Union Pacific Railway Co. v. Ryan , 2 Wyo. 391 ( 1881 )

Sener, C. J.

This was a suit in chancery instituted by the complainants against the defendants in the court below to restrain them from the collection of certain taxes claimed by the city of Cheyenne for the year 1880. , The complainant- asserts several grounds of equitable relief: First, it claims there was nú lawful assessment of that portion of the complainant’s property constituting its road-bed, right of way, superstructure, structures thereon, rolling stock, telegraph line, furniture and fixtures and personal property belonging to the appellee, who was the complainant below, the assessment being made by the city assessor, while it is claimed that it should have been made by the territorial assessment board, under the act approved December 13, 1879, of the Territorial Legislature of Wyoming, entitled “ An act in relation to the assessment of railways and telegraph lines.” Second, that in any event the so-called city assessor had no authority to make said assessment, no such office as city assessor having been provided for by the charter of said city. Third, that the assessment of the complainant’s property upon which the tax claimed was levied, was grossly unfair, unjust and unequal, and was fraudulently made, with a fraudulent purpose and intent to make the complainant pay an unjust and undue proportion of the taxes collected in said city, all of which was done with a feeling of prejudice and hostility to the complainant. Fourth, that a portion of the taxes so claimed was levied upon a large amount of property not belonging to the complainant, but to another corporation, — the Colorado Central Railroad Company of Wyoming, which property last named was not in the jurisdiction of the city of Cheyenne.

To the bill of complaint filed by complainant, the defendants demurred:

1. To so much of the bill as relates to all the taxes complained of, except those claimed on account of the Colorado Central Railroad Company, on the ground that the complainant was not entitled to any discovery or relief.

2. To that portion of the bill relating to the assessment of the property of the Colorado Central Railroad Company, and the taxes levied upon the same, on the ground that the complainant was entitled neither to discovery, nor relief by reason of the facts stated.

The district court for the first judicial district, Judge Peck presiding, having heard the case upon said bill of complaint and demurrer, entered a final decree thereon, adjudging the assessments complained of and all proceedings thereon null and void, and perpetually enjoined the defendant from attempting to collect the taxes levied thereon. The appellants appeal from said decree in its entirety, and not from any part of it.

The appellants concede that the decree is proper, and no contest is made as to the part of the bill relating to the taxation of the Colorado Central Railroad Company.

The first question which presents itself for determination by this court is: whether the city of Cheyenne for the purposes of municipal taxation had the right to assess the property of the appellee situated within its corporate limits in the same manner as other property in the city is assessed according to the provisions of the charter which gives it power to levy and collect taxes for general revenue purposes on all real, personal and mixed property within the limits of said city, taxable under the laws of the Territory, according to the terms of its charter as found in the Session Laws 1877, pages 40-41, or whether an act of the general assembly of 1879, passed on the 13th day of December of that year, to take effect on the 1st of January, 1880, in relation to the assessment of railways and telegraph lines, repealed the charter of the city of Cheyenne to that extent, and cast upon the territorial board of equalization, consist-' ing of the governor, territorial treasurer and auditor, the duty of fixing the value of the property of railroad corporations for each mile of road or line, and thereafter required all assessments of railroad and telegraph property to be made in conformity with the value as ascertained by this board of equalization.

In our opinion the statement in the syllabus of Mayor &c. of Troy v. The Mutual Bank, 20 New York, 387, that “ the system of taxation for municipal purposes is distinct and independent of that for county and state purposes,” is not only sound law, but sound common sense. And this line of deinar Ration runs through all the legislation of the various states as well as of the Territory of Wyoming. An inspection of the 6th chapter of the Laws of Wyoming, passed at its sixth legislative assembly, on page 13 of those laws, shows that the governor, the territorial treasurer and auditor, are made a board of equalization evidently for the purposes of having uniformity in the assessment and taxation of railroad and telegraph lines within the several organized counties, and for county and territorial purposes; only, and that that act in no wise worked or intended to work a repeal of the charter of the city of Cheyenne which was granted by the legislature in 1877. That act shows what the board was to do; that act prescribes what the president, secretary, superintendent or other principal accounting officers should do; it speaks of the duty of the assessor of the county or district, evidently meaning the district in the county in which machine or repair shops, or other buildings should be; it prescribes when it shall be done; it specifies that the territorial auditor shall certify to the county clerks of the several counties in which the property of the corporation, or any part thereof may be situated, the assessment so made of the property of such corporation, specifying the number of miles, and amount of each in said counties; and then the county commissioners are directed to divide and adjust the number of miles within each precinct, township or school district, in their respective counties; and then it goes on to give the county commissioners power to levy the requisite tax: all of which shows that the act was intended to affect county organizations, and not particular municipalities or municipal corporations. The county commissioners have no control over the cities. It may happen, and does happen, that the county commissioners are not citizens of the corporations; it could happen that every one óf the county commissioners might be citizens outside of the jurisdictional limits of ■Cheyenne; and while it would be in the power of the general assembly of Wyoming by an express statute to confer the government of the municipality of Cheyenne upon any body that it saw fit, yet with a granted charter before it, this court cannot presume that county commissioners are clothed with any power or authority over the city of Cheyenne from that act. The only thing that gives color, or can be construed or suggested as giving this authority is the use for the first time in this Territory in a taxing act of the word “ precinct; ” and this it is seriously claimed may mean an organized municipal corporation.

Now, “precinct,” according to Webster, means, “a district within certain boundaries,” and in Massachusetts by old laws it had reference to the non-acceptance by the collector of the parish or precinct, and authorized the parish to proceed to a new choice. Bouvier says: “In old times it related to the district for which a high or petty constable is appointed in England ; ” and with this use of the word in modern acceptation it has been argued before the court that it-may mean, and is intended to embrace and include, a repeal of the power of the city of Cheyenne to levy and assess taxes, as given to it by its charter, and to cast that burden on a board made up as before stated.

We do not think that such is the meaning, nor do we think any elaborate argument is necessary in stating it. If it be contended that the word township can be so construed as to mean an incorporated city, we answer, first, that no such ground was taken in argument at bar, and secondly, that township has a well defined meaning. Vide Abbott’s Law Dictionary, viz. “ a township is a' sub-division of a county for county purposes, more highly organized than a village, and less so than an incorporated city.” The term “ township ” in cases there cited shows it never means an incorporated city. Of course there can be no pretence that Cheyenne of itself is a school district of Laramie county in any sense. The whole act from the first to the sixth section has reference to the uniformity of assessments and taxation for' territorial and county purposes, and has no reference in our view to city purposes.

This brings us to the second proposition, to wit, did the city of Cheyenne assess the property as it had the right to do. Inasmuch as the complainant alleges that the board of equalization for the city acted fraudulently, it is not within our power to say, (inasmuch as the demurrer admits all that the complainant states), that the tax has been regularly assessed; but in so far as the question is raised as to the right of the city assessor to mate said assessment, no such officer as city assessor having been provided for by the charter of said city, we answer that by the tenth section of the act of the incorporation of the city of Cheyenne, passed December 14th 1877, laws of the 5th legislative assembly, beginning page 37, the city is provided among other officers with a clerk: and by section thirty it is enacted that the dúties, powers and privileges of all the officers connected with the city government, not herein defined, shall be defined by ordinance of the city counsel; and by an ordinance of said city as enacted February 4th, 1879, (of which this court takes judicial cognizance the published ordinances in printed form being before it,) vide 30th sub-division, 2d section, Act to incorporate city of Cheyenne, approved Dec. 14th, 1877, page 46, the city clerk is made ex officio city assessor; and this not only follows the law of the Territory, but follows the decision of the Mayor, etc. of Hoboken v. Harrison, Harp and Walker in the 30 New Jersey.

It is in the power of the council by ordinance to direct the mode and manner of the assessment and collection of its taxes; hence it results that where a power is given to a council to levy and collect taxes, and no officer is provided in a charter, as a necessary consequence that the right to levy and collect taxes would carry with it the power and authority to employ the necessary machinery for that purpose. Having ascertained this much, we find the pretended city assessor, as the complainant describes him, had the authority to mate the assessment complained of.

The third allegation of the complainants’ bill: that the assessment of the complainants’ property, upon which the tax claimed was levied, was grossly unfair, .unjust and unequal, etc., being admitted by the demurrer we cannot do more here now than to lay down this proposition, which is sanctioned and sustained by all the decisions, that before the complainant can have or ought to have any standing in a court of equity to make such an assertion the complainant should pay what is due. This is laid down in Heine v. The Levee Commissioners, 19 Wallace, 655; by the Alabama Cold Life Insurance Company v. Lott, Tax Collector, 54 Alabama, 499; in 24 Michigan in Merrill v. Humphreys, 170; in 83 Ill., The Pacific Hotel Company v. Lieb et al., 602; 2 Otto, 575, State Railroad Tax Cases. Now the complainant alleges in its bill of complaint that it tendered what was due, to wit, the sum of 363.40. Even if the territorial board had had the authority to have made the assessment for the city of Cheyenne, of the property of the Union Pacific Railway Co. in and within the city of Cheyenne for city purposes, by the complainants’ own bill this was insufficient, and was not the amount due. Complainant admits in its complaint that it owns within the city two and two-tenths miles; that it owns a branch road of one mile, making three and two-tenths; and it owns the property of the Denver Pacific Railroad, half a mile, which makes three and seven-tenths miles: whereas in its summary in the concluding part of its bill, in which it puts the amount that it is justly assessable with under its theory of the law at $29,600 (besides its real' estate valued at $2,000 by its statement), which is the assessment for three and two-tenths miles, and not for three and seven-tenths miles as it admits in the opening part of its complaint: so that even upon its own theory of the law, and its own theory of its liability to assessment, it had not paid or offered to pay, when this bill was brought, what was due by the tax on four thousand six hundred and twenty-five dollars ($4,625) at eleven and a half mills, the city rate, would be $53.18; and by the complainants’ own showing this amount was then due and payable, and should have been paid as a condition precedent to an injunction; and if the city' clerk, acting as city assessor, had the right to assess the complainants’ property subject to the authority and control of the council to correct and equalize said assessments, of course a large amount would be due and owing as by complainants’ own statements is shown in its allegations as to over-assessments: and this sum should be paid as a condition precedent to the awarding of any injunction to restrain whatever may be illegal and fraudulent as in complainants’ bill is charged.

But the complainant alleges that the city council, acting as a board of equalization, ■ unlawfully, wrongfully and fraudulently did preteud to correct and equalize the said assessment, as returned to it by said John K. Jeffrey, so that the same as equalized and corrected by said city council was as follows: 2 miles main track, road-bed, etc., $8,000 per mile, $16,000; 6 miles side track, $5,500 per mile, $83,000; leaving all other items in the said assessment to stand as returned by John K. Jeffrey; and they corrected and equalized the property formerly belonging to the Denver Pacific Railway and Telegraph Company: so the passenger depot was assessed at $600; the rolling stock, proportional value in Cheyenne terminus, $17,000 ; leaving all other items of the assessment as made by J. K. Jeffrey. Now upon an inspection it will be seen that Jeffrey, as assessor, had put down four miles of main track at $8,000, and four miles of side-track at $4,500. The full assessment of the eight miles by Jeffrey’s assessment was $50,000: as equalized and returned by the council it was $49,000. The complainant claims that the council acted unlawfully, wrongfully and fraudulently, and yet mates no such allegation as to Jeffrey; and if the complainants’ allegations are true, and for all the purposes of this consideration, standing upon a demurrer, it must be so considered, it will be seen that the city council absolutely reduced the assessment 11,000 on these eight miles: so that the assessment as unlawful, wrongful and fraudulent as plaintiffs claim it to have been, corrected and equalized by the city council wás absolutely reduced $1,000. On the Denver Pacific the wooden passenger depot was put down at $800 by Jeffrey, and reduced to $600 by the city council; whereas the rolling stock, proportional valpe in Cheyenne was put down by Jeffrey at $10,000, and by the council raised to $17,000, an excess of $7,000: so that putting" one against the other it will be seen that the increase by the council over Jeffrey’s assessment was the sum of $5,800. Now, as the complainant alleges that this'was done unlawfully, wrongfully and fraudulently,, and inasmuch as it is conceded that' there was no authority to assess the property of the Colorado Central to the Union Pacific Railway Company, and as the demurrer, for all purposes of this case so admits, — yet, as-the bill on its face shows that the complainant has not paid the taxes fairly conceded, or shown to be due to entitle it to be heard in a court of equity, and as it may have a case, upon a proper bill for relief in equity, — whilst this bill, in our opinion, will have to be dismissed, and the injunction awarded will have ’ to be annulled and set aside, yet in doing so the court will follow the supreme court of Michigan in Merrill v. Humphrey, 24th Mich., page 170, while ordering the decree of the court below to be reversed and the injunction to be dissolved, but the bill is to be dismissed without prejudice. The appellants to have their costs in both courts.

Decree reversed.