173 F. 456 (8th Cir. 1909), Atchison, T. & S.F. Ry. Co. v. Sullivan

Citation:173 F. 456
Party Name:ATCHISON, T. & S.F. RY. CO. v. SULLIVAN, County Treasurer, et al.
Case Date:September 23, 1909
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 456

173 F. 456 (8th Cir. 1909)

ATCHISON, T. & S.F. RY. CO.

v.

SULLIVAN, County Treasurer, et al.

United States Court of Appeals, Eighth Circuit.

September 23, 1909

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Page 458

Henry T. Rogers and Gardiner Lathrop (Daniel B. Ellis, Lewis B. Johnson, Pierpont Fuller, and George A. H. Fraser, on the brief), for appellant.

Jesse G. Northcutt and Allen M. Lambright (A. Watson McHendrie, on the brief), for appellees.

Before SANBORN, Circuit Judge, and CARLAND and POLLOCK, District judges.

SANBORN, Circuit Judge.

This is an appeal from a decree which dismissed a bill in equity, exhibited to prevent the treasurer of Bent

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county, in the state of Colorado, from collecting of the complainant taxes which it alleged were illegal and excessive. The Constitution of that state required taxes to be uniform upon the same class of subjects (article 10, Sec. 3), and the statutes required all taxable property to be assessed at its full cash value. The State Board of Equalization was required to assess the railroad property of each railroad company in the state as a unit and to apportion the assessment to the counties of the state on a mileage basis, the assessor of each county was required to assess other taxable property in his county, and these two assessments were placed upon the tax lists and subjected to the same levies. Mills' Ann. St. Rev. Supp. Secs. 3764, 3895, 3918, 3920.

The gravamen of the bill was (1) that while the complainant's property in Bent county in 1905 was not worth more than $25,000 per mile and the State Board assessed it $14,800 per mile, or 55 per cent. of its value, the assessor of Bent county assessed other taxable property in that county at not more than 25 per cent. of its actual value; that this assessor omitted from his assessment all credits, all watches, clocks, and jewelry, and much other property taxable in that county, with the knowledge and consent of the other county officials; that he did so pursuant to a rule adopted by the county officers, and did so systematically and intentionally, in order to make the complainant pay a larger tax in proportion to the value of its property than others who had taxable property in that county would pay; and (2) that the State Board transmitted to the county an assessed value of $14,800 per mile of complainant's railroad, when the proportion of the assessed value of its property in the state which the board was required by the statutes to certify to that county was $14,385.28 per mile.

The treasurer of the county admitted by his answer that the assessed value certified to the county by the State Board was excessive to the amount of $414.72 per mile, as averred in the second complaint recited above, and the effect of his admission was that the complainant's tax was excessive on this account to the amount of $676.78. The treasurer denied that the assessor of Bent county knowingly or willfully omitted to assess credits, watches, jewelry, and other property; but he did not deny, and hence he admitted, that the assessor did omit to assess them. He denied that the assessor assessed the property in his county 'so low as 25 per cent. of its actual cash value,' and hence be admitted that the assessor did assess it as low as 26 per cent. of its actual value. He denied that the assessor made the omissions and the low assessment in collusion with the county commissioners, or systematically, or with intent to impose an undue burden of taxation upon the complainant, and he averred that the county officers discharged their duties in good faith to the best of their judgment and ability. He admitted that the State Board assessed the complainant's property in Bent county at $14,800 per mile, but denied that it was assessed any higher in proportion to its actual value than other property in Bent county was.

The complainant introduced evidence which tended to prove systematic omissions and undervaluations by the assessor, and to avoid the effect of that evidence the treasurer invoked the rule that where

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the determination of an issue of fact, or of mixed law and fact, like that relative to the valuation of property for taxation, is intrusted by law to the judgment of an officer or board, his or its decision raises something more than the mere presumption of fact, and it may not be overthrown without more than the testimony of two or three witnesses to the contrary. Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U.S. 421, 435, 436, 14 Sup.Ct. 1114, 38 L.Ed. 1031; Adams Express Company v. Ohio State Auditor, 165 U.S. 194, 229, 17 Sup.Ct. 305, 41 L.Ed. 683. The treasurer introduced evidence which tended to show that the actual value of complainant's property in Bent county was more than $25,000 per mile, and to avoid the effect of that evidence the complainant invoked the same rule; but each party was estopped by his pleading from availing himself of the benefit of this rule in the case in hand. The treasurer could not rely upon it to sustain the assessment of the county assessor, because he had admitted in his pleading that his assessment was only 26 per cent. of the actual value of the property. The complainant could not invoke it successfully to sustain the assessment of its property in Bent county at only $14,800 per mile by the board, because it had admitted in its complaint that the actual value of its property was $25,000 per mile. The rule is inapplicable to this case, and its consideration is here dismissed.

Counsel for the complainant argue that the treasurer admitted by his answer that the board assessed its property at its actual cash value; but a careful analysis of the answer has convinced that the fair and true construction of it is that the treasurer admitted that the board assessed that property $14,800 per mile, but averred that it was worth more than $25,000 per mile, and that it was not assessed higher in proportion to its actual value than was the other taxable property in the county.

The statutes required the board to assess the railroad property, and they required the assessor to assess the other taxable property in the county, at its actual value. They were required to assess the property within their respective jurisdictions independently, without conference or consultation with each other, at times when they could not know that either had made or would make an assessment on any other than the lawful basis, the basis of the actual value of the property. The only safeguard against injustice, the only surety for impartiality and uniformity, at this point in the taxing proceedings, was assessments at the actual value of the property. For, if either the board or the assessor varied from this standard, the assessments could seldom fail to be partial and unjust. In the absence of all evidence, the pleadings alone establish the facts that the assessor disregarded this law and assessed the taxable property subject to his jurisdiction at 26 per cent. of its actual value, and that the board disregarded the law and assessed the property within its jurisdiction at less than 60 per cent. of its actual value. In this state of the law and of the pleadings, the assessments, though competent, were not even persuasive, evidence of the actual value of any of the property, nor of uniformity of assessment, and these issues were open to proof by the preponderance of other evidence.

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The evidence relative to these matters is voluminous, and a digest or review of it here would be useless. Suffice it to say that it satisfactorily establishes these facts: The assessor of Bent county omitted to assess watches, clocks, jewelry, credits, and more than 100,000 sheep taxable in his county. He assessed the taxable property which he did list at between 25 per cent. and 33 1/3 per cent. of its actual value. The evidence does not disclose more accurately the exact per cent. which his assessment was of the real value of the property he assessed. The county commissioners of the county of Bent knew that he had made his assessment at about 33 1/3 per cent. of the actual value of the property he listed, and that he had omitted some of the taxable property, and they silently acquiesced in this course. It was, and had been for many years, the rule and the settled policy and practice of these local taxing officers to violate the law and assess the taxable property in that county within their jurisdiction at about one-third of its actual value. The assessor actually intended to assess the property he listed upon that basis. He testified, however, and the truth of this statement must be conceded, that he did not have any actual intent or purpose to impose an undue burden upon the complainant or upon railroad property. His acts, nevertheless, were in violation of the statute, their natural and inevitable effect was to diminish the burden of taxation upon the property within his jurisdiction and to increase it upon the railroad property, and, however innocent in actual intent he may have been, his acts were as injurious to the owners of railroad property as if he had actually intended to discriminate against them, and the law conclusively presumes that he intended the natural and inevitable effect of his deeds. It was not necessary to the complainant's cause of action that the assessor or the county commissioners should have had any actual intention to increase unduly the complainant's share of the burden of taxation. It was sufficient to sustain its cause that they intended to disregard the law, and that the natural and inevitable effect of that violation was the increase of its share of the burden. Taylor v. Louisville & N.R. Co., 31 C.C.A. 537, 559, 88 F. 350, 372.

These facts leave no doubt that the taxing officers of Bent county adopted a rule pursuant...

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