| S.D. | Jul 6, 1898
Lead Opinion
Plaintiff, the owner of 15 $100 shares of the defendant’s b^ank stock, seeks to recover dividends amounting to §15 declared thereon, which the defendant pursuant to statute, insists upon retaining until plaintiff has fully paid all the taxes levied upon such stock for the year 1897. The validity of certain proceedings by the state board of equalization with reference to plaintiff’s shares is the only point presented by this appeal, which was taken from an order sustaining a general demurrer to a complaint in which the material facts are properly averred. For the year 1897 the legal! y authorized taxing officers of the city of Sioux Falls and the county of Minnehaha assessed appellant’s shares regularly at $390, and duly equalized and returned the same at §330, which was something more than their cash value. ‘ ‘That upon the first Monday of August, 1897, the state board of eqalization of the state of South Dakota increased the assessment of bank stocks throughout said Minnehaha county by adding thereto 80 per cent, of the assessed value thereof, as shown by the returns made by the auditor of the said Minnehaha county, and did not make any material change in the assessed value of other shares and
By section 42, c. 28, laws 1897, it is made the duty of the county auditor to adjust and correct assessment lists to conform to changes made by the county board of equalization, and make duplicate abstracts thereof, one of which is to be filed in his office, and the other transmitted to the state auditor, on or before the fourth Monday of July following each county equalization, for the use of the state board of equalization, which meets at the seat of government on the first Monday of August in each year. This section provides a general outline as to the substance of such abstract, and the property, real and personal, therein mentioned, is divided into 13 separate and distinct classes, the first two and the last of which are, respectively: “(1) The whole number'of acres of land listed in the county and the total value thereof. (2) The total valuation of town lots. * * (13) The total value of stocks or shares;’3 and, in addition to the property thus specified, the classification, and the section concludes with the following generality:
It is contended by counsel for appellant that these abstracts sent by county auditors to the state auditor constitute the only basis for the action of the state board; that the classification of property therein contained must be strictly adhered to; and that said board is without authority to divide the class, and raise the assessment of bank stock, without increasing the assessment upon ‘ ‘other stocks or shares. ”
The jurisdiction of the board being special, acts not authorized by the express terms of the statnte are without validity. 1 Desty, Tax’n. 498. Section 45, c, 28, laws 1897, provides the following method, which the state board must substantially pursue: If the aggregate assessed valuation of the land in any county appears too low when considered with other counties of the state, as shown by the abstracts furnished as above indicated, the board shall equalize such assessment by adding thereto “such rate per centum as will raise the same to its proper proportionate value and by deducting from the aggregate assessed value thereof, in every county in which said board may believe the valuation to be too high, such per centum' as will reduce the same to its proper (proportionate) value.” For the purpose of equalization, it is expressly provided that the board may, at its option, consider the land and town lots of a county as a single class, and no other departure from the classification made by the county auditor pursuant to section 42 seems allowable. Said board has the power and shall “equalize the assessment,of personal property by adding to the aggregate assessed value of any class of personal property of every county in which they believe such valuation to be too low
It is clear from the foregoing and kindred provisions of chapter 28, which, taken together, constitute a complete system of taxation, that for the purpose of equalizing values, the state board is limited to the corrected abstracts returned by county auditors, and must accept as the unit of computation the classification therein contained, compare each class, respectively, with others of a like class, and is without power to divide a class for the sole purpose of increasing the assessment of a part thereof, leaving the valuation of like property in the same class unchanged. It was certainly without warrant of law, unjust, and equivalent to an individual assessment, for the board, as alleged in the complaint, to select the item “bank stock” from its class, which included all kinds of “stocks or shares,” and assess the same “throughout the entire state at 60 per cent of the par value thereof, regardless of the actual value. ” In con
Concurrence Opinion
It is clear that the abstracts or returns required to be forwarded by county auditors to the state auditor, and upon which the state board of equalization is required to act, should conform to section 42, c. 28, Laws 1897., If county auditors comply with the plaio requirements of .the law, the state board can have before it no other classification of property than that provided for in that section. It, therefore, seems clear that the legislature intended to make one classification for county boards and a different one for the state board of equalization. The latter board is bound by the classification made by the law, and cannot make classes of its own, nor can it subdivide any class for the purposes of equalization. It seems clear to me that the word “class” as used in section 45, relates to the items mentioned in section 42, and not to those mentioned in section 16, because, as has been shown, the items or classes provided for in section 42, and not those in section 16, are, or should be, before the state board. In section 16 bank stock constitutes one item or class; stock other than bank stock constitutes a distinct and separate item, while in section 42 all stocks are included in one item or class. If the state board, in effect subdivided the class, which according to section 42, in eludes all stocks, and dealt with bank stock as a separate class, its action was unauthorized, and, so far as it affects plaintiff’s stock, cannot be sustained. For these reasons I concur in the conclusion that the order of the circuit court should be re versed.