Challiss v. Rigg

49 Kan. 119 | Kan. | 1892

The opinion of the court was delivered by

Horton, C. J.:

This was an action instituted in the court below by L. C. Challiss and a large number of other taxpayers of the city and county of Atchison, in this state, to restrain the sale of certain lots and tracts of land for taxes alleged to have been illegally levied thereon, and to have such taxes so levied declared void. A demurrer was filed to the petition by the defendants for various reasons. At the September term, 1891, the trial court sustained the demurrer, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The plaintiffs excepted, and bring the case here.

It appears from the recitations in the petition, that on Monday, March 3, 1890, at a meeting held by them, the several township and city assessors of Atchison county agreed to assess the real property of the county for the current year upon the basis of 25 per cent, of its actual cash value. On June 10, 1890, a majority of the board of county commissioners, sitting as a board of equalization, believing that the assessors of certain townships and of the city of Atchison had returned the assessed valuation of the lands in their townships and the lots in Atchison at a much less proportion than the basis of agreement made by the assessors, in order to equalize the assessed valuation of lands in the townships and the lots in the city of Atchison, that all might be assessed equally upon the basis of 25 per cent, of the actual cash value as agreed upon by the assessors, directed that the assessed values of lands in Shannon township, for the year 1890, as returned by the assessor of the township, be increased 24 per cent.; that the assessed values of lands in Lancaster township, for the year 1890, as returned by the assessor of the township, be increased 4 per cent.; that the assessed values of lands in Grasshopper township, for the year 1890, as returned by the assessor of the township, be increased 7J per cent.; that the assessed values of lands in Mt. Pleasant township, for the year 1890, as returned by the assessor of the township, be increased 5 per cent.; that the assessed values of lands in Walnut township, for the year 1890, as returned by the assessor of the toAvnship, be increased 1J per cent.; that the assessed values of lots in the city of Atchison, for the year 1890, as returned by the assessor of the city, be increased 61 per cent. The county clerk was instructed to add to the value of each tract of land as returned by the assessors of the townships, and to the value of each lot as returned by the assessor of the city of Atchison, the percentage of increase of value as made and determined by the board. To this order, one of the commissioners, Mr. Kiper, objected, and filed his protest, upon the ground that it was unjust, unfair, and inequitable, and not a proper exercise of the equalization power of the board. Under the law as declared by this court, the ruling of the court below cannot be reversed or modified. It was declared in Fields v. Russell, 38 Kas. 720, that—

i. county ering jtssessl7' ment“Where the board of county commissioners meets as a board of equalization, under the provisions of article 11, chapter Comp. Laws of 1885, such board has the right to raise or lower the assessment of any township by its own motion, and without a hearing or evidence upon individual assessments.”

It was said in the Fields case that—

“Counties are divided into commissioner districts, and the board is supposed to know the value of property in the county; and when the commissioners meet as a board and find that some townships have been assessed at a higher rate than others, it is the duty of the board, under this law, to equalize these assessments.” See also Gillett v. Treasurer of Lyon Co., 30 Kas. 166; Ritchie v. Mulvane, 39 id. 241.

In the Gillett case, Mr. Justice Brewer, speaking for the court, said:

“Prior to 1876 the law was settled that personal-property assessments could not be changed except after notice to the owner. (Commissioners v. Lang, 8 Kas. 287; Railway Company v. Commissioners, 16 id. 587; Railroad Company v. Smith, 19 id. 233.) At the same time the board of equalization had power to correct the assessment of real estate without personal notice to the owner. (Railroad Company v. Russell, 8 Kas. 558; Railroad Company v. Commissioners, 16 id. 587.) . . .

“In 1876 a radical change was made in the tax law. By § 74 of the tax law of that year, (being chapter 107, Comp. Laws of 1879,) the board of equalization is in terms given jurisdiction over the equalization of the valuation of personal property to the same degree as over real property. . . . The county board of equalization has power now to change the valuation of personal property, as it has that of real estate, by raising or lowering the same, and the old rule was changed by the legislation of 1876. We may add, in conclusion, that the various assessors of Lyon county met and agreed upon a basis of assessment; that afterward this basis of assessment was ignored by the assessors of certáin townships, and that the only action of the commissioners was in raising the assessments in these townships to the basis agreed upon at such meeting. This is simply an additional reason for sustaining the action of the county board.”

In Adams v. Beman, 10 Kas. 37, the syllabus reads as follows :

' aessment-no “In 1870, the laws of Kansas required that all property should be assessed at its true value, and also required that deductions for indebtedness should be from credits only; but notwithstanding these provisions of law, the township assessors for Shawnee county for that year, in pursuance of an agreement among themselves, illegally and intentionally assessed all the personal property in said county, except moneys, credits, and shares in national banks, at only one-third of its actual value, and assessed moneys, credits and shares in national banks at their full value; and they also illegally permitted the persons whom they assessed to deduct the amount of their indebtedness from their moneys and credits. Held, That said assessment, though illegally and improperly made, does not render all the taxes founded thereon void, nor does it authorize an injunction to restrain the collection of two-thirds of the taxes levied on moneys, credits, and shares in national banks.”

It is forcibly contended in this case, as it was urged in the Adams case, nearly 20 years ago, that as the statutory rule of assessment was disregarded by the local assessors of Atchison county and city, and as the real estate was only raised or equalized at a valuation of 25 per cent, of its actual cash value, this court should not only condemn the conduct of the officers in disregarding their statutory duty, but should also proceed further, and declare the taxes levied upon such assessments fraudulent and void. The allegations in the petition about the “arbitrary, unjust, illegal and unlawful” order and action of the board of equalization are mere epithets, not the statement of specific facts. A pleading is to be construed most strongly against a pleader, and hence the order of the majority of the board of equalization must be construed to qualify or limit the other allegations in the petition, as the order is made a part thereof. The protest of one member of the board is not as effective as the action of the majority. The statute permits a majority of the board of county commissioners, sitting as a board of equalization, to equalize the valuation of real and personal property. (Gen. Stat. of 1889, ¶ 6922.)

The plaintiffs are not entitled to an injunction on the ground that the assessors and the board of county commissioners equalized the value of the property described at less than its true value. Although it is alleged in the petition that the property was returned by the assessor at its true value in money, considering the other allegations and the arguments in this court, it may be assumed, we think, that the property had been assessed at less than its true value. If the property had been actually assessed or equalized beyond its true value in money, a different question would be presented. If we were to decide that the failure of the board of equalization to fix the value of the' property in Atchison county and city at its true value in money avoided the taxes levied on the increased valuation, it would logically follow that all the taxes would be invalid on account of the failure of the assessors to comply with the provisions of the statute. (Gen. Stat. of 1889, ¶¶6861, 6904.)

4. Tax proceedva?iáatea.in' While the county officials ought to be censured for a willful disregard of their duties in not assessing property at its true value, yet this court will not invalidate the taxes levied, on the ground solely that the assessors intentionally or accidentally assessed property at less than its value. (Adams v. Beman, supra.) Theoretically, it might be said that all taxes ought to be void unless property is valued precisely as the terms of the statute require, but such a construction would be fatal in its consequences and cause “confusion worse confounded.” The serious results of such a ruling are fully stated in the Adams case. We must look to practical results and not to theories only. If we were to hold that the taxes levied as alleged in the petition were wholly void, this would not punish the county or city assessors, nor the county commissioners. It would, however, be disastrous to the people of Atchison in carrying on the financial affairs of such county and city. If the legislature were to provide for the infliction of severe penalties upon assessors or other officials who willfully disregard their duties, or if the selection of assessors were changed, so that they would be relieved from the influence of those by whom they are elected, and whose property they are required to assess, perhaps the vicious practice now so generally prevailing concerning the low assessment of property might be remedied. But a decision of this court annulling the taxes levied upon property at less than its true value would be no efficient remedy, and would cause untold complications. Under such a decision, it might be impossible to collect any taxes within the state.

3. County meeting ana It is finally contended that the order of the county board of equalization was made on the 10th day of June, 1890, and not on the first Monday of June, 2890, which was the second day of that month. (Gen. Stat. of 1889, ¶ 6922.) The statute prescribes that the county board of equalization shall meet on the first Monday of June, and “then proceed to equalize the valuation of real property.” It appears from the allegations in the petition that the board of equalization did meet on the first Monday of June, 1890, and on the 10th day of June made the order complained of. We think, if the board met on the day appointed by the statute, it had authority to ad- „ , , . iourn from time to time to act upon and complete the equalization of the property of the county. (1 Desty on Taxation, p. 499.) It is specially prescribed by the statute relating to assessment and taxation, that “the failure of any officer or officers to perform the duties assigned him or them upon the day specified does not work an invalidation of the proceedings.” (Gen. Stat. of 1889, ¶ 6993.)

The judgment of the district court will be affirmed.

All the Justices concurring.