Board of County Com'rs of Shawnee County v. Brookover

• Decision Date: 21 January 1967
• Docket Number: No. 44534,44534
• Citation: 422 P.2d 906,198 Kan. 70
• Parties: BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas, Darold D. Main, Chairman, and John R. Hiller and Richard B. Hanger, Members, Appellants, v. Sam BROOKOVER, Robert E. Lee Graham, Perry Owsley and George D. Wagstaff, Members of the State Board of Tax Appeals and the Board's Attorney-Secretary, Appellees.
• Court: Kansas Supreme Court

Page 906

422 P.2d 906

198 Kan. 70

BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas Darold D. Main, Chairman, and John R. Hiller and Richard B. Hanger, Members, Appellants, v.Sam BROOKOVER, Robert E. Lee Graham, Perry Owsley and George D. Wagstaff, Members of the State Board of Tax Appeals and the Board'sAttorney-Secretary, Appellees.

No. 44534.

Supreme Court of Kansas.

Jan. 21, 1967.

Syllabus by the Court

1.Where there is no right of appeal from an order of an administrative board judicial redress for illegal, fraudulent or oppressive conduct may be invoked through one of the appropriate extraordinary legal remedies consisting of injunction, mandamus or quo warranto.

2.The entire matter of taxation is legislative and does not exist apart from statute, and the assessment and valuation of property has always been considered an incident to the taxing power.

3.The legislature is specifically charged by the Constitution of the State of Kansas(Art. 11, § 1) with providing an equal rate of assessment and it has the authority to provide the means and agencies for enforcing its responsibility.

4.Matters of valuation and assessment are administrative in character and a determination of the Board of Tax Appeals acting within its legislative authority, when fairly and honestly made, is final, and courts will not interfere so as to usurp the board's function or substitute their judgment for that of the board.

5.In the absence of substantial evidence to the contrary it will be presumed that the Board of Tax Appeals responsible for the reappraisal of property for taxation purposes acted in good faith.

6.The inclusion of an alleged error in the statement of points is a prerequisite to its consideration on appeal.(Supreme Court Rule 6(d), 191 Kan. XIV.)

7.Generally in an extraordinary proceeding charging an administrative board with arbitrary and capricious conduct based on the contention the order is contrary to the evidence, the nature of the board's conduct is not to be determined by extraneous evidence not presented at the hearing before the board for its consideration.

8.When in an extraordinary proceeding the order of an administrative board is challenged for misconduct extraneous to the issues considered by the board, extrinsic evidence is admissible to prove or refute the charge.

9.A predetermination of an issue is not indicated because an administrative board makes an informal preliminary investigation before calling a formal hearing.

10.Ratio studies provided for by K.S.A. 79-1436 may properly be considered in determining the necessity for a reappraisal to arrive at a justifiable value for tax purposes as provided by K.S.A. 79-1439.

11.The purpose of both the old appraisal law and the new law (K.S.A. 79-501) was to arrive at a fair and equitable value of property for taxation and there is no great difference between 'justifiable value,''actual value in money' and 'true value in money.'

12.The state as a whole comprises a taxing unit for the purpose of levy and collection of state general taxes and the constitutional requirement of uniformity requires equality of assessment therein.

13.The 'public interest' to be promoted by the reappraisal of property for taxation is not limited to equality within county lines but extends to all of the property within the state.

14.It is for the legislature, not the courts, to determine as a matter of policy how, when and under what circumstances an appraisal of property shall be made for tax equalization purposes including the cost thereof.

15.The record is examined in an action challenging the validity of an order of the Board of Tax Appeals directing a reappraisal of property for tax purposes and substantial competent evidence is found to support the trial court's conclusion that the board acted honestly and free from capricious, arbitrary, oppressive or unreasonable conduct.

Sard Fleeker, Topeka, argued the cause and was on the briefs for appellants.

L. M. Cornish, Jr., Topeka, argued the cause, and Ralph F. Glenn, Jan W. Leuenberger, M. D. Bartlow and Edward B. Soule, Topeka, were with him on the briefs for appellees.

HATCHER, Commissioner.

This is an appeal from an order of the district court denying the Board of County Commissioners of Shawnee County, Kansas injunctive relief from an order of the Board of Tax Appeals of the State of Kansas directing a reappraisal of all the taxable real estate in Shawnee County.

There is no serious dispute as to the facts material to the issues to be determined.

On April 20, 1965, on complaint of a resident and taxpayer of Shawnee County, the Board of Tax Appeals issued an order to the County Board of Equalization of Shawnee County to appear on April 28, 1965, to show cause, if any it had, why it should not be directed to reappraise all taxable real estate in the county, which is subject to a general property tax, uniformly and equally at thirty percent (30%) of its justifiable value pursuant to K.S.A. 79-1439.

Following the hearing, which was conducted at some length, the Board of Tax Appeals on May 12, 1965, entered its order which reads in part as follows:

'The assessment of taxable real estate in Shawnee County, Kansas, is not in substantial compliance with law and that the interest of the public will be promoted by reappraisal of such property.

'NOW, THEREFOR, IT IS BY THE BOARD OF TAX APPEALS OF THE STATE OF KANSAS ORDERED that the Board of County Commissioners of Shawnee County, Kansas, shall designate a person or persons, with the approval of the State Board of Tax Appeals, to reappraise all taxable real estate in Shawnee County, Kansas at thirty percent (30%) of its justifiable value in accordance with the law.

'IT IS FURTHER ORDERED that the name or names of such persons or persons so designated by the Board of County Commissioners be submitted in writing to the State Board of Tax Appeals for approval on or before June 30, 1965.'

There being no remedy by appeal from such an order, the Board of County Commissioners of Shawnee County filed a petition for injunction in the district court of such county alleging that the board's order was not supported by the evidence and constituted an act that was arbitrary, capricious, oppressive, illegal and so grossly contrary to the public interest as to constitute a constructive fraud.The prayer was for the usual injunctive relief.

A temporary injunction was granted pending the trial of the issues in the district court.At the conclusion of the trial the court found:

'* * * the defendants have in all matters herein considered acted honestly and in good faith and free from any capricious, arbitrary, oppressive or unreasonable conduct.'

Judgment was for defendants.

An exhaustive and comprehensive memorandum opinion was also filed.

The plaintiffs have appealed alleging numerous trial errors.

A brief discussion of the power of courts to review and control administrative orders of tax boards or commissions may tend to answer many of the issues raised by appellants.

Appellees do not dispute the appellants' contention that there is no right of appeal from the order in question.There being no right of appeal, judicial redress for illegal, fraudulent or oppressive conduct by the administrative board may be invoked through one of the appropriate extraordinary legal remedies consisting of injunction, mandamus or quo warranto.(State, ex rel. Goodell v. Davis, 144 Kan. 708, 710, 62 P.2d 893;City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P.2d 29.)

The entire matter of taxation is legislative and does not exist apart from statute.(Ness County v. Light & Ice Co., 110 Kan. 501, 204 P. 536;Board of County Com'rs of Crawford County v. Radley et al., 134 Kan. 704, 8 P.2d 386;Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P.2d 925;Ray v. Board of County Comm'rs, 173 Kan. 859, 252 P.2d 899.)The assessment and valuation of property has always been considered an incident to the taxing power.(Auditor of State v. Atchison, T. & S. F. R. Co., 6 Kan. 500;Comm'rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 160, 34 P. 416.)

The Constitution of the State of Kansas provides:

'The legislature shall provide for a uniform and equal rate of assessment and taxation * * *.'(Art. 11, § 1.)

As the power of taxation is a legislative function and the legislature is specifically charged with providing an equal rate of assessment it also has the authority to provide the means and agencies for enforcing its responsibility.(Silven v. Osage County, 76 Kan. 687, 689, 92 P. 604.)The legislature has spoken on the matter of valuation and assessment.K.S.A. 79-1439 provides:

'From and after January 1, 1964, all real and tangible personal property which is subject to general property taxes shall be assessed uniformly and equally at thirty percent (30%) of its justifiable value, as hereinafter defined and provided.'

The legislature also provided when a reappraisal of properties within a county should be made.K.S.A. 79-1413a reads in part:

'Whenever, upon complaint made to the state board of tax appeals by the county assessor, or by any deputy assessor, or by the director of property valuation, or by the board of county commissioners, or by any property taxpayer, and a summary proceeding in that behalf had, it shall be made to appear to the satisfaction of said state board that the assessment of taxable real estate and tangible personal property in any county is not in substantial compliance with law, and that the interest of the public will be promoted by a reappraisal of such property, said board of tax appeals shall order a reappraisal of all or any part of the taxable property in such district * * *'

Matters of valuation and assessment are administrative in character and a determination of the Board of Tax Appeals acting within its legislative authority, when fairly and honestly made, is final and courts will not interfere...