Silven v. The Board of County Commissioners of The County of Osage

• Decision Date: 09 November 1907
• Docket Number: 15,537
• Citation: 76 Kan. 687,92 P. 604
• Parties: T. W. SILVEN v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OSAGE
• Court: Kansas Supreme Court

92 P. 604

76 Kan. 687

T. W. SILVEN v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OSAGE

No. 15,537

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Error from Osage district court; ROBERT C. HEIZER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONSTITUTIONAL LAW--Delegation of Powers--Assessment of Taxes--Appeal to the District Court. The assessment of property for purposes of taxation is not a judicial function, and chapter 3 of the Laws of 1905, providing for an appeal from the county board of equalization to the district court, is unconstitutional and void.

J. E Jones, William R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error.

A. B. Crum, county attorney, and McLaughlin & Messerley, for defendant in error.

OPINION

JOHNSTON, C. J.:

T. W. Silven, an owner of taxable property in Osage county, feeling aggrieved with the valuation placed upon it by the assessor, appealed to the board of equalization for a reduction, but the application was denied. From this decision he attempted to appeal to the district court. There a motion was made to dismiss the appeal, for the reason that the court had no jurisdiction of the subject-matter and was without authority to entertain the appeal. The district court dismissed the appeal, and error is predicated on that ruling.

The plaintiff bases his claim of right to an appeal upon a recent statute, which provides:

"SECTION 1. Any person owning real estate in the state of Kansas, deeming himself aggrieved by any decision of the county board of equalization relative to the taxable valuation of his real estate, shall have, within ten days from and after the decision of the said board, the right to appeal therefrom to the district court of the county in which the real estate in question is situated.

"SEC. 2. All appeals provided for by section 1 of this act shall be governed by the law providing for appeals from judgments of justices of the peace to the district court." (Laws 1905, ch. 3.)

The trial court held that this act attempts to make the district courts of the state share in the exercise of the taxing power and to confer upon those tribunals legislative and administrative functions with which they cannot be constitutionally vested. If the act were held to be valid it would operate to transfer to the courts a large part in the valuation of property for purposes of taxation, and in practical effect make them assessors. By the terms of the act any one dissatisfied with the valuation of his property may apply to the board of equalization to reduce the valuation and to reassess his property, and, if an unfavorable decision be made, take an appeal to the district court. The act provides that such an appeal shall be governed by the law relative to appeals from judgments of justices of the peace. Under that law the appeal vacates the judgment or decision and there is a trial de novo in the appellate court. The effect of such an appeal would be to set aside the assessment made, and would devolve upon the court the duty, not only of revising or correcting the assessment, but also of making a new and independent one, and thus substitute the judgment of the court, as to valuation, for that of the assessors. Since any aggrieved party may appeal, all owners of property may likewise avail themselves of the right; and thus the courts would be transformed into boards of assessment, with the responsibility of fixing the ultimate valuation of property for purposes of taxation. This is wholly impracticable, and, according to a number of decisions of this court, in contravention of the limitations of the constitution. Under the constitution a court may only be vested with judicial power. The power of taxation is a legislative function. It is the province of the legislature to determine the subject and extent of taxation and to provide the means and agencies for enforcing it. In the absence of constitutional restrictions the taxing power of the legislature is supreme and complete, and nothing in that instrument justifies a division of that power with the judiciary.

Of course, if the legislature should violate a constitutional limitation in the enactment of a tax law the judicial power of the courts might be invoked to determine its validity and prevent its enforcement. And if the officers or agencies provided by the legislature for administering the tax laws were not proceeding in a legal manner their hands might be stayed by appropriate proceedings in the courts, and it is doubtless competent for the legislature to provide that any invalidity in tax proceedings shall be tested or any controversy arising from the unlawful actions of officers in administering the tax laws shall be tried in the courts in either original or appellate proceedings. These matters however, are purely judicial in their nature, and are wholly apart from the taxing power vested in another department of the government, which cannot be delegated to, or exercised by, the courts. An assessor appointed under the law to place a valuation on property for purposes of taxation is an administrative officer, and, while his act in assessing property is administrative, it is in fact an incident to the legislative power of taxation. It is true that the valuation of property involves judgment and discretion, but not every act requiring judgment and discretion is judicial in its nature, and the court has consistently held from the early case of Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575, down to the case of Symns v. Graves, 65 Kan. 628, 70 P. 591, that the matter of assessment of property for taxation is not a judicial function. In Auditor of State v. A. T. & S. F. Railroad Co., supra, where the right of an appeal to a court from assessment of property by a board of assessors was involved, it was held that "the power to tax is a legislative power, and not in any sense judicial." (Syllabus.) In deciding that the statute giving an appeal was invalid Mr. Chief Justice...