PER
CURIAM.
The
plaintiff in error has moved for the appointment of a referee
to take evidence on a trial de novo in this court in this
proceeding. The Attorney General, in his oral argument, has
conceded that a referee should be appointed, if all things
have been done necessary to perfect this appeal. The motion
to dismiss the appeal recites as follows: "As shown by
the record filed herein, no objection was presented to or
decided by said board, and the only matters sought to be
reviewed here are said objections which were not presented or
decided below."
Plaintiff
in error insists that this appeal presents for the
consideration of this court the question as to whether the
property of the Western Union Telegraph Company, subject to
taxation in the state of Oklahoma for the fiscal year ending
June 30, 1911, was of the value of $411,910.05, and no more
and that this question was presented to the Board of
Equalization in the form of a return in detail, consisting of
334 pages, containing a detailed statement of the items of
property in each of the counties, townships, cities, school
districts, etc., and a summary or recapitulation of the same
which return was properly verified. That this return contains
a history of the organization of the Western Union Telegraph
Company, a statement of the amount of its capital stock, the
amount paid up, the amount of its property upon which it
should pay taxes, in Oklahoma, the par value of its stock
the highest, lowest, and average selling prices thereof, the
gross receipts of all sources for the year ending June 30,
1909, expense for repairs for the year ending June 30, 1909,
the amount expended for improvements for the year ending June
30, 1909, and the interest on bonds for said year. That said
return was made upon a form printed and sent out by the
Auditor for and on behalf of the State Board
of Equalization. That on the back of each of the pages are
printed instructions, over the printed signature of the
Auditor, and extracts from the laws under which the return is
required to be made on the form provided by the Auditor. That
said return presented to the board a complete statement of
every material matter going to show the value of the property
of the telegraph company in the state of Oklahoma, subject to
taxation, and presented the contention of the plaintiff in
error that its property, subject to taxation, was worth the
sum of $411,910.05, and no more.
The
notice of the intention of the plaintiff in error to appeal,
filed with the Secretary of State, is as follows:
"You
are further notified that the Western Union Telegraph
Company insists that in the assessment of its property for
the purpose of taxation by the State Board of Equalization
for the fiscal year ending June 30, 1911, many errors were
committed, to its prejudice and detriment, and to the
increasing unlawfully of the burdens of taxation upon its
property, among others, in the following particulars, to
wit:
"First.
That the State Board erroneously, without evidence,
without justification or excuse, increased the value of
the property of the Western Union Telegraph Company as
returned by it to 200 per cent. of the amount of said
return. The value so returned, and which is the fair and
reasonable cash value of said property, being $411,410.
The value at which same was fixed by said State Board
being $1,235,730. That the State Board therefore assessed
the property of the Western Union Telegraph Company for
taxation in the state of Oklahoma for the fiscal year
ending June 30, 1901, at the sum of $823,820 above the
actual fair cash value of said property subject to
taxation in the state of Oklahoma for said fiscal year.
"Second.
That the Western Union Telegraph Company returned said
property to the Auditor of the state of Oklahoma, as
required by the statutes and Constitution of this state,
at its fair cash value; that said return gave in detail
each item of property owned by the Western Union
Telegraph Company in the state of Oklahoma, and subject
to taxation therein, and the fair cash value thereof, and
the fair cash value of the aggregate thereof; that in
increasing the value so returned by the Western Union
Telegraph Company the said board did so arbitrarily,
without evidence and without regard to the value of said
property, and that the valuation so fixed is in excess of
the true actual cash value thereof, as above stated, in
the sum of $823,820.
"Third.
The Western Union Telegraph Company says that the State
Board of Equalization, in arriving at the value of its
property subject to taxation in the state of Oklahoma for
the fiscal year ending June 30, 1911, erroneously and
unlawfully considered and used as a basis the value of
the stocks and bonds and securities of the Western Union
Telegraph Company upon a mileage basis; that the same was
neither a lawful nor a just basis, for the reason that
the stocks and bonds represent every element of value of
the property of the Western Union Telegraph Company,
including its federal franchise and its right to an
interstate business; that the apportionment of the same,
on mileage basis, places the miles of lines in the state
of Oklahoma upon an equal footing with the lines in the
older states with a better and larger established
business, and in that way subjects to taxation by the
state of Oklahoma property located outside said state,
and not subject to taxation therein.
"Fourth.
That the property of the Western Union Telegraph Company,
in other states than the state of Oklahoma, is much more
valuable than it is in the state of Oklahoma, as to both
wire mileage and pole mileage basis; that the earnings
per mile are much larger in other states than the state
of Oklahoma, both gross and net, and the property of the
Western Union Telegraph Company in other states is
therefore of much greater value in proportion to the
mileage thereof, both wire and pole, than it is in the
state of Oklahoma, and that the State Board of
Equalization, in apportioning the value of said property
upon a mileage basis, fixed the value of the property in
the state of Oklahoma far in excess of its actual value.
"Fifth.
The Western Union Telegraph Company further says that its
property in the state of Oklahoma is not worth a greater
sum than would result from the capitalization of its net
earnings in said state, including interstate business,
Oklahoma's share of the interstate and transtate
business, and miscellaneous revenue, such as wire
rentals, etc., and other items received or earned in the
state; that the total amount so received in the state of
Oklahoma for the fiscal year ending June 30, 1909,
figured out on the basis hereto attached and marked
'Exhibit A,' amounts to the sum of $227,829.46;
that the total, fair, and necessary expenses, without
deducting any sum whatever for deterioration upon its
property, as per statement hereto attached and marked
'Exhibit B' and made a part hereof, is the sum of
$211,071.27, leaving a balance of revenue over operating
expenses of $16,758.19, without any allowance whatever
for depreciation on the property of the Western Union
Telegraph Company within the state; that in making said
calculations, as will appear from said Exhibits A and B,
most liberal allowances have been made in favor of the
state, giving it credit for all sources of revenue that
it could have any possible claim to, and crediting it
with any minimum amount of expenses chargeable to
Oklahoma business; that a reasonable and fair sum for the
depreciation on the property of the Western Union
Telegraph Company in the state of Oklahoma
per annum would be not less than the sum of $35,000; that
so allowing said sum, there was a deficit in the revenues
of said company in the state, for the fiscal year ending
June 30, 1909, of $18,241.81; that at no period of time
within the last five years has there been any actual net
revenue from the earnings of the company in the state of
Oklahoma after deducting the necessary and fair expenses
and allowing a fair and reasonable sum for the
depreciation of the property; that at no time in the
history of the company has its business in the state of
Oklahoma shown a clear net revenue over and above
expenses and depreciation; that therefore the State Board
erred in increasing the value of the property of the
Western Union Telegraph Company upon the theory that its
earnings in the state of Oklahoma were sufficient to
justify the same.
"Sixth.
That in arriving at the said valuation so placed by the State
Board of Equalization on the property of the Western Union
Telegraph Company, for the purposes of taxation for the
fiscal year ending June 30, 1909, the said board unlawfully
considered and treated as a part of the value of the
property, subject to taxation in the state of Oklahoma, the
property owned by the Western Union Telegraph Company outside
the state of Oklahoma, and which is never brought into or
used in the state of Oklahoma, and which is not subject to
taxation...