject to a lien of the United States, superior to
all
Page 258 U. S. 230
others, for future installments of water rents. The second was
of lands in which the conditions of the original homestead law had
been complied with, but the entrymen had not paid in full for their
water rights, and they had not brought the requisite acreage under
cultivation and irrigation. The court held that the interests of
the patentees in the first and of the entrymen in the second class
of lands were taxable by the state. In the first ruling we concur.
The patent vested the full legal title in the entrymen. The fact
that a lien was reserved on the face of the patent prior in right
to all other liens for installments of water charges to fall due in
the future did not prevent this, and the giving patents indicated
an intention on the part of the government that it should be land
of the entrymen, and, of course, it became taxable as such.
Baltimore Shipbuilding & Dry Dock Co. v. Baltimore,
195 U. S. 375.
With the second ruling, in which the district court was
sustained by a decision of the Supreme Court of Idaho,
Cheney
v. Minidoka County, 26 Idaho 471, we cannot agree. We cannot
reconcile it with the cases in this Court which we have cited
above. The district judge relies on the Act of June 23, 1910, which
permits entrymen within reclamation projects, after having made
satisfactory proof of residence, improvement, and cultivation for
the period originally required under the homestead law, to assign
such entries or any part thereof to other persons. Such assignees,
upon subsequently submitting proof of the reclamation of the lands
and upon payment of the charges apportioned against the same as
provided in the Reclamation Act, may receive a patent
"
Provided that all assignments made under the
provisions of this act shall be subject to the limitations,
charges, terms and conditions of the reclamation act."
By circular of the Secretary of the Interior, the entryman may
mortgage his interest also. The argument is that this puts such an
interest as the entrymen has in the lands
Page 258 U. S. 231
in the same category as mining claims, which have always been
taxable.
Elder v. Wood, 208 U. S. 226. We
do not think that mining claims present a convincing analogy. The
basis of the mining interest is discovery and location. These give
full opportunity to the locator of the claim to take out the
mineral, and, since the beginning, this right and interest never
has been dependent for its enjoyment on patent, and so it has been
taxable.
Forbes v. Gracey, 94 U. S.
762. The rule has always been different in respect to
other public lands, as the numerous decisions of this Court cited
above show.
Even before the statute of 1910, a homesteader could mortgage
his interest to help him in performing the conditions of earning
his patent. Mudgett v. Dubuque & Sioux City R. Co., 8 L.D. 243.
The care with which the government has thus framed its land policy
to protect and encourage the homesteader is shown further in
Ruddy v. Rossi, 248 U. S. 104,
248 U. S. 105.
The government incurs heavy liability in providing water for these
lands. It relies on the entrymen to reclaim them, thus finally
achieving its sole object of adding arid tracts to the productive
area of the country. In pursuit of this purpose, it has found the
requirement that the entryman shall pay all his apportioned cost of
the irrigation work before he gets title too burdensome, and, as we
have seen, the sum has been spread in installments over 20 years,
and his title is given him after he has reclaimed the land and paid
the few early installments due at that time. The Act of 1910 does
not purport to subject these lands to taxation while the title is
as yet unearned, and its terms show that it is not intended to
permit anything beyond what fairly falls within its express
provisions. Its evident and sole purpose was to enable entrymen
whose entries were cut down in area by the Secretary of the
Interior in prescribing farm units to dispose of their surplus to
others, who would be able to hold it, fulfill conditions, and
secure a
Page 258 U. S. 232
patent, and avoid a relinquishment or cancellation of the
surplus, which had been the consequence before the act. This is
apparent from an amendment to the Act of 1910 passed May 8, 1916,
39 Stat. 65, and from the Report of the Committee on Irrigation of
Arid Lands of the House of Representatives of the 64th Congress,
1st Session, No. 127, upon which the amendment was adopted. To
construe this remedial legislation, including the Act of 1910,
which is only intended to lighten the task of the entryman in
reclaiming the land and acquiring title, so as to impose on him the
new burden of state taxation, is contrary to its plain policy. We
think, therefore, that the reason for the rule, making the
acquisition of the equitable title the line between nontaxability
and taxability, is stronger in case of reclamation homestead
entrymen than in the instances where, before the Reclamation Act,
it always applied. Moreover, the confusion caused in the past by
the taxation, when specifically permitted, of indefinite and
inchoate interests of the beneficiaries of government land grants
should prevent an inference of the congressional intention to
depart from the rule requiring an equitable title in the entryman
before state taxation, unless a purpose to permit earlier taxation
is express or strongly implied.
It is argued that it is not government property which is sought
to be taxed here before final certificate, but only the interest of
the entryman. In the case at bar, the taxes were in the first
instance assessed against the land, but later the Board of
Supervisors changed the form of the assessment so as to insert the
word "equity" in the record. The power of the Supervisors, under
the Arizona statutes, to order such a change in past assessments is
challenged. We do not think it necessary to decide this. It is
enough to say that the entryman did not have the equitable title
until they received the final certificate, and their interest in
the government's land, until that issued,
Page 258 U. S. 233
was, for the reasons given, not taxable. Whether an interest
like that of the entrymen in land not belonging to the government
would be taxable property we have no occasion to consider.
Of the taxes here complained of, those from 1907 until 1916 were
levied before the Secretary of the Interior in January, 1917, had
fixed for this project a farm unit of 40 acres to which each entry
must conform. Certainly until the area which the entryman could
receive was ascertained, no equitable title could pass.
After the farm unit was established, the entryman had two years
in which to fulfill the requisites of the statute. One of these,
and as important as any, was the filing of the final affidavit
showing that he had performed the conditions precedent to getting a
patent, which he had to present to the land office for approval and
final certificate, which, as we have said, gave him equitable
title. From an exhibit to the bill, the accuracy of which is not
controverted, it appears that, of the class of 49 entrymen for whom
the plaintiff sues, 24 received a final certificate in 1919, and
that 25, including the plaintiff, had not received a final
certificate when the bill was filed. As to the former, assessment
of all taxes assessed against them for the years 1907 to 1918,
inclusive, was illegal, and the defendants J. G. Montgomery,
sheriff, and J. W. Bradshaw, Guy F. Vernon, and C. S. Steward,
members of the Board of Supervisors, should be enjoined from taking
any steps to enforce collection. As to the latter, collection of
all taxes assessed prior to filing the bill, and all future
assessments for taxes on their interests as entrymen until final
certificate shall have been issued to them by the United States
government, will be illegal, and the foregoing defendants should be
enjoined accordingly.
The decree of the district court is reversed, with directions to
enter a decree in conformity with this opinion.
Reversed.