Pomeroy Coal Co. v. Emlen

• Decision Date: 10 May 1890
• Citation: 44 Kan. 117,24 P. 340
• Parties: THE POMEROY COAL COMPANY v. THOMAS J. EMLEN, as County Treasurer of Atchison County
• Court: Kansas Supreme Court

24 P. 340

44 Kan. 117

THE POMEROY COAL COMPANY v. THOMAS J. EMLEN, as County Treasurer of Atchison County

Supreme Court of Kansas

May 10, 1890

Error from Atchison District Court.

THE case is fully stated in the opinion.

Judgment reversed and remanded.

B. F Hudson, for plaintiff in error.

T. H Pierce, county attorney, and W. W. & W. F. Guthrie, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

This is a proceeding in which the plaintiff in error, who was plaintiff below, on the 22d day of November, 1889, filed in the district court of Atchison county his petition praying the court to allow an order restraining the collection of certain taxes therein set out. The court heard the application December 2, 1889, upon the petition and oral evidence, and took the same under advisement until December 7, when it rendered judgment refusing to allow the order prayed for by the plaintiff in his petition; to which ruling rendering said judgment the plaintiff objected and excepted, and comes here by its case-made alleging that the court below erred in refusing said order, and asks that the judgment of the said court be reversed.

This case grows out of the action of the county commissioners of Atchison county, sitting as a board of equalization, by which they increased the assessment of the plaintiff for purposes of taxation. The assessor whose duty it was to assess the plaintiff called on the company, and received from J. W. Fisher, who was secretary and treasurer thereof, the personal-property statement of said company. Mr. Fisher on behalf of the plaintiff listed the average of stock on hand at the sum of $ 6,000, and listed furniture worth at its alleged true value $ 450. The assessor, pursuant to an agreement entered into by all the assessors of the county to value property at one-third its true value, placed upon the property of the plaintiff an aggregate valuation of $ 2,150--$ 2,000 upon the average amount of stock, and $ 150 upon the item of furniture. The county commissioners of Atchison county met as a board of equalization on the 3d of June, 1889, and while sitting as such board, on the 12th day of June, added to the assessment of the plaintiff the sum of $ 7,850. This was done arbitrarily by the commissioners, or two of them, and without any notice to the plaintiff. Now, the plaintiff claims that such addition was a new and additional assessment of the plaintiff's property, made by the county commissioners sitting as a board of equalization, and avers that the board had no power as such to make any additional assessment. If the plaintiff is right in its contention as to the fact, we think its conclusion of law is correct. The commissioners were in session as a board of equalization. It is admitted that as such board they added to the assessment of the plaintiff the sum of $ 7,850. Now what did such action of the board amount to? Was it a new assessment by them, or was it simply a raising of the valuation of the property of the plaintiff already listed? If it was the making of a new assessment, it was without authority of law. If it was simply a raising of the valuation put upon the plaintiff's property as listed by the assessor, then it was within the authority of the board and of the very purpose for which it met, and entirely proper if not raised higher than the property of the rest of the tax-payers of the county.

Mr. Wilcox, chairman of the board, when asked how much the board increased the valuation of the first item in the plaintiff's assessment as given in by itself to the assessor, and returned by him, to wit, the average of stock on hand during the preceding year, answered, "We didn't talk about the first item--the average stock. There was nothing said about it." When asked if he believed the plaintiff had failed to list the full amount of its average stock, answered, "I did, sir; I did not believe they had returned enough." Again, Wilcox testified that the board did not complain of the average of stock so far as the retail business of the company given in Atchison was concerned, but said it believed the company should be assessed for the wholesale business it did, and the business it had in Topeka, Omaha, and other places. It is apparent from the testimony of Mr. Wilcox, to say nothing of the other testimony in the case, that the board did not think it was raising the value of the plaintiff's property already listed, above the one-third valuation agreed upon by the assessors, but that it believed that the plaintiff had other personal property that it had not listed. Just what form such property was in, the board evidently did not clearly understand, as it called it capital invested in business outside of the city of Atchison, and which it believed should in some way be reached and assessed in the city of Atchison where the plaintiff company had its home office and headquarters. If there was no evidence of witnesses upon this question, it would in our judgment clearly appear from the proceedings of the board of equalization, as shown by the record offered and received in evidence in the case. The entire amount of property listed by the plaintiff was $ 6,000, average amount of mercantile stock, and $ 450 worth of furniture. The board was satisfied with the furniture as listed, which left but one item on the personal-property statement of the plaintiff to be considered, and that was the stock in trade of the company.

The law requires the assessor to value the property listed at its true value. Where the personal property to be listed consists exclusively of stock in trade, the statute declares what shall constitute the property to be listed. It is the average of stock on hand during the preceding year, and the statute also points out the method by which such average may be ascertained. The sum in money represented by such average is the true value of such personal property. If, therefore, the assessor values the average of stock and returns the same at a sum in money less than the amount represented by such average, the board of equalization may, for purposes of equalization, raise the valuation placed upon said average to a sum equal to, but not greater than, the sum represented by said average. In this case the board of equalization added to the valuation placed upon the property listed a sum greater than the true value of all the property listed, which shows that it did not raise the valuation of the property listed, as placed thereon by the assessor...