Chicago & N. W. Ry. Co. v. Schmidt

• Citation: 85 S.D. 223,180 N.W.2d 233
• Decision Date: 07 October 1970
• Docket Number: Nos. 10721,10752,s. 10721
• Parties: Appeal of CHICAGO AND NORTH WESTERN RAILWAY COMPANY from the decision of the State Board of Equalization, Chicago and North Western Railway Company, a corporation, Respondent, v. Lowell SCHMIDT et al., Appellant. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. Selma ASPER, as County Treasurer of Lincoln County, Defendant-Respondent.
• Court: Supreme Court of South Dakota

Page 233

180 N.W.2d 233

85 S.D. 223

Appeal of CHICAGO AND NORTH WESTERN RAILWAY COMPANY from the

decision of the State Board of Equalization,

Chicago and North Western Railway

Company, a corporation, Respondent, v. Lowell SCHMIDT et al., Appellant.

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. Selma ASPER, as County Treasurer of Lincoln County,

Defendant-Respondent.

Nos. 10721, 10752.

Supreme Court of South Dakota.

Oct. 7, 1970.

M. T. Woods, Woods, Fuller, Shultz & Smith, Sioux Falls, for the Chicago and North Western Railway Co.

Gordon Mydland, Atty. Gen., John Dewell, Asst. Atty. Gen., Pierre, for Lowell Schmidt, and others, and Selma Asper, County Treasurer, Lincoln County.

HOMEYER, Judge.

These related appeals involve litigation which twice before has been in this court for review. Chicago and North Western Railway Company v. Gillis, 82 S.D. 470, 148 N.W.2d 581 and 83 S.D. 332, 159 N.W.2d 293. The reported opinions show an over-assessment of the operating property of the railway company for the year 1963 resulting in excessive taxes. The narrow question for decision is whether such company is entitled to interest on the amount paid on the over-assessment and, if so, the procedure applicable.

The railway company owns property in 41 counties in South Dakota. Before the taxes were delinquent it paid such taxes under protest with notice and commenced separate actions to recover the excessive taxes against the treasurer in each county as provided by SDCL 10--27--2.

In our opinion the railway company's right to interest is controlled by the decision of this court in Chicago, St. P., M. & O. Ry. Co. v. Mundt, 56 S.D. 530, 229 N.W. 394 and we are not persuaded to depart from that precedent or its reasoning. Some effort has been made towards distinguishing the cases. We fail to see any substantial difference and none which we feel should cause us to overrule that decision. Consequently, we hold the railway company was entitled to interest on the amounts due it from the date of payment.

The railroad's operating property was assessed by the Department of Revenue and protest was made before the state board of equalization. SDCL 10--28--16. That board equalized the assessment and the railroad appealed to the circuit court. SDCL 10--38--4, 10--11--43 and 7--8--27. Our decisions supra were on appeals from judgments of the circuit court. ¹

It appears the trial court pursuant to the remands fixed and determined the taxable value of the operating property for the year 1963 and directed certification of appropriate proportions to the various counties. When computed, the county treasurers tendered refunds based on such valuations without interest, which the railway company refused to accept. The Commissioner of Revenue then moved the court in the valuation proceeding for an order that such refunds be made without interest. On May 13, 1969, the court entered a Supplement to Judgment requiring interest to be paid on the tax refunds from the date of payment. The Commissioner has appealed from this determination.

On June 13, 1969, the complaint was filed in the action to recover the excessive tax involved in Appeal No. 10752. ² Among other things it alleged there was due the plaintiff-appellant upon over-payment of the 1963 taxes the sum of $263.46, which had been tendered without interest, and asked judgment for that amount plus interest from date of payment and costs. The answer pleaded the proceedings in the prior appeals and the defense of res judicata because of the Supplement to Judgment allowing the railway company interest mentioned supra and asked that the complaint be dismissed. ³

Defendant-respondent's motion to dismiss contained in the answer was heard upon notice given by the plaintiff. The court granted the motion on the basis that the relief sought had been granted in prior valuation proceedings when the court entered its Supplement to Judgment allowing interest. The plaintiff has appealed from the Order of Dismissal.

Under our statute, SDCL 7--8--30, appeals from county board of equalization to the circuit court, Williams v. Stanley County, 69 S.D. 118, 7 N.W.2d 148, In re Robinson, 73 S.D. 580, 46 N.W.2d 908, and from the state board to the circuit court, Chicago and North Western Railway Company v. Gillis, 82 S.D. 470, 148 N.W.2d 581, are heard and determined...