Ewert v. Taylor

• Court: South Dakota Supreme Court
• Writing for the Court: WHITING, J.
• Citation: Ewert v. Taylor, 38 S. D. 124, 160 N. W. 797 (S.D. 1916)
• Decision Date: 30 December 1916
• Docket Number: 4066,4067. [*]
• Parties: EWERT, State Treasurer, v. TAYLOR et al. (two cases).

160 N.W. 797

38 S.D. 124

EWERT, State Treasurer, v. TAYLOR et al. (two cases).

Nos. 4066, 4067. ^[*]

Supreme Court of South Dakota

December 30, 1916

Appeals from Circuit Court, Hughes County; John F. Hughes, Judge.

Proceeding to enforce a tax levy by Adolph W. Ewert, as Treasurer of the State of South Dakota, against George C. Taylor, individually and as president of the American Express Company, and the American Express Company. From a judgment canceling a tax levy and reassessing defendant's property, and from the order denying a new trial, plaintiff appeals, and from that part of the judgment making a new assessment, and from the order denying a new trial, defendant appeals. Reversed, with directions to dismiss.

Bailey & Voorhees, of Sioux Falls (Carter, Ledyard & Milburn, of New York City, of counsel), for appellants.

Clarence C. Caldwell, Atty. Gen., and Byron S. Payne, Asst. Atty Gen., for respondent.

WHITING J.

Plaintiff suing in his official capacity, seeks to recover the sum of $11,711.28-taxes levied for the year 1914 upon the property of defendant company. Hereinafter whenever we use the term "defendant" it shall be understood as referring to defendant company only. The trial court entered a judgment canceling such tax levy and the assessment upon which it was based, reassessing defendant's property at about 40 per cent. of the previous assessment, levying a tax of $4,450, and adjudging that defendant pay such $4,450. Both parties appealed-plaintiff from the whole judgment and from the order denying a new trial, defendant from that part of the judgment making a new assessment and levy and adjudging the payment of the $4,450, and from the order denying a new trial.

The assessment and levy, which were made the basis of this action, were made by the state Tax Commission. Its authority, if any there be, is to be found in article 11, § 2, of the state Constitution, and in chapter 64, Laws 1907, re-enacted by chapter 347, Laws 1913-hereinafter spoken of as "chapter 64." Article 11, § 2, of the Constitution reads as follows:

Article 11, § 2. "All taxes shall be uniform on all property and shall be levied and collected for public purposes only. The value of each subject of taxation shall be so fixed *** that every person and corporation shall pay a tax in proportion to the value of his, her or its property. Franchises and licenses to do business in the state, gross earnings and net income, shall be considered in taxing corporations and the power to tax corporate property shall not be surrendered or suspended by any contract or grant to which the state shall be a party. The Legislature shall provide by general law for the assessing and levying of taxes on all corporate property, as near as may be by the same methods as are provided for assessing and levying of taxes on individual property."

Chapter 64 is an act relating solely to the assessment and taxation of the property of railway, telegraph, telephone, express and sleeping car companies. Following provisions relating solely to the taxation of the property of railway companies and other provisions relating solely to the taxation of the property of telephone and telegraph companies, we come to sections 16 to 23, which contain the provisions relating particularly to express and sleeping car companies. Those parts of these sections which we deem material to the matters discussed in this opinion read as follows, with the words "tax commission" inserted in place of "board of assessment and equalization" wherever those words occur in such sections and the word "commission" so inserted in place of "board:"

"Sec. 16. Express and Sleeping Car Companies-Statement of. Every express company and every sleeping car company doing business in this state must transmit to the auditor of the state a statement of its business done within this state for the year ending on the thirtieth day of April preceding, which statement must be furnished on or before the first day of July of each year and shall contain the following items:

First. The total number of employés engaged by such company within the state, and the number thereof in each county.

Second. The total number of offices maintained by it within the state, and the number thereof in each county; the value of all office furniture, fixtures and real estate owned by it within this state.

Third. The number of miles of railroad over which such express or sleeping car company conducts its business within the state, and the number of miles thereof in each county.

Fourth. The total number of express cars or sleeping coaches owned by such company, and used within the state, and the number of such express or sleeping cars leased and controlled, but not owned by such company, and used within this state, or operated under lease or contract in any manner.

Fifth. The gross earnings of the total business of such company transacted within this state for the year ending April 30th preceding, and the value of all the property of such company used in this state.

Sec. 17. Property of Express and Sleeping Car Companies-When Assessed. *** And for the purpose of aiding the state tax commission in assessing the value of the property of such companies, it is hereby made the duty of the board of railway commissioners to collect information and facts concerning the value of the property of each express and sleeping car company in this state and to make an estimate of said value and to make and file with the state auditor on or before the first day of July of each year a written and detailed report of such information, facts and estimate.

The state tax commission shall, on the first Monday of July each year assess all the property of every express and sleeping car company doing business in this state and used in the operation and maintenance of its business, and in doing so shall take into consideration the gross earnings of said company within the state for the year ending on the thirtieth day of April preceding the statements made by said companies and by the board of railway commissioners and any and all other matters necessary to enable them to make a just and equitable assessment of said property in the same ratio as the property of individuals. All the statements aforesaid and information received shall be laid before the tax commission, which commission shall review said statement or information and may change the valuation given or add to said statement any property omitted therefrom, and said commission shall levy a tax upon said property, which tax shall be equal to the average amount of state, county, school, municipal, road, bridge, and other local taxes levied upon other property for the preceding year, and the auditor shall notify each company of the amount of taxes so levied.

Sec. 18. Form of Statement. The statement of said companies required by this act shall be made according to such forms and instructions as may be prescribed by the state auditor and with reference to property owned on the first day of May of the year for which the return is made. ***

Sec. 19. Taxes-When Paid. Each express and sleeping car company so assessed shall on or before the first day of March of each year, pay to the state treasurer, the amount of tax levied on its property for the year preceding, which shall be in lieu of all other taxes.

Sec. 20. Apportionment of Taxes. The state treasurer shall apportion the amount of taxes received under the provisions of this act between the state and the various counties in which such company is doing business, as herein

provided.

The amount to which each is entitled shall be determined by the state tax commission and the county treasurer shall distribute the portion received by his county to the various county and local funds according to the levies made upon other property for the preceding year.

Sec. 21. In case any telegraph, express, telephone, and sleeping car companies doing business in this state shall fail or neglect to pay the tax due from it to the state for a period of thirty days after the same shall have become due, there shall be added to such tax a penalty of twelve per cent. per annum."

"Sec. 23. Notice. The state tax commission shall give at least ten days' notice of the time and place of its meeting, provided for in this article, to the officer of any railroad, telegraph or telephone company or other corporation making a return of the property of their company to the said commission for the purpose of assessment and taxation, of every increase made by said commission on the valuation of any of the property returned as aforesaid, for the purposes aforesaid, or of any addition made to said returns, and said companies shall have the right to appear and be heard, before said commission in all matters relating to the assessment of the property of said company." The defendant transmitted to the state auditor the report required under section 16. The commission met at the time fixed by section 17 for the assessing of the property of express companies. Defendant appeared by counsel and objected to any assessment being made in an amount greater than $18,667.85-the amount which it had returned as the value of its tangible property within this state. Disregarding such protest the commission proceeded to fix a valuation on defendant's property in this state and did fix such valuation at $1,172,300. The commission entered upon its minutes a record of such assessment, such record containing an extended statement of the matters considered in arriving at the valuation determined upon. It is apparent from such record, and it is conceded, that the commission, in making such assessment, purported to assess defendant's property upon what is commonly spoken of as the "unit basis." The commission fixed the time and

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