Chicago, B. & Q. R. Co. v. Bruch, 3268

CourtUnited States State Supreme Court of Wyoming
Citation400 P.2d 494
Docket NumberNo. 3268,3268
PartiesCHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a corporation, Appellant (Plaintiff below), v. Albert P. BRUCH, Walter W. Hudson, Richard J. Luman, Francis Hillard, and Zan Lewis, constituting the State Board of Equalization of the State of Wyoming, Appellees (Defendants below).
Decision Date23 March 1965

R. T. Cubbage and C. W. Krohl, Chicago, Ill., Henderson, Godfrey, Kline & Uchner, David D. Uchner, Cheyenne, W. L. Peck and J. C. Street, Denver, Colo., for appellant.

John F. Raper, Atty. Gen., A. Fred Miller, Sp., Asst. Atty. Gen., Cheyenne, for appellees.

Before PARKER, C. J., and HARNSBERGER and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

The Chicago, Burlington & Quincy Railroad Company, a corporation, appeals from a judgment of the district court affirming an order of the State Board of Equalization fixing, for taxation purposes, the 1962 value of appellant's Wyoming properties at the sum of $20,719,660.

The appellant has moved to strike certain appendices attached to appellees' brief, namely Appendix A, which consists of excerpts from minutes of the board; Appendix B, a schedule of the tonnage handled by appellant each year from 1933 to 1963, inclusive, as shown by its annual reports to the Wyoming Public Service Commission; Appendix C, a schedule showing permile roadway valuation of appellant's property in one Wyoming county for years from 1919 to 1964, inclusive; Appendix F, a listing of certain of appellant's depots and section houses; Appendix G, a schedule showing the number of miles in which various weight classes of rails are used; Appendix H, a 1961 statistical abstract of the United States, showing the purchasing power of the dollar, 1940 to 1960; Appendix I, a schedule taken in part from appellant's annual reports to the Wyoming Public Service Commission and in part from 'official records' of the State Board of Equalization, showing book values of appellant's road and equipment properties in years 1957 to 1961, inclusive; Appendix J, a schedule listing unidentified road and equipment properties; Appendices K and L, schedules showing Interstate Commerce Commission's cost of reproduction figures at 1961-period prices of Class-1 railways with specific reference to Chicago and North West, C. B. & Quincy, Col. and Sou., Colo. and Wyo and Union Pacific; and Appendix M, a schedule listing unidentified trackages in various states.

We note, however, that appellees' brief identifies Appendix J as showing appellant's property and Appendix M as being a listing of appellant's trackage.

Appellant's motion to strike is also directed against certain comments and various other statements incorporated in appellees' brief, but those comments and statements are nothing more than expressions of the writers' opinion.

Appellant's attack upon the above-designated appendices involves the question of what this court should take into account when called upon to consider the legality and correctness of a district court's judgment when sitting as an appellate tribunal upon an appeal from an administrative body.

Previous opinions of this court have indicated that upon appeal to the district court from administrative orders and decisions only matters adduced before that agency may be considered, although, when necessary, evidence bearing solely upon the question of alleged fraud, undue influence, et cetera, may be received.

It is therefore necessary for an appealing party to bring to the district court the entire record of the proceedings which were had before the administrative body, and, if a transcript of the testimony and evidence is not available or is deemed to be insufficient, the appellant must establish the deficiency by other proof. Ordinarily this brings to the attention of the district court all the evidence upon which the administrative body acted and which might justify its decision. But there are some meterial differences between the functioning of the divers administrative authorities. In one class are proceedings where there are contesting parties. In another, are proceedings where there is no contest. In the first instance, the proceeding is adversary. In the second it is not. In the first, the parties to the contest are pitted against each other. In the second the government, as represented by the administrative agency, is not against anyone. In consequence, the proceeding in the latter type of case is more in the nature of an inquiry to enable the administrative agency to arrive at a just and fair determination. The fact that the conclusion reached by the governmental agency is unsatisfactory to the party affected and an appeal is taken to the courts does not alter the situation.

This difference has bearing upon the question of what the administrative agency may take or was privileged to take into consideration in arriving at a conclusion. Similarly, it has bearing upon what should be brought before the district court when it is called upon to evaluate the correctness and the propriety of the administrative agency's action or decisions.

Although it is quite possible that certain of the material contained in the appendices to the brief may have been admissible in the hearing before the board by way of judicial notice, sometimes called official or administrative notice, 2 Am.Jur.2d, Administrative Law, § 385, pp. 191-192; 73 C.J.S. Public Administrative Bodies and Procedure § 123, pp. 442, 444; Annotation, 18 A.L.R.2d 552, 573, the district court could not have based its determination of the correctness of the board's decision upon the assumption that the board had such knowledge or had such information before it.

In Bunten v. Rock Springs Grazing Ass'n, 29 Wyo. 461, 215 P. 244, this court said it was not necessary for the State Board of Equalization to act only upon evidence produced before it, thus implying that the board might take into account matters which were within its knowledge even though they did not appear as evidence. But in passing upon appellant's motion to strike we are not dealing with the propriety of the State Board of Equalization having considered historical matter, information, or material within the knowledge of its members but which did not appear in the record of its proceedings as sent to the district court nor adduced by evidence in that court. We are concerned only with matters brought to the attention of the district court and which that court had opportunity to consider when ruling upon the propriety of the administrative authority's determination of the taxable value of appellant's properties in Wyoming.

Under the authority of Bunten, when the appeal from the board's decision was teken to the district court, opportunity was present to produce before the court evidence of all the material, knowledge and information which the administrative agency had considered in arriving at is conclusion. Therefore, if such matter was not placed before the district court so that it might have considered the same, we may not consider it in judging the legality and correctness of the district court's affirming action. Insofar as the criticized appendices are concerned, this was not done. Neither does it appear that their subject matter was incorporated in any official report of the State Board of Equalization and offered in evidence for judicial notice under the provisions of §§ 1-166 and 1-167, W.S.1957. Perhaps the district court could have taken judicial notice of certain of the matters now sought to be included by the board, if this had been called to its attention, but we will not judicially notice them when they are advanced for the first time upon appeal to this court.

As the sole issue now before us is the correctness of the district court's decision, we will examine only that which the district court had before it. Natural Gas Consumers of Rock Springs, Wyoming v. Northern Utilities Co. of Casper, 70 Wyo. 225, 247 P.2d 767, 779; Chittim v. Belle Fourche Bentonite Products Co., 60 Wyo. 235, 149 P.2d 142; Claughton v. Johnson, 47 Wyo. 447, 38 P.2d 612, 614, rehearing denied 47 Wyo. 536, 41 P.2d 527; Mercer v. Thorley, 48 Wyo. 141, 43 P.2d 692, 696; Gore v. John, 61 Wyo. 246, 157 P.2d 552, 556. It follows that appellant's motion to strike the appendices, which were not brought to the attention of the district court, is granted, and their contents will not be considered.

Although the railroad company suggests the fundamental question presented by its appeal is 'how should an interstate railroad be valued and assessed for tax purposes?' the proper inquiry here is whether the district court erred in failing to find, under the evidence before it and matter judicially noticed, that the board's action was either arbitrary, capricious, despotic, or fraudulent. In other words, Did the board act with illegal impropriety?

At the outset of the hearing upon the railroad company's appeal from the decision of the State Board of Equalization, the district court made it plain that the hearing before it would not be a trial de novo; that questions of whether the unit system comes under Wyoming law or whether there are better ways for valuing the railroad company's property than that used by the board were immaterial. So also upon the appeal to this court questions of the merit of the unit system or the merits of any other method of assessing valuation for tax purposes are also immaterial.

As pointed out in discussing appellant's motion to strike certain 'appendices' to appellees' brief, the district court's action affirming the order of the board must be judged in the light of the testimony and evidence submitted to the court on appeal having in mind previous decisions of this court regarding the prerogatives of an administrative agency to utilize knowledge acquired during its functioning and in performing its duties. By those decisions the district court was informed that although Wyoming law...

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