State ex rel. American Express Co. v. State Board of Assessment and Equalization

• Decision Date: 15 October 1892
• Parties: STATE ex rel. AMERICAN EXP. CO. v. STATE BOARD OF ASSESSMENT AND EQUALIZATION.
• Court: South Dakota Supreme Court

53 N.W. 192

3 S.D. 338

STATE ex rel. AMERICAN EXP. CO. v. STATE BOARD OF ASSESSMENT AND EQUALIZATION.

Supreme Court of South Dakota

October 15, 1892

Syllabus by the Court.

1. Under the provisions of the statutes of this state the office of the writ of certiorari is confined to questions touching the jurisdiction of inferior courts, officers, boards, and tribunals, and to the question whether such inferior courts officers, boards, and tribunals have regularly pursued the authority conferred upon them.

2. By chapter 14, Laws 1891, power is conferred upon the state board of assessment and equalization to value and assess the property of express companies within this state; and the duty is imposed upon such state board to so value and assess such express companies' property for the purposes of taxation under the said act.

3. The state board of assessment and equalization being authorized and required, by the statute, to value and assess the property of relator within this state, the valuation and assessment made by such board, when it has jurisdiction of the party and of the subject-matter, and regularly pursues its authority, is, in this proceeding, conclusive upon this court. This court cannot substitute its own judgment for that of such board as to the assessable value of such property.

4. It is only when the valuation and assessment is erroneous in point of law, either because the said state board has adopted some inadmissible basis in making it, or because it has disregarded any of the mandatory provisions of the statute on which the relator has a right to rely, that a court will set aside or modify the proceedings of such board of assessment and equalization on the writ of certiorari.

5. The taxing power of the state is one of its attributes of sovereignty, and this power reaches all property within the state which is not by law exempt from taxation, and may be exercised at the discretion of the state; and although such property is used in the business of interstate commerce, it is nevertheless assessable in this state when located and used therein.

Certiorari by the state, on the relation of the American Express Company, to review the proceedings of the state board of assessment and equalization in assessing the property of relator for taxation for the year 1891. Proceedings of the board affirmed.

Frank F. Davis, for plaintiff. Robert Dollard, Atty. Gen., for defendant.

CORSON J.

This is an original proceeding on writ of certiorari granted by this court, and directed to the state board of assessment and equalization of this state, commanding said board to certify to this court for review the proceedings of said board in assessing the property of relator for the purposes of taxation for the year 1891. From the affidavit made on behalf of the relator, it appears that the relator is a joint-stock association created, organized, and existing under and by virtue of the laws of the state of New York, and is an express company doing business in the state of South Dakota with agencies and places of business therein, as a common carrier of goods, freight, merchandise, and money for hire that prior to the 1st day of July, 1891, the relator made and transmitted to the state auditor the statement required by section 65, c. 14, Laws 1891, from which it appears that the value of the real and personal property of relator in this state was $8,956.80, and that said value was by said board fixed at the sum of $35,000, upon which sum a tax was levied for said year; that the value placed upon said property by said relator was its true value, and that the value placed on said property by said board was excessive, unjust, and inequitable, and not in the same ratio as the assessment upon the property of individuals within said state; and that in raising the value of said property to the amount stated the said board exceeded its jurisdiction, and failed to regularly pursue the authority vested in said board. To the writ issued the state board of assessment and equalization made return of its proceedings as such board pertaining to the valuation and assessment of the property of said relator. By such return it appears that the statement required to be made by the relator was made and transmitted to the state auditor; that on August 5, 1891, Mr. Naylor appeared before the board on behalf of the relator in regard to the assessment of the American Express Company, and that on August 10th, on motion of Mr Taylor, one of the members of the state board of assessment and equalization, the American Express Company was assessed at $35,000. In addition to return made by the state board, the attorney general and the counsel for relator made a stipulation as to certain facts, the material part of which is as follows: "That said board of assessment and equalization, in determining the valuation to be placed upon the property of said American Express Company, took into consideration such contracts of the said American Express Company with said railway lines, and that said board, in arriving at the valuation of said express company's property within said state, took into consideration the gross earnings of said express company under and by virtue of said contracts; and that no further or other testimony or evidence relative to the value of the property of said express company was submitted to or had before said board at its said session than the statement filed with the state auditor pursuant to the provisions of section 65, c. 14, of the General Laws of South Dakota for the year 1891, and the statement before said board of said express company's probable net earnings in South Dakota made by its agent."

A state board of assessment and equalization is provided for by section 45, c. 14, Laws 1891, which is as follows: "The governor, auditor, secretary of state, state treasurer, and attorney general of the state shall constitute the state board of assessment and equalization. Said board of equalization shall hold a session at the seat of government commencing on the first Monday of August of each year. A majority of the members of said board shall constitute a quorum, and have authority to act." The manner of valuing and assessing the property of express and sleeping car companies is provided for by sections 65 and 66, which are as follows: "Every express company and every sleeping car company doing business in this state must transmit to the auditor of the state a statement of its business done within this state for the year ending on the thirtieth day of April preceding, which statement must be furnished on or before the first day of July of each year, and shall contain the following items: First. The total number of employes engaged by such company within the state, and the number thereof in each county. Second. The total number of offices maintained by it within the state and the number thereof in each county; the value of all office furniture, fixtures, and real estate owned by it within this state. Third. The number of miles of railroad over which such express or sleeping car company conducts its business within the state and the number of miles thereof in each county. Fourth The total number of express cars or sleeping coaches owned by such company and used within the state, and the number of such express or sleeping cars leased and controlled, but not owned by such company, and used within this state or operated under lease or contract in any manner. Fifth. The gross earnings of the total business of such company transacted within this state for the year ending April 30th preceding, and the value of all the property of such company used in this state. Section 66. If the statement aforesaid shall not be received by the said auditor by the first day of August of each year, he shall thereupon proceed to obtain the facts and information aforesaid in any manner that may appear most likely to secure the same correctly. Said property shall be assessed by the state board of assessment and equalization, and not otherwise. Said board shall value and assess said property as of the first day of May of said year, and in assessing said property shall take into consideration the gross earnings of said company within the state for the year ending on the 30th day of April preceding, and any and all other matters necessary to enable them to make a just and equitable assessment of said property, in the same ratio as the property of individuals. The statements so filed or the information so obtained shall be laid before the state board of assessment and equalization, which board shall review said statement or information, and may change the valuation given or add to said statement any property omitted therefrom, and said board shall levy a tax on said property, which tax shall be equal to the average assessment of state, county, school, and municipal taxes levied upon other property for the preceding year, and the auditor shall notify each company of the amount of taxes so levied."

By the statement transmitted to the state board by the relator it appears that the relator had 129 express offices, transacted its business over 1,603 miles of railroad, received as gross earnings the sum of $20,480.64, and had property, real and personal, of the value as therein stated of $8,956.80 within this state. The question therefore presented for decision is did the state board of assessment and equalization exceed its jurisdiction in valuing and assessing the property of relator at $35,000? or did it fail to regularly pursue its authority? It will be observed by an examination of the statute relating to the assessment of express companies that the duties of the state board of assessment and equalization in assessing the property of relator are not those of an equalizing...