Appeals
from Circuit Court, Hughes County; John F. Hughes, Judge.
WHITING
J.
Plaintiff
suing in his official capacity, seeks to recover the sum of
$11,711.28-taxes levied for the year 1914 upon the property
of defendant company. Hereinafter whenever we use the term
"defendant" it shall be understood as referring to
defendant company only. The trial court entered a judgment
canceling such tax levy and the assessment upon which it was
based, reassessing defendant's property at about 40 per
cent. of the previous assessment, levying a tax of $4,450,
and adjudging that defendant pay such $4,450. Both parties
appealed-plaintiff from the whole judgment and from the order
denying a new trial, defendant from that part of the judgment
making a new assessment and levy and adjudging the payment of
the $4,450, and from the order denying a new trial.
The
assessment and levy, which were made
the basis of this action, were made by the state Tax
Commission. Its authority, if any there be, is to be found in
article 11, § 2, of the state Constitution, and in chapter
64, Laws 1907, re-enacted by chapter 347, Laws
1913-hereinafter spoken of as "chapter 64." Article
11, § 2, of the Constitution reads as follows:
Article 11, § 2. "All taxes shall be uniform on all
property and shall be levied and collected for public
purposes only. The value of each subject of taxation shall be
so fixed *** that every person and corporation shall pay a
tax in proportion to the value of his, her or its property.
Franchises and licenses to do business in the state, gross
earnings and net income, shall be considered in taxing
corporations and the power to tax corporate property shall
not be surrendered or suspended by any contract or grant to
which the state shall be a party. The Legislature shall
provide by general law for the assessing and levying of taxes
on all corporate property, as near as may be by the same
methods as are provided for assessing and levying of taxes on
individual property."
Chapter
64 is an act relating solely to the assessment and taxation
of the property of railway, telegraph, telephone, express
and sleeping car companies. Following provisions relating
solely to the taxation of the property of railway companies
and other provisions relating solely to the taxation of the
property of telephone and telegraph companies, we come to
sections 16 to 23, which contain the provisions relating
particularly to express and sleeping car companies. Those
parts of these sections which we deem material to the matters
discussed in this opinion read as follows, with the words
"tax commission" inserted in place of "board
of assessment and equalization" wherever those words
occur in such sections and the word "commission" so
inserted in place of "board:"
"Sec. 16. Express and Sleeping Car Companies-Statement
of. Every express company and every sleeping car company
doing business in this state must transmit to the auditor of
the state a statement of its business done within this state
for the year ending on the thirtieth day of April preceding,
which statement must be furnished on or before the first day
of July of each year and shall contain the following items:
First. The total number of employés engaged by such company
within the state, and the number thereof in each county.
Second. The total number of offices maintained by it within
the state, and the number thereof in each county; the value
of all office furniture, fixtures and real estate owned by it
within this state.
Third. The number of miles of railroad over which such
express or sleeping car company conducts its business within
the state, and the number of miles thereof in each county.
Fourth. The total number of express cars or sleeping coaches
owned by such company, and used within the state, and the
number of such express or sleeping cars leased and
controlled, but not owned by such company, and used within
this state, or operated under lease or contract in any
manner.
Fifth. The gross earnings of the total business of such
company transacted within this state for the year ending
April 30th preceding, and the value of all the property of
such company used in this state.
Sec. 17. Property of Express and Sleeping Car Companies-When
Assessed. *** And for the purpose of aiding the state tax
commission in assessing the value of the property of such
companies, it is hereby made the duty of the board of railway
commissioners to collect information and facts concerning the
value of the property of each express and sleeping car
company in this state and to make an estimate of said value
and to make and file with the state auditor on or before the
first day of July of each year a written and detailed report
of such information, facts and estimate.
The state tax commission shall, on the first Monday of July
each year assess all the property of every express and
sleeping car company doing business in this state and used in
the operation and maintenance of its business, and in doing
so shall take into consideration the gross earnings of said
company within the state for the year ending on the thirtieth
day of April preceding the statements made by said companies
and by the board of railway commissioners and any and all
other matters necessary to enable them to make a just and
equitable assessment of said property in the same ratio as
the property of individuals. All the statements aforesaid and
information received shall be laid before the tax commission,
which commission shall review said statement or information
and may change the valuation given or add to said statement
any property omitted therefrom, and said commission shall
levy a tax upon said property, which tax shall be equal to
the average amount of state, county, school, municipal, road,
bridge, and other local taxes levied upon other property for
the preceding year, and the auditor shall notify each company
of the amount of taxes so levied.
Sec. 18. Form of Statement. The statement of said companies
required by this act shall be made according to such forms
and instructions as may be prescribed by the state auditor
and with reference to property owned on the first day of May
of the year for which the return is made. ***
Sec. 19. Taxes-When Paid. Each express and sleeping car
company so assessed shall on or before the first day of March
of each year, pay to the state treasurer, the amount of tax
levied on its property for the year preceding, which shall be
in lieu of all other taxes.
Sec. 20. Apportionment of Taxes. The state treasurer shall
apportion the amount of taxes received under the provisions
of this act between the state and the various counties in
which such company is doing business, as herein
provided.
The amount to which each is entitled shall be determined by
the state tax commission and the county treasurer shall
distribute the portion received by his county to the various
county and local funds according to the levies made upon
other property for the preceding year.
Sec. 21. In case any telegraph, express, telephone, and
sleeping car companies doing business in this state shall
fail or neglect to pay the tax due from it to the state for a
period of thirty days after the same shall have become due,
there shall be added to such tax a penalty of twelve per
cent. per annum."
"Sec. 23. Notice. The state tax commission shall give at
least ten days' notice of the time and place of its
meeting, provided for in this article, to the officer of any
railroad, telegraph or telephone company or other corporation
making a return of the property of their company to the said
commission for the purpose of assessment and taxation, of
every increase made by said commission on the valuation of
any of the property returned as aforesaid, for the purposes
aforesaid, or of any addition made to said returns, and said
companies shall have the right to appear and be heard, before
said commission in all matters relating to the assessment of
the property of said company."
The defendant transmitted to the state auditor the report
required under section 16. The commission met at the time
fixed by section 17 for the assessing of the property of
express companies. Defendant appeared by counsel and objected
to any assessment being made in an amount greater than
$18,667.85-the amount which it had returned as the value of
its tangible property within this state. Disregarding such
protest the commission proceeded to fix a valuation on
defendant's property in this state and did fix such
valuation at $1,172,300. The commission entered upon its
minutes a record of such assessment, such record containing
an extended statement of the matters considered in arriving
at the valuation determined upon. It is apparent from such
record, and it is conceded, that the commission, in making
such assessment, purported to assess defendant's property
upon what is commonly spoken of as the "unit
basis." The commission fixed the time and
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