St. Joseph & G.I.R. Co. v. Steele, 428.

• Decision Date: 08 October 1894
• Docket Number: 428.
• Citation: 63 F. 867
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: ST. JOSEPH & G.I.R. CO. v. STEELE.

63 F. 867

ST. JOSEPH & G.I.R. CO. v. STEELE.

No. 428.

United States Court of Appeals, Eighth Circuit.

October 8, 1894

M. A Reed (John M. Thurston, on the brief), for appellant.

J. H Gillpatrick (P. L. Soper, on the brief), for appellee.

This was a bill which was filed by the appellant, the St. Joseph &amp Grand Island Railroad Company, against R. M. Steele, in his official capacity, as sheriff of Doniphan county, Kan., to restrain him from selling a portion of a bridge across the Missouri river under a warrant that had been issued by the treasurer of Doniphan county, Kan., to enforce the collection of certain taxes theretofore assessed against the bridge by the local authorities of Doniphan county. The easter terminus of the bridge is in the city of St. Joseph, Mo. The western terminus and the western 926 feet of the structure are situated in the Washington township, Doniphan county, Kan. The residue or eastern portion of the structure lies within the boundaries of the state of Missouri. In May, 1892, the local authorities of Doniphan county, Kan., assessed that portion of the bridge which is situated in Kansas, for taxation for that year, at a valuation of $200,000, upon the theory that it was a toll bridge, and that as such it was subject to valuation and assessment by the local township assessor. A tax of $8,100 on such valuation was subsequently imposed, and duly extended on the tax books of the county. This tax not having been paid, a warrant was issued for its collection; and the appellee, R. M. Steele, as sheriff of the county of Doniphan, was proceeding to enforce the collection of the tax by a sale of that portion of the bridge lying within the state of Kansas, when the present suit was instituted by the appellant to restrain the sale, and to prevent the collection of the aforesaid tax. The laws of Kansas do not authorize local township or city assessors to assess railroad property within their jurisdiction for the purpose of taxation. They require all railroad property to be valued as an entirety, by a board of railroad assessors, and the amount of the aggregate valuation to be apportioned for taxation among the various townships through which the road runs. In this behalf the statutes of that state provide, in substance, as follows: That the lieutenant governor, secretary of state, state treasurer, state auditor, and attorney general shall constitute a board for the valuation and assessment of all railroad property in that state. It is made the duty of said board to ascertain all the railroad property owned and operated within the state by every railroad company, and to appraise and assess such property, as an entirety, at its actual value in money. To aid the board in thus ascertaining and assessing railroad property, each railroad company owning or operating a road within the state is required to make a return of all its property to the state auditor on or before March 20th in each year. The laws of Kansas further provide that, when the board of railroad assessors have valued and assessed the property of a railroad, it shall cause the state auditor to make a return to the county clerk of every county in the state in which any part of the road is located, which return shall show, among other things, the number of miles of track located in each township of the county, the average valuation per mile, and the amount of the aggregate valuation for the purpose of taxation that shall be placed to the credit of each city and township in the county through which the road runs. Gen. St. Kan. 1889, Secs. 6871-6873, 6875, 6879-6881. 6884. With reference to the allegations of the bill of complaint which was filed by the appellant, it is sufficient to say that it averred, in substance, that the aforesaid bridge had been owned by the appellant company since June, 1885, and that in the meantime it had formed an integral part of its railroad, which extended from St. Joseph, Mo., to the city of Grand Island, Neb.; that during said period it had been used continuously for the passage of its trains over the Missouri river; that in the month of May, 1892, the appellant had duly made a return to the state auditor, as required by law, fo all its property located in Kansas, including that part of said bridge which was situated within the state; that the state board of railroad assessors had subsequently valued all of its property so returned for the purpose of taxation; and that the board had likewise certified to the county clerk of Doniphan county, as required by law, the amount of the aggregation valuation that had been apportioned to Doniphan county for the purpose of taxation therein. The bill further averred that the board of county commissioners of Doniphan county had subsequently caused taxes for the year 1892 to be levied and extended upon the valuation of the appellant's property within Doniphan county that had been fixed and certified by the state board of railroad assessors, and that the tax so levied and extended had been duly paid to the proper officers of the county on December 19, 1892. In view of the premises, the bill charged that the taxes levied upon said bridge, as a toll bridge, under the assessment made in May, 1892, by the local township assessor, was an illegal tax, and that the warrant under which the appellee was proceeding to sell said bridge was utterly void and of no effect. In his answer to the bill of complaint, the appellee pleaded, in substance, that the said bridge referred to in the bill was an independent structure, to wit, a toll bridge; that it was not constructed as a part of any railroad, and had never been used exclusively as a railroad bridge; that, being a toll bridge, the power to assess the same for the purpose of taxation, or to assess so much thereof as was located in Kansas, was vested exclusively in the local township assessor; and that it had been erroneously returned as railroad property to the state auditor, and had been unlawfully assessed by the state board of railroad assessors. The defendant also pleaded specially that the right of the local township assessor to assess the bridge as a toll bridge had been previously litigated, in a suit brought by the appellant against John Devereux, a former sheriff of Doniphan county, Kan., in which suit it had been finally adjudged and determined that the right to assess said bridge for the purpose of taxation was vested by the laws of Kansas in the local township assessor, and not in the board of railroad assessors. Railroad Co. v. Devereux, 41 F. 14. The circuit court, on final hearing, dismissed the bill of complaint, whereupon the complainant appealed.

Before BREWER, Circuit Justice, and SANBORN and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The first question that merits our attention on this appeal is whether the relief sought by the appellant is barred by the decree dismissing the appellant's bill of complaint in the suit formerly brought by this appellant against John Devereux, the then sheriff of Doniphan county,...