Harshberger v. Board of County Com'rs of Ford County

• Decision Date: 08 June 1968
• Docket Number: No. 45213,45213
• Parties: George HARSHBERGER, Jr., et al., Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF and COUNTY OF FORD, Ralph E. Oringderff, County Clerk and ex officio Assessor of Ford County, Kansas, and Alice M. Rogers, County Treasurer of Ford County, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 5

442 P.2d 5

201 Kan. 592

George HARSHBERGER, Jr., et al., Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF and COUNTY OF FORD, Ralph E. Oringderff, County Clerk and ex officio Assessor of

Ford County, Kansas, and Alice M. Rogers, County Treasurer

of Ford County, Kansas, Appellees.

No. 45213.

Supreme Court of Kansas.

June 8, 1968.

Syllabus by the Court

1. One of the first and continuing duties of a court is to determine whether it has jurisdiction of the subject matter of the action and whether the parties raise the question or not a court has the duty to do so on its own motion.

2. Matters of taxation, especially assessments, are administrative in their character and should remain free of judicial interference in the absence of fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud.

3. The phrase 'the illegal levy of any tax, charge or assessment' as used in K.S.A 60-907(a) has reference to the action of an administrative official or board taken without authority or action which is permeated with fraud or conduct amounting to fraud.

4. The record in an action to enjoin an assessment for taxation is examined and it is held the district court was without power or authority to grant the relief requested.

James A. Williams, Dodge City, argued the cause, and Byron G. Larson, George Voss and Ken W. Strobel, Dodge City, were on the briefs for appellants.

David L. Patton, County Atty., argued the cause and was on the briefs for appellees.

HATCHER, Commissioner.

This is an injunction action brought in the district court of Ford County, Kansas, to enjoin the assessment and collection of ad valorem taxes claimed to be illegal because of unequal assessment in separate taxing districts.

The plaintiffs are fifteen owners of non-exempt real and tangible personal property subject to taxes in Ford County. This action was brought for themselves and all persons similarly situated. The defendants are the Board of County Commissioners, the County Clerk and the County Treasurer of Ford County.

The case was determined on defendants' motion for summary judgment which was considered on the pleadings, interrogatories and depositions. The undisputed facts before the trial court may be summarized for the purpose of considering the limited issue before us.

In 1963, the Kansas Legislature enacted laws relating to uniform assessment rates of property subject to ad valorem taxes, and provided that from and after January 1, 1964, all real and tangible personal property subject to general property taxes should be assessed uniformly and equally at 30% of its justifiable value, as defined and provided in the Act, K.S.A. 79-1439. Since that time the various counties of the state have been engaged, in differing degrees, in reappraising the property within their borders to comply with this law.

However, as of August 21, 1967, the date of the hearing on defendants' motion for summary judgment in this case, only 55 counties in the state of Kansas had taken the necessary steps to assess their real and personal property for ad valorem tax purposes at 30% of justifiable value, and 50 counties had not completed the necessary steps. At least one county, Shawnee, will not be ready before 1969. Only one county, Hodgeman, of the six counties bordering Ford County, has completed its reappraisal.

None of the other counties bordering Ford County have completed their reappraisal and, therefore, none of them are using the new valuations and assessments of 30% of justifiable values in 1967.

The plaintiffs contend that since the state levies a one and one-half (1 1/2) mill tax on all the property in the state of Kansas subject to ad valorem taxation (K.S.A. 76-6b01 et seq.,) and since 50 counties are not using 30% assessment ratio, Article 11, Section 1 of the Constitution of the State of Kansas and the 'equal protection' clause of the Fourteenth Amendment to the Constitution of the United States have been violated.

Plaintiffs further contend that since other counties in Kansas in 1967, and specifically five of the six counties bordering Ford County, were applying a 19% rather than a 30% assessment ratio to the justifiable value of the taxable real and personal property, there was an unequal burden of taxation for the same general public services. This, according to the plaintiffs, results because two hospital districts and five school districts are located partially in Ford County and partially in other counties. The plaintiffs do not contend that the rate of taxation in these overlapping school and hospital districts is unequal, only that the assessment ratios used for determining the assessment value of property within the overlapping school and hospital districts differ according to the county within which the property lies.

Originally the plaintiffs asked for either an injunction preventing the defendants from using the new appraisal values and a 30% assessment ratio or an injunction preventing the defendants from using an assessment ratio in excess of 19%. The plaintiffs have abandoned their first prayer and are now asking that defendants be enjoined from using an assessment ratio in excess of 19% of justifiable values in assessing and collecting ad valorem taxes for 1967, in Ford County.

The trial court sustained the defendants' motion for summary judgment and plaintiffs have appealed. We pass without comment all procedural matters and proceed immediately to the jurisdictional question, i.e., the power and authority of the district court and this court over the subject matter under the facts alleged.

Although neither party has raised the question of jurisdiction, as has been stated on many occasions, whether the parties raise the question or not, the court has the duty to do so on its own motion. (Riley v. Hogue, 188 Kan. 774, 365 P.2d 1097; Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P.2d 350; Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P.2d 413.)

In Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233, we held in the syllabus:

'One of the first and continuing duties of a court is to determine whether it has jurisdiction of the subject matter of the action.' (Syl. 3.)

The plaintiffs attempted to bring the action under the provisions of K.S.A. 60-907(a) which provides:

'Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.'

The courts have no difficulty with their power and authority where taxing bodies are attempting to proceed without statutory authority or contrary to statute (City Ry. Co. v. Roberts, 45 Kan. 360, 25 P. 854.) or where taxing authorities are proceeding against property outside their jurisdiction (Sherwood Const. Co. v. Board of County Comrs., 167 Kan. 421, 207 P.2d 409). These are matters rightly within the province of the judiciary. However, when courts are confronted with purely administrative acts relating to taxation their jurisdiction becomes quite limited.

The courts cannot fix the value of property for the purpose of taxation. Matters of taxation, especially assessments, are administrative in their character and should remain free of judicial interference in the absence of fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud.

In Board of County Commissioners of Shawnee County v. Brookover, 198 Kan. 70, at page 73, 422 P.2d 906, at page 910, we stated:

'The entire matter of taxation is legislative and does not exist apart from statute. (Ness County v. ...