Dickinson v. Housley

• Decision Date: 09 July 1917
• Docket Number: 96
• Citation: 197 S.W. 25,130 Ark. 259
• Parties: DICKINSON, RECEIVER CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. HOUSLEY
• Court: Arkansas Supreme Court

197 S.W. 25

130 Ark. 259

DICKINSON, RECEIVER CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. HOUSLEY

No. 96

Supreme Court of Arkansas

July 9, 1917

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed.

Judgment reversed and cause remanded.

T. S Buzbee, H. T. Harrison and C. L. Johnson, for appellant.

1. This suit was instituted in the proper forum. It is different from 30 Ark. 275 and 113 Id. 138. It is in the nature of a suit for money had and received.

2. The action of the county court in raising the assessment certified out by the State Tax Commission was illegal and void. Const., art. 16, § 5, Act 257, Acts 1909, Act 251 Acts 1911. The legislative will is supreme. The county board of equalization was without authority of law to raise the valuation certified by the Tax Commission. The power to assess railroad property is conferred upon the State Tax Commission, and it alone has the power. 127 Ark. 349.

Gibson Witt, for appellee.

1. This is merely a collateral attack upon the judgment of the United States District Court.

2. Under article 7, section 46, Constitution, only the assessor can assess property for taxation. Other agencies may be constituted by the Legislature to aid the assessor, but the assessor makes the assessment. Kirby's Digest, § 6970; 1 Desty on Taxation, p. 581; 49 Ark. 526; 92 Id. 493; 64 Id. 436.

2. When the Tax Commission certifies its findings of value to the assessor, its authority ends. Only the assessor can assess. The tax must be uniform and coextensive with the territory to which it applies. 11 Enc. U. S. S.Ct. 382; 101 U.S. 153.

3. The case in 192 S.W. 202 is not parallel. The United States District Court had jurisdiction, and it can not be questioned. Only void judgments can be impeached collaterally. 46 Ark. 502. If appellant was entitled to any relief he should have gone to the Federal court. 11 A. & E Ann. Cas. 744. The State court had no jurisdiction. 32 Ark. 676.

OPINION

MCCULLOCH, C. J.

This is an action instituted by the receiver of the Chicago, Rock Island & Pacific Railway Company against the tax collector of Garland County to recover taxes alleged to have been assessed in excess of the amount legally authorized, which were paid to the collector under protest. The cause was heard upon an agreed statement of facts, and the court rendered judgment in favor of the defendant, from which the plaintiff has prosecuted an appeal.

The facts, as recited in the agreement, are that the State Tax Commission assessed the property of the railroad for the taxes of 1916 and certified to the assessor of Garland County the apportionment to that county of its part of the aggregate value of the railroad and the assessor of Garland County entered the same upon the tax books, but subsequently the board of equalization raised the assessment for county purposes and road and bridge purposes 50 per cent. of the value as certified by the State Tax Commission. In other words, the State Tax Commission apportioned to Garland County the value of the railroad property amounting to $ 189,957, which was entered on the tax books by the assessor, but the board of equalization raised the value to $ 284,953, and the taxes were extended on the last mentioned valuation fixed by the board of equalization. The receiver of the company applied to the collector to pay the taxes according to the valuation made and apportioned by the State Tax Commission, but the collector refused to accept the amount and the receiver paid the full amount demanded under protest, and brings this suit to recover the amount paid in excess of the amount extended according to the value fixed by the State Tax Commission.

It is agreed that the money was in the hands of the tax collector at the time of the commencement of the suit and was retained by him to await the final decision in the cause, so, if it be found that the amount demanded by the collector was in excess of the legal amount of taxes due on the property, the plaintiff is entitled to recover. Sanders v. Simmons, 30 Ark. 274; First National Bank of Fort Smith v. Norris, 113 Ark. 138, 167 S.W. 481.

The validity of the increase of the assessment is sought to be sustained under authority of a judgment of the United States District Court for the Western Division of the Eastern District of Arkansas in an action instituted by one of the creditors of Garland County against the assessor and board of equalization of that county, commanding those officers to assess all property in the county at its true value in money. The judgment of the Federal court was rendered by consent of the parties thereto. The members of the State Tax Commission were not parties to that action. Conceding, without deciding that a judgment of that kind against the assessor and board of...