State ex rel. Frizzell v. Dwyer

• Decision Date: 08 November 1969
• Docket Number: No. 45804,45804
• Citation: 204 Kan. 3,460 P.2d 507
• Parties: STATE of Kansas ex rel. Kent FRIZZELL, Attorney General, Plaintiff, v. Ronald F. DWYER, Director of Property Valuation, State of Kansas, Defendant.
• Court: Kansas Supreme Court

Page 507

460 P.2d 507

204 Kan. 3

STATE of Kansas ex rel. Kent FRIZZELL, Attorney General, Plaintiff, v. Ronald F. DWYER, Director of Property Valuation, State of Kansas, Defendant.

No. 45804.

Supreme Court of Kansas.

Nov. 8, 1969.

Syllabus by the Court

In an original action in quo warranto to oust the state director of property valuation from proceeding with the implementation and enforcement of Chapter 431, Laws of 1969, upon the ground it contravenes designated provisions of the federal and state constitutions, it is held: The challenged act is not invalid for violation of (1) the equal protection and the due process clauses of the fourteenth amendment to the federal constitution; or (2) article 11, section 1, of our state constitution pertaining to uniformity and equality of assessment and taxation.

Clarence J. Malone, Topeka, argued the cause, and Daniel L. Swagerty, Topeka, was with him on the brief for defendant.

Warren W. Shaw and James C. Wright, Topeka, were on the brief amici curiae for Kansas County Commissioners Assn. And the Kansas Motor Car Dealers Assn.

Gary L. Rohrer, Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., and J. Richard Foth, Asst. Atty. Gen., were with him on the brief for plaintiff.

HARMAN, Commissioner.

This original quo warranto action on the relation of the attorney general tests the validity of the provisions of Chapter 431, Laws of 1969, which provides a method whereby motor vehicles acquired after January 1 but before November 1 are to be listed and assessed for ad valorem taxation. Defendant is the officer charged with general supervision over the administration of the assessment and tax laws of the state (K.S.A. 79-1404).

Issues were joined, the case was briefed and orally argued and on September 23, 1969, judgment was entered for defendant, that decision being announced in a brief opinion found at State ex rel. Frizzell v. Dwyer, 203 Kan. 966, 458 P.2d 735. The purpose of this opinion is to state reasons for the decision reached.

Generally, the challenged portion of the act provides that any motor vehicle acquired after January 1 and prior to November 1 of [204 Kan. 4] any year is to be valued by the county assessor at the time of the vehicle's registration pursuant to schedules furnished by the director of property valuation and is to be placed on the tax rolls for the current year. Such valuation is to be prorated according to the number of months the vehicle is owned during the year. In case of a trade during the year the valuation and ensuing tax are to be apportioned between the vehicle previously owned by the taxpayer and that acquired as a replacement according to the number of months each was owned during the year. In making this valuation the county assessor is authorized to deviate from the valuation schedules by using a lower amount for a damaged vehicle.

Plaintiff has challenged the law upon several constitutional grounds. Our consideration and ultimate determination of validity is limited to those grounds.

Plaintiff first contends the law will deprive certain taxpayers of equal protection of the law and of their property without due process of law in violation of the federal constitution. His argument derives from our legislative pattern of appeals from action of assessing officials and briefly is this: Once property is listed and assessed, a taxpayer who feels aggrieved by the valuation of the assessor may complain to the board of county commissioners sitting as the county board of equalization which board is empowered to make such changes as it deems necessary in order to secure a proper assessment of all property. This board may now meet at any time after January 15 and is required to meet on the first business day in May for the purpose of such tax review. It generally remains in session during the month of May and for limited purposes meets in June but must finally adjourn for the year on June 15 and may not thereafter change an assessment (Chapter 437, Laws of 1969). Further appeal from this board's action may be made to the state board of equalization (K.S.A. 79-1409). Plaintiff then points out that the taxpayer who purchases a vehicle after June 15 may be dissatisfied with the assessment placed upon it but he may not present his grievance to the county board of equalization as can the purchaser of a vehicle earlier in the year and plaintiff argues the taxpayer is thus deprived of due process and equal protection of the law.

We cannot sustain this argument.

In Felten Truck Line, Inc. v. State Board of Tax Appeals, 183 Kan. 287, 327 P.2d 836, a statute placing a tax upon motor carriers was attacked as violative of the fourteenth amendment to the federal constitution. In rejecting the contention this court stated:

'It is only necessary that at some stage of the assessment proceedings the taxpayer shall have an opportunity, after notice, to appear and contest the assessment.' (p. 296, 327 P.2d p. 844.)

K.S.A. 79-1413a provides in pertinent part:

'Whenever, upon complaint made to the state board of tax appeals * * * by any property taxpayer, and a summary proceeding in that behalf had, it shall be made to appear to the satisfaction of said state board that the assessment of taxable * * * tangible personal property in any county is not in substantial compliance with law * * * said board of tax appeals shall order a reappraisal of all or any part of the taxable property * * *.'

Also, K.S.A. 79-2005 permits a taxpayer, who feels aggrieved, to pay his taxes under protest and thereafter either to commence a judicial proceeding to recover the protested payment or file an application with the state board of tax appeals for a hearing on the validity of his protest. This latter board is the same group which constitutes the state board of equalization (K.S.A. 79-1409).

These avenues of relief remain open to the aggrieved taxpayer after June 15. Their availability satisfies constitutional requirements. Although their relative simplicity and expensiveness in a given case might be debatable when compared to the further remedy open prior to June 15, this fact would not constitute a denial of equal protection of the law beyond constitutional limits.

Article 11, section 1, of our state constitution provides that, with certain exceptions not here material, the legislature shall provide for a uniform and equal rate of assessment and taxation. Plaintiff's principal contention is that this clause is violated in that some vehicles purchased after January 1 of any year are taxed for that year while no other property so purchased is taxed.

Our general statute on listing personal property subject to taxation provides that it shall be listed in the name of the owner as of January 1 (K.S.A.1968 Supp. 79-301). If must be conceded the bulk of taxable personal property would be assessable under this provision, but not all, as we shall see.

Plaintiff relies primarily for his position on our early holding in Graham v. Com'rs of Chautauqua County, 31 Kan. 473, 2 P. 549. There a taxpayer brought cattle from Indian Territory into Kansas in March and April of 1881 and kept them within this state until some time in October of that year. The general taxing date at that time was March 1. The cattle were assessed by reason of a statute which provided that when any livestock shall be driven into any county of this state from beyond the boundaries of the state for the purpose of grazing therein at any time prior to the first day of December, such stock shall be liable to be assessed for all taxes levyable in that county for that year, the same as if the owner thereof resided and held the stock in such county on the first day of March of that year (Chap. 34, § 1, Laws of 1881). This court held the particular proviso unconstitutional, saying:

'All personal property in the state on the first of March is, with the constitutional exemptions, listed for taxation. This therefore enforces the constitutional rule of uniformity. There is no general provision for taxing property brought into the state after the first of March, but by this statute an attempt is made to tax certain kinds of property when brought into the state for certain purposes. But if this is done the rate of assessment and taxation is not uniform and equal. It was said in the case of Hines v. City of Leavenworth, 3 Kan. (186,) 200, that 'the whole property of the state must be listed and valued for taxation.' If this be true, must not all the property brought into the state after the first of March be listed for taxation in order to support the listing of part? Certainly, a statute cannot be sustained which attempts to cast the entire burden of taxation on one class of personal property leaving all others exempt. If this be true in respect to the entire year, must it not be equally true in respect to a portion?

'We think this argument is sound, and that if in addition to the listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be made as to property after the first of March, any more than it can as to property on that day.' (pp. 477-478, 2 P. p. 552.)

This ruling has since been cited approvingly by this court and the broad language quoted supports plaintiff's position. However, it should be noted the statute in the Graham case made no provision for pro rata assessment based upon length of time the property was in the state but called for a full year's assessment to be made against it. This fact alone makes the case distinguishable from the case at bar.

Since the time of the Graham case other statutes have been enacted which have the effect of taxing property not in the state at the time of the general listing date. Among these are K.S.A. 79-316 providing for the listing and assessment, under certain conditions, of personal property...