Cochise County v. Southern Pac. Co.
| Citation | 99 Ariz. 385,409 P.2d 549 |
| Decision Date | 12 January 1966 |
| Docket Number | No. 8662-PR,8662-PR |
| Parties | COCHISE COUNTY et al., Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellee. |
| Court | Supreme Court of Arizona |
Robert W. Pickrell, former Atty. Gen., Darrell F. Smith, Atty. Gen., Philip M. Haggerty, Asst. Atty. Gen., for appellants.
Evans, Kitchel & Jenckes, by Joseph S. Jenckes and William T. Boutell, Jr., Phoenix, for appellee.
The Southern Pacific Company, hereinafter referred to as plaintiff, brought suit in three counts. Counts one and two sought to recover taxes paid under protest for the first half of the fiscal year 1959, and to enjoin future discriminatory assessments. Plaintiff appealed from a judgment granting a motion to dismiss counts one and two of its complaint, and this case was decided separately by this court in 92 Ariz. 395, 377 P.2d 770. Count three was against the same defendants--namely nine counties in which plaintiff does business, the county assessors of said counties, individually and as assessors, and the members of the State Tax Commission, individually, as members of the State Tax Commission and as members of the State Board of Equalization.
Plaintiff is a Delaware corporation owning and operating an interstate railroad system in the State of Arizona, a portion of which is located in the respective defendant counties. Plaintiff, under count three, sued for the total sum of $24,904.92, plus interest and costs which it had paid under protest to the county treasurers of said counties. Both plaintiff and defendants moved for summary judgment. The lower court granted summary judgment in favor of plaintiff which judgment was appealed, and the Court of Appeals, Div. 1, reversed the judgment, 1 Ariz.App., 199, 401 P.2d 153. This court granted plaintiff's motion for review.
A.R.S. § 42-301 provides, in part:
A.R.S. § 15-1211 as amended, in effect in 1959-60, provided, in part:
[Emphasis added. § 15-1211 was amended in 1965 to exclude bracketed portion.]
A.R.S. § 15-1212, in effect in 1959 and 1960, provided, in part:
'B. Apportionments of the state school fund shall be made on the second Monday in July, October, January and April and, as nearly as possible, shall equal one fourth of the amount to be apportioned during the fiscal year. The superintendent of public instruction shall furnish the treasurer and the school superintendent of each county an abstract of the apportionment, and shall certify the apportionment to the state auditor, who shall draw his warrant in favor of the county treasurer of each county for the amount apportioned thereto. Upon receipt of the warrant the county treasurer shall notify the county superintendent that the amount thereof, together with any other monies standing to the credit of the county school fund, is subject to apportionment as prescribed by law. 1
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In the case of Long v. Dick, 87 Ariz. 25, 347 P.2d 581, 80 A.L.R.2d 949, petitioner Robert H. Long brought the following action:
'Petitioner, a resident of Maricopa County, Arizona, and a real property taxpayer in the Buckeye Union High School District, filed this original application in mandamus to compel respondent, the State Superintendent of Public Instruction, to compute the pupils in high school districts by actual attendance, and to certify and apportion monies in the state school fund to the respective counties in accordance therewith.' 87 Ariz., at 26, 347 P.2d, at 582.
We then set forth the reasons why this petition should be granted, and held:
'For the foregoing reasons, it is directed that the peremptory writ of mandamus issue.' 87 Ariz., at 29, 347 P.2d, at 584.
In that case we recognized the duty of the superintendent of public instruction to compute the average daily attendance for high school students and to certify that number to the state board of equalization, and we set forth the basis for the computation.
In the instant case, which was brought in January 1960, after the decision in Long v. Dick, supra, decided in December of 1959, it is alleged that the state board of equalization purportedly acted pursuant to A.R.S. § 15-1211 and A.R.S. § 15-1212, and that the figure of $10,115,170.00, the needed allocation for high school students, as set forth was incorrect in that it included a sum of $170.00 per student for average daily high school attendance in the amount of 59,501 students, which had been computed by the superintendent of public instruction upon the basis of enrollment, or membership, in high schools, whereas it should have been based upon actual attendance in the number of 56,001, which would have made the amount of state taxes $1.6590 per $100.00 assessed valuation rather than $1.70 for $100.00 assessed valuation, and that this actually increased the taxes of plaintiff in the amount for which sued.
Mr. W. E. Bissett, secretary of the state tax commission and the state board of equalization, whose deposition 'was taken as an adverse party deposition' by the plaintiff, testified that the computation of 59,501 was taken from the certification of W. W. Dick, superintendent of public instruction. It does not appear from the depositions or the records in this case that the board of equalization had any information other than that contained in the certification of the records of the average daily attendance of pupils eligible for state aid in the Arizona public schools as furnished to the state board of equalization.
The deposition of G. W. Harrell, director of research and finance for the state board of public instruction, which also was 'taken as an adverse party deposition,' was to the effect that the figure of 59,501 was based upon enrollment rather than actual attendance, and there was attached to his deposition as plaintiff's exhibit the certification of the average daily attendance of students eligible for state aid in Arizona public schools, giving the figure of 59,501 for high schools. At no place in the certification does the method appear upon which the total number was based, nor does it appear from the records or in the depositions that the board of equalization had any knowledge of the basis of the computation used by the superintendent of public instruction in arriving at 59,501.
The state board of equalization, on the basis of this certification and in accordance with provisions of A.R.S. § 42-301, in the August meeting fixed the tax rate at $1.70 per $100 valuation, which it determined was sufficient to raise the $10,115,170.00 needed for high schools. The superintendent of public instruction filed a corrected certification on April 11, 1960, in accordance with the decision of this court in Long v. Dick, supra, listing the average daily attendance of high school students at 56,173, and the total allocation for high school students at $9,549,410.00.
The records and decision of this court on the first two counts--Southern Pacific Company v. Cochise County, 92 Ariz. 395, 377 P.2d 770--show that plaintiff appeared before the board of equalization and objected to the value of its property as assessed, stating that it was discriminatory, and requested that the board of equalization equalize the assessment either by lowering it to the average of other properties or raising other assessments to full cash value. But at no time did plaintiff object to the method of determining the average daily high school attendance by the superintendent of public instruction, as certified to the state board of equalization, or to the amount to be levied therefor. The record shows that payments made to respective high school districts were on the basis of the corrected number of average daily attendance certified by the superintendent of public instruction, and that the money received as a result of the difference between these rates went into the general fund as surplus. W. E. Bissett, secretary to the state tax commission and the state board of equalization, testified by deposition that pursuant to A.R.S. § 42-301, subsec. B a surplus at the end of the fiscal year is carried over to reduce the property tax rate for the subsequent year. Hence, in the instant case the sums of money unexpended for school purposes--being money derived from taxes paid by all taxpayers--necessarily resulted in a reduction of the property taxes to all taxpayers, including plaintiff.
The question then is whether, under these facts, plaintiff is entitled to judgment against the counties, the assessors, the state tax commission, and the state board of equalization for the amount of the tax.
A.R.S. § 42-341 provides, in part:
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