Iowa & Dakota Telephone Co. v. Schamber

• Decision Date: 14 May 1902
• Citation: 91 N.W. 78,15 S.D. 588
• Parties: IOWA & DAKOTA TEL. CO. v. SCHAMBER, State Treasurer.
• Court: South Dakota Supreme Court

91 N.W. 78

15 S.D. 588

IOWA & DAKOTA TEL. CO. v. SCHAMBER, State Treasurer.

Supreme Court of South Dakota

May 14, 1902

Appeal from circuit court, Union county.

Action by the Iowa & Dakota Telephone Company against John Schamber state treasurer. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

W. E Gantt and E. W. Miller, for appellant. John L. Pyle, Atty Gen., and Alva E. Taylor, Asst. Atty. Gen., for respondent.

HANEY P. J.

This appeal is from an order sustaining a demurrer to the complaint on the ground that it does not state sufficient facts to constitute a cause of action. The complaint is as follows:

"The plaintiff complains of the defendant, and for cause of action alleges:

(1) Plaintiff is a corporation duly incorporated under the laws of the state of South Dakota, and doing business in said state as a corporation.

(2) That said corporation is engaged solely in the telephone business in said state, and, as such telephone company, is now, and was at the times hereinafter mentioned, operating a telephone line in the counties of Clay, Turner, and Union, of said state; they operating in the county of Clay, in said state, about thirty-seven (37) miles; in the county of Union of said state, at the present time, and were at the dates hereinafter mentioned operating, about thirty-eight (38) miles; in the county of Turner at the present date about twenty-seven (27) miles, and were at the date hereinafter mentioned, to wit, in the year 1898, operating in said county of Turner about eighteen (18) miles; and that the aggregate number of miles in said counties in the year 1898 was about ninety-three (93) miles, and the total value of the lines and appurtenances belonging to said company in the year 1898, and for which the company is liable for taxation in the state of South Dakota for the year 1898, is about $1,875.

(3) That the defendant is the state treasurer of South Dakota, duly elected, qualified, and acting as such, and, as such treasurer, he is authorized and required to collect the taxes assessed against telephone and other corporations, as one of the duties of his office as such treasurer.

(4) That at the time required by law, in and for the year 1898, this plaintiff, by its secretary, furnished to the state auditor a statement, under oath, showing the number of miles operated or leased within the state, the number of miles in each separate line or division thereof, together with the number of separate wires thereon; stating the counties through which the same extended, and in which the company did business; the number of miles of telegraph or telephone instruments used in said county; the average number of poles per mile used in constructing the lines, and the value of the wires, poles, instruments and all other property owned by it in the state; also the number of offices maintained in the state, and the total gross and net receipts of all of said offices for the year ending April 30th, preceding said report. A copy of said sworn statement is attached to the complaint, marked 'Ex. A,' and is hereby referred to, and made a part of the same.

(5) That said statement, properly filled out and sworn to, was furnished to and received by the state auditor during the month of July, 1898, and previous to the first Monday of August in said year.

(6) Plaintiff alleges that the state board of assessment and equalization, which is composed of the following named parties, to wit, governor, auditor, secretary of state, state treasurer, attorney general, superintendent of public instruction, and commissioner of school and public lands, and who, under the provisions of the law in effect, are required to meet on the 4th Monday of July of each year, for the year 1898 failed to meet for the purpose of assessing telegraph and telephone companies on the 25th day of July, 1898, but at said time the following named persons, pretending to compose said board, were present: J. L. Lockhart, commissioner of school and public lands; H. E. Mayhew, state auditor; K. G. Phillips, state treasurer, by W. A. Burrington, deputy; W. H. Roddle, secretary of state, by Philip Lawrence, assistant; Frank Crane, superintendent of public instruction, by M. A. Lange, deputy; and said pretended board organized by electing J. L. Lockhart president pro tem., and, without further proceedings, adjourned to meet on August 1, 1898; that at said meeting only the commissioner of school and public lands and the state auditor were present; that at the meeting held August 1, 1898, there were present the governor, secretary of state, commissioner of school and public lands, superintendent of public instruction, state auditor; the attorney general not being present, but represented by his assistant; and at which meeting the governor was elected chairman, after which the board adjourned to August 2, 1898, at 10 o'clock a. m., at which meeting were present all of the state officers composing the board, except the attorney general, who was represented by assistant. And at this meeting the following, among other, business was transacted: 'Moved by Lockhart, and seconded by Mayhew, that the Iowa & Dakota Telephone Company be assessed $75 per mile on its lines in the state, to be apportioned according to the number of miles in each county,'--which motion prevailed, all members voting 'Yes'; and a gross assessment, amounting to $6,975, was made against plaintiff at this meeting for the purpose of taxation of plaintiff's property for the year 1898.

(7) Plaintiff alleges that the above and foregoing is a full and complete statement of all the proceedings taken or had by the state board of assessment and equalization, and pertaining to the assessment and equalization thereof of the property of the plaintiff for the purpose of taxation for the year 1898.

(8) Plaintiff alleges that it never had any notice of any proceedings had or taken by said state board of equalization or assessment, or of the raising of the amount of the value fixed in the sworn statement furnished by it; that the assessment of plaintiff's property was arbitrarily raised from the amount of $1,875, fixed in the sworn statement as the value of said property, to the sum of $6,975, without any notice whatsoever to the plaintiff, or to any one representing it.

(9) That afterwards, and after said proceedings were had, and on the 4th day of August, 1898, there was written to W. A. Houts, secretary of plaintiff, a letter or notice which is in words and figures following, to wit: 'Auditor's Office, State of South Dakota. H. E. Mayhew, Auditor; E. H. Swartz, Deputy. Pierre, August 4, 1898. W. A. Houts, Secr'y, Parker, S. D.--Dear Sir: The state board of assessment and equalization has fixed the valuation of the Iowa and Dakota Telephone Co. for the year 1898 at $6,975. H. E. Mayhew, Auditor.'

(10) Plaintiff alleges that the amount of $6,975 so arbitrarily fixed as the assessed value of plaintiff's property for taxable purposes for the year 1898 is excessive, and far beyond assessable value of the property so assessed; that the amount sworn to in the statement returned in compliance with the law to the state auditor for the year 1898 was in full assessable value of plaintiff's property in said state, and that the sum of $5,100 so added to the amount given in said statement is excessive and illegal, and the same is greatly in excess of the values placed upon other property situate in the counties of Turner, Clay, and Union, where plaintiff's property is situate; that land in Clay county for said year is assessed at about 33 1/2 per cent of its actual value, in Turner county real property is assessed at about the same rate, and in Union county real estate is assessed at about 37 per cent. of its real value; that this is more fully shown by certain lists of the actual value of lands in said counties, together with the assessments made upon said lands, described in said schedules for the year 1898, copies of which are here attached, marked 'Ex. B,' and made a part of this complaint.

(11) Plaintiff alleges that the taxes on the sum of $5,100, being the amount of the assessment placed by said state board upon plaintiff's property over and above the amount returned in plaintiff's statement to the auditor of the state, is absolutely void, for the following reasons, to wit: First. For the reason that there was no meeting of said board of assessment and equalization the fourth Monday of July, as required by law; that the so-called board on said date was illegal, not being composed of the officers

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