Missouri, Kansas & Texas Railway Co. v. Board of County Commissioners , 9 Kan. App. 350 ( 1899 )

The opinion of the court was delivered by

Wells, J. :

The main question in controversy in this case is well stated by the defendants in error as follows ; “Are the local authorities required by law to adopt the equalized valuation fixed by the state board of equalization as the basis upon which all local taxes are extended, or merely as the basis upon which state revenues are levied?”

Section 1 of article 11 of the constitution of the state contains the following: “'The legislature shall provide for a uniform and equal rate of assessment and taxation.”

Paragraph 6871, General Statutes of 1889 (Gen. Stat. 1897, ch. 158, §97; Gen. Stat. 1899, §7210), provides for the assessment of the railroad property of the state for purposes of taxation.

Paragraph 6885, General Statutes of 1889 (Gen. Stat. 1897, ch. 158, §11; Gen. Stat. 1899, §7224), reads :

“The trustee of each township, by virtue of his office, shall be township assessor, and charged with the duty of listing and returning all property subject to taxation in his township in the manner provided in this act.”

Paragraph 6886, General Statutes of 1889 (Gen. Stat. 1899, §7225), reads:

“The mayor and common council of all cities of the first and second class shall, at their first regular meeting in February of each year, appoint an assessor, whose duties and powers shall be the same as prescribed by law for township assessors.” ■

Paragraphs 6921 and 6922 (Gen. Stat. 1897, ch. 158, §§92, 93; Gen. Stat. 1899, §§7262, 7263) provide for the formation and duties of a county board of equalization.

Paragraph 6927, General Statutes of 1889 (Gen. Stat. 1897, ch. 158, §127; Gen. Stat. 1899, §7268), reads’as follows :

“The state board of equalization shall consist of the secretary of state, state auditor, and state treasurer.”

The first part of paragraph 6928, General Statutes of 1889 (Gen. Stat. 1897, ch. 158, § 128; Gen; Stat. 1899, § 7269), reads as follows :

‘ ‘ It shall be the duty of said board to assemble at the state capitol on the second Wednesday in July, in the year eighteen hundred and seventy-six, and of each year thereafter, and when duly organized as hereinafter provided to then and there proceed to examine the abstracts of property assessed for taxation in the several counties of the state, including railroad property, which shall be laid before said board by the auditor of state, and shall equalize the same by directing to be added to the amount of property so assessed in each county, or to be deducted therefrom, such rate per cent, as said board may deem equitable ; but said board shall not reduce the aggregate amount.”

From this it appears to us that not only does the constitution of the state require a uniform and equal rate of assessment and taxation, but the legislature, in obedience thereto, has provided the necessary machinery and rules for accomplishing the required object, so far as the assessment is concerned, by providing (1) for the assessment of railroad property; (2) for the assessment of the property other than that of railroads in the several townships and cities of the counties of the state ; (3) for equalizing the assessment of the towDships and cities of the county; and (4) for equalizing the assessment of the various counties of the state.

Each of these provisions seems to us to be directed toward the accomplishment of the requirement of the constitution that the legislature shall provide for a uniform and equal rate of assessment of-the taxable property of the state, and does give to the state board of equalization express power to equalize the assessments of. the several counties of the state without limiting said equalization to the levies of state taxes only.

It is contended by the defendant in error that the fact that the county clerk is required by paragraph 6930, General Statutes of 1889 (Gen. Stat. 1897, ch. 158, § 130 ; Gen. Stat. 1899, §7271), to determine the rate per cent, necessary to raise the taxes required for state purposes, is an indication of a purpose to enable the county clerk indirectly to adopt the valuation- for state purposes without having actually to change the valuation as extended upon his books. The apparent force of this argument will be considerably diminished by eliminating from the report of the auditor, as it appears in the record, all parts thereof not required by law.

The concluding portion of paragraph 6928 reads :

“The said board of equalization shall apportion the amount of tax for state purposes as required by law to be raised in the state among the several counties therein, in proportion to the valuation of the taxable property therein for the year as equalized by the board.”

Paragraph 6929 provides that the auditor shall report the action of said board to the several county clerks. It will be noticed that the amount and not the rate is to be certified to the clerk.

The remaining question in this case is : Admitting that the allegations of plaintiff’s petition are true, and also that the valuation of the taxable property of the state, as equalized by the state board of equalization, is the basis upon which all taxes, state and local, should be based, is the plaintiff entitled to the injunction prayed for ? It is claimed by the defendants in error that irregularities which are not the result of fraud, and which do not require the complainant to. pay more tax than is legally due, are not a valid reason for an injunction. In support of this proposition, and also of the one hereinbefore discussed, we are referred to C. B. & Q. Rld. Co. v. Grant, 55 Kan. 386, 40 Pac. 654. The language used in this and one or two other cases in our supreme court seems to indicate views antagonistic to the conclusion hereinbefore reached upon the first question herein discussed, but that question was not at issue in those cases, and the language used was simply dictum of the justice who wrote the opinion, presumably without argument or any careful consideration of the question. In the case last cited, the valuation of the property of Norton county, other than that of railroads, was reduced by the state board of equalization twenty-one per cent., and, by order of the county commissioners, all taxes were levied upon the basis of a reduction of twenty per cent, only, instead of twenty-one, as fixed by the state board.. The concluding portion of this opinion is as follows:

“In what way was the railroad company injured? It is true a reduction in the valuation of property other than railroad property correspondinglyincreases the burden to be placed upon railroad property. A reduction of twenty-one per cent., however, was authorized by statute, and is confessedly' proper and legal. The county commissioners, it appears, ordered a reduction of only twenty per cent. The reason for making a twenty-per-cent, reduction is not shown, but it is intimated that it was done because there would be less difficulty in the making of computations, and in extending the changed valuation upon the tax-roll. However that may be, it is clear that the railroad company has no cause for complaint. The slight departure from the basis fixed by the state board resulted to the benefit of the company. If the county commissioners had heeded the objection of the company, and had corrected the error by making a reduction of twenty-one per cent., it would have enhanced the rate and amount of taxes to be charged against railroad property. It is not charged or shown that there was any bad faith or partiality in the action that was taken, and the mistake does not prejudicially affect the railroad company. An error in the assessment is no ground for interrupting the tax machinery of the county at the instance of a taxpayer who is not injured by the error. It is not enough that the taxing officers have violated or are about to depart from the strict rules of law in performance of their duties, nor will a court of equity interfere by injunction to prevent a mere theoretical injury.- The plaintiff is not authorized to institute proceedings for the protection of the public, and an injury which does not seriously affect nor injure it furnishes no ground for equitable interference.”

In the case before us the state board of equalization ordered an increase of the valuation of the taxable property of the county, other than railroads, ten per cent. This, if complied with, would have resulted in the railroad company being required to contribute a smaller proportion of the burden of the county, township, city and school-district expenses, and, under the reasoning of the supreme court above quoted, would entitle the plaintiff to the relief prayed for.

The jüdgment of the district court will be reversed, and said court directed to overrule the demurrer and proceed with the trial of the case in harmony with the views herein expressed.

McElroy, J., concurring. Mahan, P. J., dissenting. .