State v. State Board of Equalization
| Decision Date | 06 November 1919 |
| Docket Number | 4478. |
| Citation | 185 P. 708,56 Mont. 413 |
| Parties | STATE ex rel. ATTORNEY GENERAL v. STATE BOARD OF EQUALIZATION et al. |
| Court | Montana Supreme Court |
Original application for mandamus by the State, on the relation of the Attorney General, against the State Board of Equalization and S. V. Stewart and others, as members of said board. Motion to quash alternative writ and to dismiss proceeding overruled with leave to respondents to answer.
S. C Ford and Frank Woody, both of Helena, for relator.
John G Brown, of Helena, for respondents.
This is an original application for mandamus, on the relation of the Attorney General, to compel the State Board of Equalization to make certain assessments, in accordance with the provisions of section 1, c. 48, and section 6, c. 49, Laws of the Sixteenth Legislative Assembly. The material facts alleged in the affidavit are:
That the Montana Power Company, Great Falls Power Company Thompson Falls Power Company, and Montana Reservoir and Irrigation Company are corporations organized and existing under the laws of Montana; that they are what is known as hydroelectric companies, and are engaged in the business, in this state, of generating electric power and energy, and in transmitting, distributing, and selling the same; that on the first Monday in March, 1919, each of said corporations was the owner of a large number of lots and parcels of real estate, buildings, and structures thereon, dam sites, dams, power houses, machinery, and furniture, and also rights of way, buildings situated thereon, pole and transmission lines, and other property, all situated in the state of Montana, and subject to taxation therein for the year 1919; that the power and transmission lines of each of said corporations on said day constituted a single and continuous property operated in more than one county in this state; that some time prior to the first Monday in March, 1919, the officers and agents of each of said corporations returned to and filed with the county assessor of each county in which a part of its property was operated a statement in compliance with the requirements of section 2511, Revised Codes, which rightfully included all lots and parcels of real estate, and other property not included in its right of way, assessable by the assessor of such county, and wrongfully included rights of way, pole, and transmission lines, distributing systems, and other similar property, assessable by the State Board of Equalization; that in such statement each item of property was listed separately, and a fixed value placed thereon by the officers and agents of the corporation; that the assessor of each county accepted the valuations so placed on such items of property, and assessed the same accordingly; that in making the assessment the value of each item was arrived at by the assessor by taking the original cost of construction, and deducting therefrom the depreciation, which resulted in an assessment at only 40 per cent. of the full cash value; that the property of each of said corporations is joined together so as to form a single, continuous, and entire property and plant, by reason of which an intangible value has geen created, and now exists, giving the property, as a whole, a value greatly in excess of the aggregate of the values of the separate items of property forming parts thereof; that the fact that all of the items of property, taken together, constituted a single and continuous property was not considered in making the assessment, and that the franchises, privileges, and contracts, net earnings, value of capital stock and outstanding bonds, of each corporation, were also not taken into consideration; that the State Board of Equalization met in regular session on the fourth Monday in July, 1919, and thereafter took up the matter of the assessment of the property of said corporations; that the board refused to change or correct the assessments made by the assessors by striking therefrom the assessments of rights of way, pole and transmission lines, distributing systems, and other similar property, and failed, neglected, and refused to assess the same as a State Board of Equalization, and permitted the assessments made by the county assessors to stand without change; that the board at said meeting ascertained that certain other rights of way, pole and transmission lines, telegraph lines, and similar property had not been assessed by the respective county assessors, and thereupon proceeded to assess the same for taxation at less than their full cash value; that the board failed to increase the assessments made by the county assessors to make them represent the full cash values of the properties assessed; and that the values for assessment and taxation of the properties of said four corporations were so inadequate and disproportionate, and so far below the full cash value thereof, as to show a gross abuse of discretion, and failure to exercise sound judgment, and for that reason were fraudulently made and do not constitute a lawful assessment.
The case is before us on a motion to quash the alternative writ of mandate issued herein, and to dismiss this proceeding, filed by respondents, which raises the questions as to the constitutionality of that part of section 1, c. 48, which vests in the State Board of Equalization the power to make an original assessment of the rights of way, pole and transmission lines, distributing systems, and similar property of said corporations, and the constitutionality of so much of section 6, c. 49, as requires said board to value such property for taxation on a proportionate mileage basis.
And section 6, c. 49, in part provides:
"The value for taxation of the property and plant of each telegraph, telephone, electric power and transmission line, canal, ditch, flume, and other properties to be assessed by the State Board of Equalization, shall be that portion of the total value of the entire plant and property wherever situated that the total mileage within this state bears to the total mileage wherever situated, after deducting from such portion the total assessed value of all property which has been assessed for taxation is this state by the county assessors of the several counties of this state, and the State Board of Equalization shall assess the same accordingly."
The provision of section 16, art. 12, of the Constitution, that "all property shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution," is clear and explicit in vesting in the Legislature plenary power in matters of assessment, including the power to designate the agency through which the assessment shall be made. Speaking with reference to this provision, in the case of Missouri River Power Co. v. Steele, 32 Mont. 433, 80 P. 1093, this court said:
In that case the court had under consideration the constitutionality of a statute which provided for the appointment, in certain counties, of boards of appraisers whose duty it was to fix the valuation of real estate for the purpose of assessment by the county assessor; and what is there said is applicable here, unless by some other provision of the Constitution the authority of the Legislature to confer upon the State Board of Equalization the power to make an original assessment of property, other than railroad property, is denied.
It is argued by counsel for respondents that the authority conferred upon the State Board of Equalization to assess the property of railroads excludes all other powers of original assessment, because the provisions of the Constitution are mandatory and prohibitory (section 29, art. 3); that the maxim, Expressio unius est exclusio alterius, applies;...
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