Challiss v. Rigg

• Decision Date: 11 June 1892
• Citation: 30 P. 190,49 Kan. 119
• Parties: L. C. CHALLISS et al. v. T. J. RIGG, as Treasurer of Atchison County, et al
• Court: Kansas Supreme Court

30 P. 190

49 Kan. 119

L. C. CHALLISS et al. v. T. J. RIGG, as Treasurer of Atchison County, et al

Supreme Court of Kansas

June 11, 1892

Error from Atchison District Court.

INJUNCTION to restrain certain tax sales. The opinion states the facts.

Judgment affirmed.

Bailey & Baldwin, J. F. Tufts, and Smith & Solomon, for plaintiffs in error:

1. The order of the board of equalization increasing the assessments in question is ultra vires. The board exceeded its authority and usurped the functions of the assessors. This order is not an act of equalization, but of assessment. Sections 73 and 74, chapter 107, Gen. Stat. of 1889, create and define the duties of the board of equalization. It is not intended that their duties and those of the assessors should conflict. It was not intended that the board should usurp the office of the assessor. And it was well said by this court in Pomeroy Coal Co. v. Emlen, 44 Kan. 121, that "an examination of these two sections will disclose that the word 'assessment' is not to be found therein." And again, in the same opinion the court says: "The statutes point out the mode by which both real and personal property are to be assessed, and by whom the assessment is to be made but nowhere do they in any way authorize the county commissioners, sitting as a board of equalization, to act as assessors." In the case just cited the board both listed and valued the property assessed. We now assert that the assessor must both list and value the property. If either of his prerogatives is taken from him, then to that extent there has been no lawful assessment. In Pomeroy Coal Co. v. Emlen 44 Kan. 121, this court has indicated its views of the duties of the board of equalization. See, also, Suydam v. County of Merrick, 27 N.W. 142.

2. This order of the board of equalization is farcical on its face. It is only necessary to read it to discover its insincerity. What possible knowledge could the board have had that every piece and parcel of property in the city of Atchison was assessed 61 per cent. less than the basis agreed upon, or in Shannon township 24 per cent.? This the order presumes. Can it be supposed that they were acquainted with each lot? What wonderful discernment enabled them to arrive at this particular number, 61? Equalizing presumes a comparison. It would puzzle the profoundest philosopher to establish a comparison between the valuations of town lots and farm property. It would give a mathematician the nightmare to figure out how adding 61 per cent. to the total valuation of a precinct would enable him to find a "happy medium." Observe, also, the punctilious care with which the per cent. is figured out. Sixty per cent. would not suffice, it must be 61. Twenty-five per cent. would be too large; it must only be 24. And then, to complete the subterfuge and lend a mock air of justice to the whole farce the board rebukes poor Walnut township also, saying:

"Nay, if the scale do turn But in the estimation of a hair," and gravely adds 1 1/2 per cent. to its valuation also. And this is called equalization!

3. The order of the board of equalization upon which the increase of valuation is made is invalid and unlawful on its face. Gen. Stat. of 1889, chapter 107, § 74; Shawnee County v. Carter, 2 Kan. 128; Schettler v. City of Fort Howard, 43 Wis. 48; Hersey v. Board of Supervisors, 37 id. 75. The order of the board of equalization, which is now brought in question, says in plain language that these per cents. are added to the valuation of the real estate in the city and townships named in order that they may be "assessed upon the basis of 25 per cent. of actual cash value," as agreed upon by the assessors.

It has been claimed that, by the authority of Gillett v. Treasurer of Lyon Co., 30 Kan. 166, this order should stand, because it was an attempt to enforce an agreement "upon an equal basis of valuation." To this it is sufficient to answer, that there can be no equal basis of valuation for real estate except "the true value in money." Section 58 of the chapter on taxation, under the supposed authority of which the board presumes to make this order, applies only to personal property, and the board, in attempting to enforce the equal basis of valuation adopted by the assessors, if any was adopted, countenanced an attempt to do that which the assessors could not do. Neither will the decision of this court in the case of Adams v. Beman, 10 Kan. 38, save this order. In that case the plaintiff's property was assessed at its true value in money.

4. The fourth reason urged for a reversal of the ruling of the district court sustaining the demurrer is, in substance, that the raise of 61 per cent. in the valuation of city property made the valuation of such property excessive and unjust, as compared with the real estate of the county of Atchison outside of the city, and is an unjust discrimination against the city of Atchison.

5. The order of the board pretending to sit as a board of equalization, is invalid, because it was not made at the proper time, as indicated by the statute. The statute should be strictly construed. Cooley, Tax., p. 266. When a certain time is fixed by the statute for the meeting of a board of review or equalization, no other time will suffice. Cooley, Tax., pp. 364-6; Calhoun v. Coe, 57 N.H. 569.

W. D. Gilbert, city attorney, for defendant in error City of Atchison.

W. T. Bland, county attorney, for defendants in error other than City of Atchison:

This court has, in several different cases, substantially decided and settled the principles involved in the case at bar. Fields v. Russell, 38 Kan. 720; Ritchie v. Mulvane, 39 id. 251. Wherein does the first case above cited differ from the case at bar, and why would the order in the former case not be equally farcical on its face with the order in the latter? It may be asserted that the Fields case related to personal property; at least, it was so suggested by opposing counsel in the court below. If so, we reply, in the language of this court, that there can be no difference in principle; "the law as to personal property being now the same as it is in regard to real property." For a full discussion of the right of the board of equalization to raise or lower the valuation of personal and real property, see Gillett v. Treasurer of Lyon Co., 30 Kan. 166, et seq. It will be noticed that, in the case just cited, the complaint was that the board of equalization raised the valuation as returned by the assessors of certain townships to the basis of valuation as agreed upon by all the assessors, said agreement evidently being observed by the assessors of those townships which were not disturbed. Precisely the same condition of facts exists in the case at bar.

The Nebraska decision of Suydam v. County of Merrick, 27 N.W. 142, is wholly inapplicable, for the reason that it is based upon a statute which declared that the board of equalization should "in no instance reduce the aggregate valuation of all the townships, precincts and districts below the aggregate valuation thereof as made by the assessors, neither shall it increase the aggregate valuation of all the townships, precincts, or districts, except in such an amount as may be actually necessary and incidental to a proper and just equalization." Id. 144.

Our position is, that in the absence of any limitation upon county boards of equalization, the legislature plainly intended that such boards might raise (or lower) valuations, although the ultimate effect would result in raising the aggregate valuation, if, in the judgment and discretion of the board, such action were necessary in order to equalize between taxable districts, and at the same time collect the proper amount of taxes, which could not be done if certain townships were reduced in arriving at an equalization.

Plaintiffs in error in their brief quote from Pomeroy Coal Co. v. Emlen, 44 Kan. 117, certain extracts, as though applicable to the case at bar; but the language quoted was used by the court in passing upon an action of the board of equalization, whereby the board actually, so the court declared the record of its proceedings and evidence established, added omitted property not listed, thereby making a new assessment, an act clearly unauthorized on the part of the board of equalization. But it is absurd to claim that the action of the board in the case under consideration is of similar character. There was no omitted real estate added, but the valuation of the very real estate which had been listed in the different taxable districts was simply raised, by adding a certain per cent. to the valuation in each district, in order to make the valuations conform to a uniform basis, such an action being of the very purpose and object for which the statute created the board of equalization, and in no sense whatever could such an action be called a new assessment. We not only assert that the Pomeroy case, supra, is not against our position, but it unquestionably sustains it and quotes approvingly the Gillett case, supra, being one of the cases upon which we strongly rely.

This court, in Adams v. Beman, 10 Kan. 44, commenting upon Dean v Gleason, 16 Wis. 2, 18, say: "It is even admitted that the illegal valuation of property at only one-third of its true value would not invalidate the taxes founded thereon, if all the property was so illegally valued or assessed, for then the proportion of taxes that each person ought to pay would still be preserved." In the Adams case, the records showed that the assessors met and agreed upon one-third value as the basis of valuation for all personal property in the county, except moneys, credits, and shares in national banks, which they assessed at their full value; and, also, that the assessors...