State ex rel. Stephan v. Parrish

• Decision Date: 10 March 1995
• Docket Number: No. 72135,72135
• Citation: 891 P.2d 445,257 Kan. 294
• Parties: STATE of Kansas ex rel. Robert T. STEPHAN, Attorney General, Petitioner, v. Nancy PARRISH, in her capacity as Secretary of the Kansas Department of Revenue, and David Cunningham, in his official capacity as Director of Property Valuation, Respondents.
• Court: Kansas Supreme Court

Page 445

891 P.2d 445

257 Kan. 294

STATE of Kansas ex rel. Robert T. STEPHAN, Attorney General Petitioner, v. Nancy PARRISH, in her capacity as Secretary of the Kansas Department of Revenue, and David Cunningham, in his official capacity as Director of Property Valuation, Respondents.

No. 72135.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. Mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public

business, notwithstanding the fact that another adequate remedy at law exists.

2. Rules and guidelines to be considered in determining the constitutionality of taxation statutes are stated and applied.

3. The legislature may authorize the abatement, cancellation, and compromise of taxes in appropriate circumstances when done within the limits of the constitution.

4. Where public property is not involved, a tax exemption must be based upon the use of the property and not on the basis of ownership alone. A classification of private property for tax purposes based solely upon owners unlawfully discriminates against one citizen in favor of another and therefore is a denial of equal protection of the law.

5. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution finds its counterpart in §§ 1 and 2 of the Bill of Rights of the Kansas Constitution. These two provisions are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law. Where constitutional challenges have been made to tax exemption schemes as violative of Article 11, § 1 of the Kansas Constitution, this court has consistently held that the uniform and equal rate of assessment and taxation provision is, in principle and effect, substantially identical to the principle of equality embodied in the Equal Protection Clause of the United States Constitution.

6. K.S.A.1994 Supp. 79-1427c violates Article 11, § 1 of the Kansas Constitution and is unconstitutional.

Julene L. Miller, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and John W. Campbell, Deputy Atty. Gen., were on the briefs for petitioner.

William E. Waters, of the Kansas Dept. of Revenue, argued the cause and was on the brief for respondents.

Gerald N. Capps, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, was on the brief for amicus curiae Commercial Property Ass'n of Kansas.

Gary A. Nelson, of Murray, Tillotson & Nelson, of Leavenworth, was on the brief for amicus curiae A Group of Taxpayers in Leavenworth County, Kansas.

HOLMES, Chief Justice:

This is an original action in mandamus and quo warranto brought by the Attorney General against the Secretary of the Kansas Department of Revenue and the Director of Property Valuation as respondents. At issue is the constitutionality of 1994 S.B. 542 § 14, now codified at K.S.A.1994 Supp. 79-1427c. For the sake of uniformity and simplicity we will refer to it as § 14 throughout this opinion. The Attorney General asserts that § 14 violates the uniform and equal taxation provision of Article 11, § 1 of the Kansas Constitution. The respondents and amici disagree.

The relevant facts, which are uncontested, are set forth in the Attorney General's petition as follows:

"4. In its 1994 session the Kansas Legislature by majority vote approved the provisions of 1994 Senate Bill No. 542. The Honorable Joan Finney, Governor of the State of Kansas subsequently signed 1994 SB 542 into law, effective upon publication in the statute book.

"5. Section 14 of 1994 SB 542 provides that:

'New Sec. 14. If, from and after January 1, 1994, and on or before March 14, 1995, the county or district appraiser discovers any taxable tangible personal property which would be subject to a penalty pursuant to the provisions of K.S.A. 79-1427a, and amendments thereto, such property shall be listed and appraised and taxes collected thereon as provided in K.S.A. 79-1427a, and amendments thereto; however, such property shall not be liable for any taxes that would have been levied against such property for any year prior to the 1992 tax year and no penalty shall be added. Notwithstanding the foregoing, the penalties prescribed by K.S.A. 79-1427a, and amendments thereto, shall be added whenever any person, association, company or corporation that has fraudulently failed to list or has fraudulently underreported tangible property required to be listed for taxation as provided in K.S.A. 79-306, and amendments thereto. Such fraud shall be proven by clear and convincing evidence.

"6. On June 17, 1994, the Attorney General issued an opinion concerning § 14 of SB 542 in which he opined:

"By releasing the property tax obligation for certain discovered escaped personal property upon which taxes have become delinquent, but not granting a similar benefit for those who timely paid their personal property taxes, section 14 of 1994 senate bill no. 542 violates the uniform and equal provision of article 11, section 1 of the Kansas Constitution.

"7. On June 28, 1994, the Attorney General met with David Cunningham, Director of Property Valuation. At that meeting Mr. Cunningham indicated that it was his position and the position of the Secretary of Revenue that § 14 of SB 542 would be implemented, as written, until such time as a court of law found the same to be unconstitutional."

This action was filed July 8, 1994, and on August 30, 1994, by agreement of the parties, this court granted the Attorney General's motion for a peremptory order in mandamus, thereby enjoining the Kansas Department of Revenue from implementing § 14.

The sole issue before the court is whether § 14 of 1994 S.B. 542 is unconstitutional as violative of the uniform and equal taxation provision of Article 11, § 1 of the Kansas Constitution.

At the outset we deem it advisable to consider whether this action seeking a writ of mandamus and quo warranto is the appropriate vehicle for the relief sought.

In State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 716, 792 P.2d 971 (1990), we reaffirmed our often-stated position on this question:

"This court has consistently recognized that mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that another adequate remedy at law exists. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984); Board of Sedgwick County Commr's v. Noone, 235 Kan. 777, 779, 682 P.2d 1303 (1984); Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982)."

The Attorney General asserts that this case is one of statewide importance. In doing so, he advances the following reasons:

"People in all of the 105 counties in the state are impacted by § 14. Local government entities which serve the people are dependent in part on moneys generated by personal property taxes. An authoritative state wide judicial ruling is required for the swift and uniform resolution of this controversy.

"An authoritative ruling is needed not only in order to guide the petitioner and respondents, but is needed in order to provide guidance for the various county and district appraisers located throughout the state.

"This matter is one of immediate concern due to the fact that various lawsuits have been threatened regarding this matter. There is a real danger of inconsistent rulings from the district courts which could result in unequal taxation in the state. Millions of dollars, held by thousands of people, are at stake in this litigation."

We agree that the use of mandamus is an appropriate and proper means for presenting the issue raised and that the court should accept jurisdiction of this case.

Before addressing the issue before us, we reiterate some of the general rules of constitutional construction. In State ex rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 (1978), we stated:

"It is fundamental that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby. [Citations omitted.]

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]

"In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]

"Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]

"Courts do not strike down legislative enactments on the mere ground they fail to conform with a strictly legalistic definition on technically correct interpretation of constitutional provisions. The test is rather whether the legislation conforms with the common understanding of the masses at the time they adopted such provisions and the presumption is in favor of the natural and popular meaning in which the words were understood by the adopters. [Citations omitted.]

"The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to...