state court, to wit, the State Board of Tax Appeals for the state of New Jersey; or they stay proceedings now pending before the New Jersey Supreme Court or a Justice thereof in aid of the enforcement of judgments of the said State Board of Tax Appeals or they stay proceedings now pending before the New Jersey Supreme Court or a Justice thereof for the entry of judgments and the issuance of executions for the collection of unpaid taxes.
4. The complaints on which the restraining orders were based fail to show that the railroads were without adequate remedies under the laws of the state of New Jersey;
The railroads repeat all of the grounds for the issuance of the preliminary injunctions urged by them in the 1932 and 1933 cases and the defendants repeat, in addition to the aforementioned reasons for the vacation of the restraining orders, the grounds they urged in opposing the 1932 and 1933 orders.
At this juncture in these proceedings the main difference in the status thereof and that of the 1932 cases is that here an additional step has been undertaken pursuant to Section 14 of the Railroad Tax Act, 4 Comp.St.N.J.1910, p. 5271, § 458 (supra).
This makes necessary the determination of whether the issuance of the order of the Justice of the New Jersey Supreme Court in each of these cases constitutes such a prohibition under section 265 of the Judicial Code, 28 U.S.C.A. § 379 (supra)
as prevents the issuance of the restraining orders.
The defendants contend that the decision of the United States Supreme Court in the recent Dorrance Case ( Hill v. Martin, 296 U.S. 393, 56 S. Ct. 278, 80 L. Ed. 293) gives such a theory forceful support. In that case the executors of the Dorrance estate took an appeal from the assessment by the New Jersey Tax Commissioner for inheritance taxes to the prerogative court of New Jersey. That court affirmed the assessment, which was then reviewed by the New Jersey Supreme Court upon a writ of certiorari sued out by the executors. The latter court affirmed the prerogative court and dismissed the writ of certiorari. Then suits were brought in the federal court under section 266 of the Judicial Code (28 U.S.C.A. § 380) to enjoin the collection of the tax. The injunction was denied for want of jurisdiction because of the prohibition contained in Section 265 of the Judicial Code (28 U.S.C.A. § 379). Dorrance et al. v. Martin et al. (D.C.) 12 F.Supp. 746. This decision was affirmed by the United States Supreme Court because the proceedings were deemed judicial. It was stated in the decision that, "The prohibition of section 265 [ 28 U.S.C.A. § 379] is against a stay of 'proceedings in any court of a State.' That term is comprehensive. It includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process. It applies to appellate as well as to original proceedings; and is independent of the doctrine of res judicata. It applies alike to action by the court and by its ministerial officers; applies not only to an execution issued on a judgment, but to any proceeding supplemental or ancillary taken with a view to making the suit or judgment effective. The prohibition is applicable whether such supplementary or ancillary proceeding is taken in the court which rendered the judgment or in some other." 296 U.S. 393, at page 403, 56 S. Ct. 278, 282, 80 L. Ed. 293.
The proceedings under section 14 of the New Jersey Tax Act are not analogous to the inherently judicial proceedings considered in the Dorrance Case, supra. Under the last-mentioned section the action of the Justice of the New Jersey Supreme Court in ordering the tax to be made a judgment does not involve the exercise of any judicial function. He acts rather as a ministerial officer performing the formal administrative duty prescribed by statute to effectuate the tax lien. Hence these cases do not fall within the construction of the United States Supreme Court in the Dorrance Case and the action taken in the New Jersey Supreme Court with relation to the findings of the New Jersey Board of Tax Appeals does not bar injunctive orders of this court under section 265 of the Judicial Code (28 U.S.C.A. § 379).
Another issue is created in these cases which was not raised in the other cases and that concerns the charge of the defendants that the bills of complaint herein are not supported by adequate affidavits.
Federal Equity Rule 25, 28 U.S.C.A. following section 723, provides as follows: "If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or some one having knowledge of the facts upon which such relief is asked."
To be sure the injunctions prayed for in these suits constitute "special relief" but the bills, in each case, are verified by the affidavits of officers of the plaintiff corporations who, by the nature of their offices, would most likely be the best informed persons in the corporations insofar as the subject matter of the suits is concerned.
There was no question of the intent of the Attorney General, as indeed it would be his duty under the New Jersey law, to seek to make the railroad properties pay the assessments, and to restrain such action pending final determination the injunction of this court is necessary and proper.
Further questions of the sufficiency of jurisdiction of this court over these proceedings are discussed at length in memoranda filed in the accompanying cases for the year 1932 and 1933. This court is constrained to the opinion that it has such jurisdiction and that until there is a disposition of the causes upon final hearing the railroads are entitled to temporary injunctions.
Accordingly the motions of the defendants to vacate the present restraining orders will be denied and the motions of the plaintiffs for preliminary injunctions will be granted pending the final hearing and determination of these causes.