In re Assessment of Kansas City Southern Ry. Co.

• Decision Date: 08 May 1934
• Docket Number: 25038.
• Parties: In re ASSESSMENT OF KANSAS CITY SOUTHERN RY. CO.
• Court: Oklahoma Supreme Court

33 P.2d 772

168 Okla. 495, 1934 OK 281

In re ASSESSMENT OF KANSAS CITY SOUTHERN RY. CO.

No. 25038.

Supreme Court of Oklahoma

May 8, 1934

Rehearing Denied June 26, 1934.

Syllabus by the Court.

1. The state board of equalization has its origin in the state Constitution. In legal contemplation it performs ministerial duties not-withstanding the necessity of ascertainment of facts and exercise of judgment partaking of quasi judicial functions, in furtherance of effective administrative duties. Such acts are essentially and distinctively legislative administrative in character, and do not constitute it as a court, commission, or board or render its conclusions judicial power of this state, as contemplated by section 1 article 7, of the Constitution, nor do such acts belong to the judicial department of government within the purview of section 1 of article 4 of said Constitution.

2. The legislative branch of government is not authorized to confer upon this court powers which are primarily legislative or administrative and not incidental to the discharge of any legitimate judicial functions except as provided by the Constitution.

3. An appeal from the board of equalization, pursuant to section 12661 O. S. 1931, as amended by section 8, chapter 115, S. L 1933, authorizing an appeal to this court from assessments made by the state board of equalization, is judicial and not administrative. It constitutes but a transference of the record into this court for a judicial determination upon the question of whether the state board of equalization has acted within the limits of its authority and has made a proper application of the law to the facts, which renders the proceeding in this court judicial, giving it the character of a suit or action, and making it an appropriate subject for the exercise of judicial power.

4. The Legislature cannot declare as effective an appeal from the state board of equalization to be administrative in character. When the state board of equalization has determined the valuation of railroad property pursuant to section 21, article 10, of the state Constitution, the administrative proceeding has come to an end.

5. Record examined; cause reversed and remanded to the state board of equalization, with directions to exclude as a factor in determining the valuation of the property in question the net railway operating income for the years 1928 and 1929 and to also exclude the stock and bond values for the same years. The valuation, in question, modified as directed; in all other respects affirmed.

Appeal from State Board of Equalization.

Proceedings in the matter of the assessment of the Kansas City Southern Railway Company for ad valorem taxes for the year 1933-1934. From an assessment made by the Oklahoma State Board of Equalization, the Kansas City Southern Railway Company appeals.

Affirmed in part and reversed in part and remanded, with directions.

Frank H. Moore, of Kansas City, Mo., James B. McDonough, of Fort Smith, Ark., R. M. Rainey and Frank G. Anderson, both of Oklahoma City, and A. F. Smith, of Kansas City, Mo., for appellant.

J. Berry King, Atty. Gen., F. M. Dudley, Asst. Atty. Gen., and C. W. King, of Oklahoma City, Atty. for Oklahoma Tax Commission, for appellee.

McNEILL Justice.

This case involves an appeal from the assessment made by the Oklahoma state board of equalization on September 2, 1933, fixing the value of the property of the Kansas City Southern Railway Company for purposes of ad valorem taxation for the fiscal year 1933-1934 in the sum of $3,644,522.

The railroad company, through itself and its subsidiary and affiliated companies, owns and operates a single track line or system of railroad extending from Kansas City, Mo., to Port Arthur, Tex., with a route of mileage of about 790 miles. It has 142.94 miles of main line track in Oklahoma, all in Adair, Le Flore, and Sequoyah counties, 15.3 miles of this main line mileage being in the branch line from Spiro, Okl., to Fort Smith, Ark.

The issues as discussed in the briefs filed herein are reduced to two propositions:

First. Has this court jurisdiction to pass upon this appeal, and, if it has, should it exercise that jurisdiction?

Second. Has the state board of equalization, in fixing the value of the railway company's property for purposes of taxation, based their findings on facts which have no material bearing upon the taxable value of said property?

It appears to be the contention of the railroad company, appellant herein, that this court does not have jurisdiction of this appeal because section 12661, O. S. 1931, as amended by section 8, chapter 115, Session Laws 1933, which authorizes appeals to this court from assessments made by the state board of equalization, is unconstitutional. Under this proposition, the railroad company asserts that the judicial department shall not exercise legislative or administrative powers except as provided for in the Constitution, and that article 7 of the Constitution which deals with the judicial department seems to provide only for the exercise of judicial powers by that department. In this connection the railroad company contends that, in attempting to confer administrative powers upon this court, and to confine it to the exercise of such administrative powers in passing upon appeals from the board of equalization, the Legislature has attempted to take away from the court its power to act judicially, which is the only capacity in which this court is authorized to act under the provisions of article 4 and section 2 of article 7 of the Oklahoma Constitution. For these reasons said section 12661 as amended is null and void, and is no authority for such appeal. Said section 12661, as amended, provides as follows:

"Section 12661. A complaint in like manner may be filed before the State Board of Equalization by any aggrieved person, as to any acts of assessment, or change in the equalized value of the property of any individual taxpayer; or may be filed by the county attorney for the entire tax paying public of the county, as to the equalization, which the board shall consider, by hearing pertinent evidence; and for this purpose, authority to compel, by subpoena, the attendance of necessary witnesses and the production of necessary books, records and papers, is given. The complainant shall have the right to appeal from the findings of the board, and, for this purpose, the secretary of said board shall cause such evidence to be taken and preserved, and shall cause such complaint and evidence, with a full transcript of the orders of the board thereon, to be transcribed, and shall certify to the same. Such transcript shall be filed by such county attorney, or aggrieved person, in the Supreme Court, within ten days from the adjournment of said board, which shall complete the appeal allowed by law. Such transcript shall, in due course, be examined and reviewed by said court, and affirmed, modified or annulled as justice may demand; provided, that in order to perfect such appeal, the appellant shall file notice thereof, with the secretary of the State Board of Equalization, within ten days after the adjournment of said board. The appeal herein provided is defined to be an administrative rather than a judicial appeal, and the Supreme Court, in hearing and determining the issues, shall sit in the same capacity as if it were a reviewing board of equalization."

Article 4 of the Constitution is as follows: "The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others." Sections 1 and 2 of article 7 of the Constitution are as follows:

"Section 1. The judicial power of this State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, District Courts, County Courts, Courts of Justices of the Peace, Municipal Courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.

Sec. 2. The appellate jurisdiction of the Supreme Court shall be co-extensive with the State, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs, as may be provided by law, and to hear and determine the same; and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. Each of the Justices shall have power to issue writs of habeas corpus to any part of the State upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or before the Supreme Court, or before any District Court, or Judge thereof, in the State."

The railroad company also urges under this first proposition that, even if this court has jurisdiction of this appeal, under its judicial capacity it ought not exercise it without appellant's consent.

It is the contention of counsel for the Attorney General and the Oklahoma tax commission, attorneys for appellee, that article 4 of the Constitution must be read and considered in connection with the aforesaid sections 1 and 2 of article 7 of the Constitution, and that these...