# Hornbeak v. Hamm

> District Court, M.D. Alabama · April 10, 1968 · 283 F. Supp. 549

URL: https://www.frixlaw.com/law-library/cases/9694149

## Case

- **Full name:** Martha A. HORNBEAK, for Herself and for All Others Similarly Situated, Plaintiff, v. Phillip HAMM, Commissioner of Revenue for the State of Alabama, and His Successors in Office, Defendant
- **Court:** District Court, M.D. Alabama
- **Decided:** April 10, 1968
- **Citations:** 283 F. Supp. 549; 1968 U.S. Dist. LEXIS 12410
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** Godbold, Johnson, Pittman
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694149

## Opinion text

JOHNSON, Chief Judge,
(dissenting):
In what appears to be a reconsideration of the motion to dismiss filed by the defendant in this case — which motion was denied on November 14, 1967, by an order of this Court signed by all three judges constituting the Court — the majority of the Court now determines that there is no federal question jurisdiction and orders the case dismissed. I am of the firm opinion, as I was at the time I signed the order denying the motion to dismiss, that the plaintiff states a cause of action cognizable under the jurisdictional statute, 28 U.S.C. § 1343 (3).
The substance of plaintiff’s constitutional claim is that the defendant Commissioner of Revenue for the State of Alabama and his predecessors in office have abridged, and the defendant and his successors in office will continue, unless prevented by this Court, to abridge, the privileges and immunities of the plaintiff and all other citizens of the State of Alabama similarly situated by continuing to refuse to perform, or neglecting to perform, the duties of the office of the Commissioner of Revenue for the State of Alabama. In testing a complaint against a motion to dismiss, the allegations of the complaint and the reasonable inferences to be drawn therefrom must be assumed to be true. Cooper v. Pate, 378 U.S. 546 , 84 S.Ct. 1733 , 12 L.Ed.2d 1030 . Thus we find here that Martha Hornbeak, the plaintiff and the owner of real estate located in Jefferson County, Alabama, has her real estate assessed *555 for purposes of ad valorem taxation at 30 percent of its fair and reasonable market value; that the defendant Commissioner of Revenue has the power and duty to maintain equalization of the valuation of real property throughout the State of Alabama for the purposes of assessment for ad valorem taxation; that the defendant Commissioner of Revenue and his predecessors in office have for many years failed, refused or neglected to perform the statutory duties provided by §§ 131 and 133, Title 51, Code of Alabama, pertaining to the supervision and control of the valuation, equalization and assessment of property taxes; that the average assessment of real estate for ad valorem taxation within the State of Alabama is approximately 15.4 percent of the fair and reasonable market value. The plaintiff says that, by reason of the lack of uniformity in the valuation and assessment of real property by the defendant, she and others similarly situated are deprived of property without due process of law and are also denied the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. Plaintiff further alleges, and again we must at this point accept as true, that she has no adequate state remedy. To me, such allegations constitute a cause of action under 42 U.S.C. §§ 1983 and 1988 and are, therefore, cognizable under the federal jurisdictional statute, 28 U.S.C. § 1343 (3).
The majority of this Court rests the dismissal of this case upon Bussie v. Long, 383 F.2d 766 (5th Cir. 1967), which holds that an action such as plaintiff now seeks to prosecute involves only a property or monetary right and not a “civil right” within the meaning of § 1343. As I have repeatedly demonstrated throughout the years, I am a strong adherent of the philosophy that district judges are obligated to follow the opinions and rulings of the higher federal courts, e. g., Alabama NAACP State Conference of Branches et al. v. Wallace, D.C., 269 F.Supp. 346 . However, where, as here, we — sitting as a district court— are confronted with decisions from our Fifth Circuit Court of Appeals that are directly conflicting, I know of no authority that says we must follow a particular case, to-wit, Bussie v. Long, 383 F.2d 766 . I would think a more judicious approach would be to follow the better reasoned authority, or where, as here, we have at least four Fifth Circuit cases contrary to Bussie , the preponderance of authority. In Hornsby v. Allen, 326 F.2d 605, 1964 , the Fifth Circuit Court of Appeals specifically held that state licensing of activities is subject to the minimal demands of the Fourteenth Amendment’s due process and equal protection requirements and for that reason an action alleging arbitrary denial of a state license — strictly involving “property” — was cognizable as a “civil right” under the federal jurisdictional statute, 28 U.S.C. § 1343 (3). No jurisdictional amount was alleged or even mentioned in Hornsby . Again in 1964 the Fifth Circuit Court of Appeals in McGuire v. Sadler, 337 F.2d 902 , held that an action alleging deprivation of “property rights” by a state was cognizable as a “civil right” within the meaning of §§ 1983 and 1988 and such an action vested jurisdiction in the district court under 28 U.S.C. § 1343 (3). This same conclusion was reached by the Fifth Circuit in 1967 in Mansell v. Saunders, 372 F.2d 573 . Furthermore, it appears that Hornsby, McGuire and Mansell have been recently revitalized by the Fifth Circuit in Atlanta Bowling Center, Inc., etc. v. Allen, Mayor, etc., February 13, 1968, 389 F.2d 713 . In the Atlanta Bowling Center case, Judge Brown, speaking for the Court, discusses Hornsby and Bussie . In Atlanta Bowling Center, it was contended that the Atlanta Licensing Board violated due process when it arbitrarily denied a license — a “property right” — on a basis not promulgated in the Atlanta ordinance and, further, that the Licensing Board denied the Bowling Center equal protection by granting a license to others while denying a license to the Bowling Center. The district court dismissed the action — as the majority of this Court *556 dismisses Mrs. Hornbeak’s action— “without prejudice” for a lack of federal jurisdiction. The Fifth Circuit in its February 13, 1968 order, even though the appellants were denied relief, decided the case on the merits of the controversy. It is basic that a court cannot decide a case on its merits without first determining that it has jurisdiction to decide the ease. Thus, the Fifth Circuit in Atlanta Bowling Center, Inc., et al. v. Allen, etc., et al., necessarily found jurisdiction under §§ 1983 and 1343(3), in another “property rights” case since the merits were reached and the action was dismissed with prejudice after doing so. It appears, therefore, that not only the preponderance of the authority in the Fifth Circuit but the more persuasive and even the most recent Fifth Circuit authority is contrary to the action taken by the majority of this Court in dismissing Mrs. Hornbeak’s action.
In dismissing this case, the majority of this Court is judicially determining that Alabama’s statutory procedure for taxation, regardless of how inequitable or illegal, 1 is not subject to the minimal demands of the Fourteenth Amendment to the Constitution of the United States. I simply do not believe this to be the law of this country. It is my firm conviction that such arbitrariness on the part of the State authorities (and upon the present submission it is conceded that the plaintiff has no State remedy) in the assessment of real estate for purposes of taxation by the State of Alabama is, if the appropriate complaint and allegations are made under 42 U.S.C.A. § 1983 , cognizable in a federal district court as a “civil action for deprivation of rights” and jurisdiction exists under 28 U.S.C.A. § 1343 (3) “to redress the deprivation.”
The majority, in order to attempt to sustain its action of dismissal, after citing the eases from the Seventh, Tenth and Third Circuits 2 that support the dismissal and recognizing the contrary authority of the Sixth, Second and First Circuits, 3 and after refusing to follow McGuire, Hornsby and Mansell and ignoring the February 13, 1968, case of Atlanta Bowling Center, Inc. v. Ivan Allen, Jr., supra — all of the Fifth Circuit —elects to follow the lone Fifth Circuit case of Bussie . The attempt to distinguish Bussie from these cases with the statement that the “choice has been made” for this Court by Bussie is completely specious. Even the Fifth Circuit in Bussie recognized “there is admittedly a fine line between these eases and the instant case.” Since all these cases— Hornsby, Mansell, McGuire, Atlanta Bowling Center and Bussie — involve nothing more or less than property rights, there simply is no valid distinction which will justify the majority of this Court concluding, solely upon the basis of Bussie , that jurisdiction does not now exist in the case before us.
With deference, I dissent.
. Act No. 502, which is under consideration- here, legalizes the assessment of property for ad valorem taxation at “anything up to 30 percent.” This means anything from one percent (1%) to thirty percent (30%) without any rational basis is authorized by this Act of the Alabama Legislature as a basis for taxing property. While it is not before us at this time, Senate Bill No. 56, which became Act No. 502 — the Act plaintiff is attacking in this case — originated in the Alabama Senate. The Act is clearly unconstitutional by reason of § 70, Article 4, Constitution of Alabama, which requires that all bills for the raising of revenue originate in the House of Representatives.
. Gray v. Morgan, 371 F.2d 172 (7th Cir. 1966); Ream v. Handley, 359 F.2d 728 (7th Cir. 1966); Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967; Fuller v. Volk, 351 F.2d 323 (3d Cir. 1965).
. Glicker v. Michigan Liquor Control Comm’n, 160 F.2d 96 (6th Cir. 1947); Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946); Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694149. Public record. Not legal advice.