Commercial Elec. Light & Power Co. v. Judson
| Decision Date | 06 April 1899 |
| Citation | 56 P. 829,21 Wash. 49 |
| Court | Washington Supreme Court |
| Parties | COMMERCIAL ELECTRIC LIGHT & POWER CO. v. JUDSON, County Treasurer, et al. |
Appeal from superior court, Pierce county; Thomas Carroll, Judge.
Action by the Commercial Electric Light & Power Company against Stephen Judson, treasurer of Pierce county, and Pierce county. Judgment for plaintiff, and defendants appeal. Reversed.
A. R Titlow, for appellants.
Stiles & Nash, for appellee.
Action by plaintiff, a private corporation, against defendants, to recover the sum of $553.99, claimed to have been illegally exacted for taxes upon the property of plaintiff for the year 1897, which taxes were paid under protest after seizure of property under a tax warrant. Plaintiff alleges two sums were illegally exacted,--one a tax of $132.50 on the franchise of the corporation; and an excessive tax of $421.49, arising from over assessment of plaintiff's personal property without any opportunity for a hearing having been given before the board of equalization provided for by law. Plaintiff conceded that it ought to pay a tax on a valuation of $11,068 of $293.30, but alleged an excess exacted of $553.99. The case was tried by the court, and the material facts found are substantially that upon the 1st of March, 1897, plaintiff was the owner of personal property in Tacoma, which it duly listed as of the value of $11,068, but that the value of the personal property of plaintiff was largely in excess of that sum; that the county assessor assessed and valued the personal property of the plaintiff at the sum of $30,350, which included the valuation upon the franchise owned by the plaintiff at the sum of $5,000; that the plaintiff was the owner of a franchise granted by the city of Tacoma of the right to use the streets, highways alleys, and avenues of the city over which to transmit and convey power and light to its customers, and the rights appertaining thereto; that about the 7th of August, 1897 plaintiff delivered to and filed with the auditor of Pierce county, as clerk of the board of equalization, its petition in writing, praying the board to reduce the assessments so made by the assessor to the sum of $11,068, and also praying that the item, 'franchise assessed at $5,000' be stricken off the assessment of plaintiff's property on the ground that the same was illegal and double taxation, and the further reason that the franchises of other corporations of like character were not assessed in the county and state; and in said petition also prayed a hearing, that a time be fixed by the board, and that at the hearing part of the city council of the city of Tacoma, it being a city of the first class, should sit as a part of the board of equalization. The court also found that franchises of other like corporations and persons were assessed in the county, and equalized by the board of equalization, and that there was no unjust discrimination in this regard against plaintiff, and that the county board of equalization for the year 1897 was composed of the three county commissioners, who duly qualified as members of such board; that the city council of the city of Tacoma appointed three members of the council to sit as a board of equalization during the year, but that the parties so appointed, and each of them, failed to present themselves or their credentials to the auditor of Pierce county, the clerk of the board of equalization, to offer to qualify and sit as members of the board, or as part thereof; that the petition of the plaintiff for reduction of its assessment as made by the county assessor was duly denied by the board of equalization; that the board thereafter duly notified plaintiff that its assessment would be raised from the amount fixed by the assessor to the sum of $31,973, unless plaintiff showed cause why it should not be raised in accordance with the notice; that the board at the hearing found that the value of the property was the sum of $31,973, and equalized its value at that amount; and that the board of equalization at said time was duly organized. The court also found that no members of the city council of Tacoma sat as members of the board of equalization for the year 1897 for property within the city of Tacoma, but that three members of the city council appeared on the 4th of August, 1897, before the board, and in response to an interrogation as to their sitting as members of the board the chairman of the board as then organized replied that he thought the board of equalization was then legally organized, and denied the members of the council the right to sit. The complaint alleges no fraud on the part of the assessor or the board of equalization as constituted for the year 1897, and no evidence was introduced in support of any fraud committed by the assessor or the board in fixing the valuation of the property of plaintiff. The court, as legal conclusions, determined that the assessment for the taxation of plaintiff's property for the year 1897 as to the franchise valued at the sum of $5,000 was void, for the reason that franchises were not subject to taxation under the laws of this state, and that as to the balance of the property it was legally assessed and equalized; that plaintiff, by its appearance before the board of equalization without objection, in response to the notice to show cause why its assessment should not be raised, and failing to object at that time to the legality of the board, if any objection existed, waived its right to object to the board as then constituted, and that the failure of the members of the city council to appear and qualify or offer to qualify in no way affected the legality of the board of equalization as then constituted, and a decree was entered in favor of plaintiff for $132.50, with interest, on account of the tax collected upon the franchise. Both plaintiff and defendants excepted to the judgment,--the plaintiff to the allowance of any tax, and the defendants to the judgment for recovery of $132.50, amount collected as tax on the franchise.
1. The findings of fact made by the superior court seem to be sustained by the evidence. The suggestion of discrimination in the assessment of the franchise of plaintiff, if true, might be answered by a reference to the revenue laws and the provision for the assessment of property which has been omitted from the tax roll. But the court has found that such discrimination did not, in fact, exist. It is not competent for plaintiff to make a collateral attack here upon the composition of the board of equalization. Upon notice duly given from the board, it appeared, and was heard upon the valuation of its property fixed by the assessor, and raised no objection to the manner in which the board was constituted; and therefore we think the equalization of the assessment was properly made, and, in the absence of any allegation of fraud, such equalization of the value of personal property is conclusive.
2. The important question is brought here by defendants. The superior court concluded that a franchise was not subject to taxation under the laws of this state. The state constitution (article 7, § 1) declares: 'All property in the state not exempt under the laws of the United States, or under this constitution, shall be taxed in proportion to its value, to be ascertained as...
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... ... Under ... state's sovereign power to tax, it may lawfully tax all ... property within state ... commerce carrying passengers, baggage and light express, but ... no freight, from Birmingham, Alabama, on ... 135, 63 P. 1123, ... following Commercial Electric Light & P. Co. v ... Judson, 21 Wash. 49, 56 P ... ...
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