Baken Park, Inc. v. Pennington County

• Decision Date: 12 June 1961
• Docket Number: No. 9848,9848
• Citation: 109 N.W.2d 898,79 S.D. 156
• Parties: BAKEN PARK, INC., Appellant, v. COUNTY OF PENNINGTON, Respondent. In the Matter of the Appeal of Baken Park, Inc., a Corporation.
• Court: South Dakota Supreme Court

Page 898

109 N.W.2d 898

79 S.D. 156

BAKEN PARK, INC., Appellant, v. COUNTY OF PENNINGTON, Respondent.

In the Matter of the Appeal of Baken Park, Inc., a

Corporation.

No. 9848.

Supreme Court of South Dakota.

June 12, 1961.

Bottum & Beal, Rapid City, for appellant.

James H. Wilson, States Atty., Rapid City, for respondent.

BIEGELMEIER, Judge.

Appellant is the owner of a tract of land in Rapid City about two miles from the downtown shopping area upon which a shopping center named Baken Park is located. The city assessor fixed the value of the real estate at $495,860 for 1958; by appeal it reached the circuit court which found that value in excess of full and true value and determined it to be $333,000. Appellant agrees this value to be within the range of evidence before the trial court, and bases its appeal on the ground discrimination exists as the value determined by the trial court is the full, true or 100% value; that other similar property is assessed at 65.62% of such value and when the 60% factor for tax purposes is applied as directed by SDC 1960 Supp. 57.0334, it will pay taxes on 60% of value while other similar property will pay taxes on 39.37% of value; that taxes levied thereon would not be uniform as required by the state constitution. In support of this feature of its claim, appellant offered certain exhibits in evidence, which respondent stipulated were correct, but objected to on other grounds. While the trial court reserved a ruling, it considered and included some of the evidence in these exhibits in the findings of fact. In response to the appellant's claim of error in not admitting the exhibits, respondent states appellant is estopped to base error on this point because the court impliedly ruled in its favor by its conduct including them in its findings. They will be presumed to have been received in evidence. These exhibits are compiled in an appendix to appellant's brief and indicate that the assessor had fixed a value of $3,779,150 for nearly 300 downtown business lots of a market value of $5,789,000. Appellant computes the assessor's value as 65.62% of the market value; that taking 60% of this as provided by SDC 1960 Supp. 57.0334 results in the downtown business lots having a value for tax purposes of 39.37%. The trial court's Finding V in effect approves these figures. Both of these percentage figures are in conformity with the testimony of the County Director of Equalization that the assessed value of business lots in Rapid City for 1958 was some 42% of true values. Respondent attempts to discount his testimony for the reason he had made only a few ratio studies (See Hansen v. Wilder, 76 S.D. 438, 80 N.W.2d 306); however, the State Division of Taxation made a separate ratio study and the County Director in a report to the Pennington County Board of Equalization advised it of the 42% figure. The trial court took cognizance of this disparity in Findings of Fact V and VI:

'That there is a discrimination made by the City Assesor in fixing the appraised value of various and different tracts of land in Rapid City, South Dakota, but there is no consistency from which there can be determined a general tendency to assess at any certain percentage of full and true value, as is illustrated by evidence showing that of 278 business lots in the City of Rapid City, the value set by the Assessor on the land alone before applying the 60% factor varied from 131% of full and true value to 13.3% of full and true value, as shown by competent undisputed evidence.

'That the evidence fails to show that any general percentage of full and true value was applied to any substantial number of the lots or tracts of land within the City of Rapid City, or that similar or comparable lots, tracts, or parcels of land were generally valued for assessment purposes at any consistent or near consistent percentage of full and true value.'

Respondent county concedes, as indeed it must from the record and court findings, that a comparison between the 278 lots in the downtown business area and lots in the outlying business area similar to appellant's property, indicates that the downtown area is apparently being favored by taxing authorities; that these outlying business properties are 'carrying their full share of the tax load' and the 'arithmetical median in the downtown business group falls in the 65% group', that median 'in the outlying business area (which includes appellant) falls in the 100% group'. It argues, however, if appellant were to be granted relief, and leave the other outlying lots assessed at 100% of their value, there would be manifestly an unfair result. The answer to this is only the Baken Park property is involved in this proceeding and a court cannot deny relief to one who is vigilant because others sleep on their rights and waive their objections by failing to appeal. Williams v. Stanley County, 69 S.D. 118, 123, 7 N.W.2d 148, 151. Indicative of its importance, the uniformity and equality of taxation required by law is preferred over the standard of true value, when both cannot be secured. Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L.R. 979. In Chicago, R. I. & P. Ry. Co. v. Young, 60 S.D. 291, 244 N.W. 370, 372, this court wrote:

'Where the unlawful discrimination results from valuing the property of one taxpayer proportionately higher than that of others, the rate levied against all being the same, the remedy almost universally given to the taxpayer against whom the discrimination exists is to reduce his valuation to the same percentage of true value used in the case of those in whose favor the discrimination was granted and compute his tax accordingly.'

Respondent quotes and agrees with this language but claims that it is impossible to ascertain from the evidence the percentage of the full and true value used by the assessing authorities for 'taxpayers not discriminated against'. The record and findings show discrimination existed between the valuations of downtown business lots and the Baken real estate; that, as heretofore set out, the value for tax purposes on the former was about 40% of its true value and the latter 60% thereof. The result was discrimination and lack of uniformity required by Art. XI, Sec. 2 of the Constitution which provides '* * * Taxes shall be uniform on all property of the same class. * * *'. The evidence introduced related to similar property, that is, real estate used for business purposes. The vice of the situation is in compelling one taxpayer to pay more than his proper proportion of the total tax as compared with others similarly situated. Chicago, R. I. & P. Ry. Co. v. Young, supra. We note in passing that SDC 57.0406 cited by respondent and dealing with the powers of the county board of equalization then included the requirement of 'gross' inequality to mean the assessing at a 'much' higher amount than 'adjoining' property; it was amended in 1957 by omitting the quoted words. Respondent's argument based on these now absent requirements of the former statute does not apply to the present controversy.

Under SDC 57.0401, as amended by Ch. 459, Laws of 1953, it is the duty of the local board to see that all taxable property 'has been duly valued by the assessor'. Ch. 475, Laws of 1953, now SDC 1960 Supp. 57.0406-1, grants independent authority to the board of county commissioners to make adjustments and reassessments and is not applicable here. In 1957, SDC 57.0406 was amended as noted above. Authority is there given to 'correct * * * inequalities * * * within [an] assessment district', if the property is assessed at a higher or lower amount than other property 'in the same assessment district.' It further provides 'No individual assessment shall be raised without notice in advance to such resident * * *'. SDC 57.0409 states that a person may apply to the county board for the correction of any errors in the 'valuation of his property * * * and the board may correct the same as shall be just.' Surely the local board has authority to change the individual taxpayer's valuation and on appeal the county board has the same authority or an appeal would be an ineffectual and useless act.

Appeals from decisions of a county board of equalization to the circuit court are permitted by SDC 1960 Supp. 57.0411 and 'shall be heard and conducted and determined as provided in SDC 12.0620'. That section states in part 'All appeals thus taken * * * shall be heard and determined de novo. The Circuit Court may make a final judgment and cause the same to be executed or may send the same bank to the board of county commissioners with an order how to proceed * * *'. The court has had occasion to consider tax assessment appeals in Williams v. Stanley County, supra; In re Robinson, 73 S.D. 580, 46 N.W.2d 908 and Sheraton-Midcontinent Corporation v. Pennington County, 77 S.D. 554, 95 N.W.2d 892. We see no reason to depart from them. Compare certiorari remedy problem considered in Central Cheese Co. v. City of Marshfield, Wis., 109 N.W.2d 75.

If discrimination exists the remedy of the taxpayer is the reduction of his valuation to such amount as may be necessary to remove it. In re Appeals of Jepsen, 76 S.D. 421, 80 N.W.2d 76. This court has recognized that perfect uniformity of taxation is a dream unrealized and exact uniformity or mathematical accuracy in valuations are impossible, yet quoted with approval a statement to assess the property of one person or class at 40%, another at 30% and still another at 25% without legislation under appropriate constitutional authority to so classify was the result of deliberation or intention. Sioux Falls Savings Bank v. Minnehaha County, 29 S.D. 146, 165, 135 N.W. 689, 693. Constitutional uniformity is then lacking. Chicago, R. I. & P. Ry. Co. v. Young, 60 S.D. 291, 244 N.W. 370. The record here shows more than mathematical inaccuracy. It was not necessary to prove the basis used in assessing...