State ex rel. Pennington County v. Mernaugh
| Decision Date | 31 August 1973 |
| Docket Number | No. 11191,11191 |
| Citation | 87 S.D. 495,210 N.W.2d 409 |
| Parties | STATE of South Dakota ex rel. PENNINGTON COUNTY, a body corporate, et al., Plaintiffs, v. Ralph MERNAUGH et al., Defendants, Northwestern Public Service Company et al., Internors, and Chicago & Northwestern Transportation Company, Amicus Curiae. |
| Court | South Dakota Supreme Court |
Jeremiah D. Murphy, Boyce, Murphy, McDowell & Greenfield, Sioux Falls, James Wilson, Wilson, Gunderson & Olson, Rapid City, Terence A. O'Keefe, Siegel, Barnett, Schutz, O'Keefe & Ogborn, Aberdeen, for plaintiffs.
Gale E. Fisher, May, Johnson & Burke, Sioux Falls, for Intervenor, Northwestern Bell Telephone Co. Warren May, and David A. Gerdes, Martens, Goldsmith, May, Porter & Adam, Pierre, for balance of intervenors.
M. T. Woods, Woods, Fuller, Shultz & Smith, Sioux Falls, for amicus curiae.
Gordon Mydland, Atty. Gen., John Dewell, Asst. Atty. Gen., Pierre, for defendants.
This is an original proceeding in this court based upon an application for a writ of certiorari by the several plaintiffs named above who contend that the State Board of Equalization and the Department of Revenue exceeded their jurisdiction in the manner in which the property belonging to telephone, telegraph, gas, electric and pipeline companies was assessed and equalized for tax purposes in 1972. Several of these companies were permitted to intervene in this proceeding.
Stated briefly, plaintiffs contend that the defendants exceeded their jurisdiction in equalizing the property in question by reducing the value of such centrally assessed real and personal property to 42.49% Of full and true value for 1972, whereas the defendants should have equalized such centrally assessed real property in accordance wit the county average on a county-to-county basis and the personal property on the basis of 60% Of full and true value as was ordered with respect to railway property in the case of Appeals of Chicago & Northwestern Railway Co., 85 S.D. 613, 188 N.W.2d 276.
The record reveals that statewide the average assessment of locally assessed real property was 38.33% Of its full and true value, ranging from a low of 27.6% In Custer County to a high of 53% In Yankton County.
The record supports plaintiffs' contention that defendants did not apply the county sales ratio average equalization factor to the real property belonging to the centrally assessed utilities in each county and did not apply the 60% Equalization factor to the personal property of said utilities in each county. For example, during the period in question Aurora County had locally assessed real property of a full and true value of $51,676,399, and locally assessed personal property of a full and true value of $12,588,933, or a ratio of 80% To 20% Real to personal property. For the same period intervenor Northwestern Bell Telephone Company had $3,656 worth of real property and $127.430 of personal property (both based upon original cost) in Aurora County, or a ratio of 3% To 97% Real to personal property. Had defendants equalized Northwestern Bell's property in accordance with the rule laid down in the Northwestern Railway case, supra, the countywide average of 40.6% Would have been applied to Northwestern Bell's real property in Aurora County and the 60% Factor applied to its personal property.*
Although other examples could be given, we think that the record supports plaintiffs' contention that vast amounts of personal property belonging to the centrally assessed utilities were equalized by using a percentage heavily weighted by the lower real property equalization percentage rather than the 60% Factor applied to personal property. Plaintiffs contend that at least $38,940,287 in taxable value of property belonging to the centrally assessed utilities was eliminated from the statewide assessment rolls by the defendants' action, with a consequent loss of potential tax revenue to the political subdivisions and taxing districts in the amount of $2,141,715. Although we need not and do not determine whether these figures are correct, we agree that the assessment and equalization practice followed by the defendants resulted in a substantial potential loss of revenue to plaintiffs and other political subdivisions and taxing districts similarly situated.
Having thus stated the issue raised by plaintiffs, we turn to the question whether certiorari is the proper remedy in this case. SDCL 21--31--1 provides that:
'A writ of certiorari may be granted by the Supreme and circuit Courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.'
Plaintiffs' right of appeal, if any, from the action of the Department of Revenue under the provisions of SDCL 10--1--41, SDCL 1--26, or SDCL 21--33 is more illusory than real and does not preclude the granting of a writ in this case. State v. Circuit Court of Seventh Judicial Circuit, 61 S.D. 154, 246 N.W. 638. See also State v. Knight, 52 S.D. 572, 219 N.W. 258.
The taxation of electric, heating, water and gas companies is governed by SDCL 10--35. After the assessment is made and the Department of Revenue has given notice to the utilities, SDCL 10--35--12 provides that:
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