*1 494 argu question closing are constrained hold that the to is now
We come properly three or us. P.I.E. On before counsel ment of counsel, discussing the occasions four In addition to the claimed errors above truck of the by the driver taken actions discussed, plaintiffs present argue sev- going “fish car east the Weimer pertaining eral others to the admission highway the west into across the tailed” respect exclusion of evidence. With truck, in P.I.E.’s in front of lane bound good those we are of the view that no you do” jury, “What would quired of purpose dis- would be served further com Plaintiffs such circumstances? carefully cussion. We have examined argument prejudicial was plain that such light record in all of the contentions jury improper gave an it because disagree- made we find ourselves care conception of the standard of plaintiffs’ general approach ment with court. it had instructed been which singly cumulatively the claimed errors or jury it is considered When prejudiced plaintiffs rights in their to a proposition that on the basic instructed Accordingly, fair trial. judgments en- a reasonable man that of standard tered trial court the several cases prudence cir ordinary under all of the 61, must be affirmed. Rule W.R.C.P. cumstances, appear may to the uniniti Affirmed. super objection was rather ated complaint Nevertheless, plaintiffs’ ficial. mischief merit. The not without some in tends argument is that it
of such an role of jurors depart their from
fluence step of a
impartiality into the shoes practice As rule a
litigant. general, a such and, depending upon
is condemned circumstances, may preju may not be QUINCY CHICAGO, & BURLINGTON Company Insurance dicial. British General corpora COMPANY, RAILROAD a 683, Company, Simpson 265 Ala. Sales v. tion, Appellant (Plaintiff below), Mo., Williams, 763, 768; Fisher v. 93 So.2d v. 263-264; 256, 70 Annotations 327 S.W.2d BRUCH, Hudson, Albert P. Walter Rich W. 937, is not sus A.L.R.2d 945. Luman, Hillard, ard J. Francis and Zan Lewis, constituting ceptible ready a answer. Much is left State Wyoming, Ap of the State of the trial Bunce the discretion of court. pellees below). (Defendants 24, 23, McMahon, Wyo. 42 P. 26- 6 No. 3268. course, difficulty here, 27. And one argu 'plaintiffs’ contention that Supreme Wyoming. Court of ruling prejudicial highly ment was 23, March 1965. new trial a court on motion
trial. effect the held prejudicial. that as
argument Be was not may, persuaded would we that we rule departing warranted in jurisdiction. If
usually this followed in matter, timely ob are to
we review
jection during must made the course argument. rule are Reasons for the Wyo.
explained Spears, State Edwards v. P.2d
Harris, Wyo., P.2d Plaintiffs 95. wé meet result
did not the rule as a
'496 Street, Denver, Colo., appel- C. J.
lant. Atty. Raper, Gen., F. A. Fred Mill- John er, Sp. *3 Atty. Gen., Cheyenne, Asst. appellees. PARKER, J.,
Before and C. HARNS- McINTYRE, BERGER and JJ. Mr. HARNSBERGER delivered Justice opinion court. The Chicago, Burlington Quincy & Rail- corporation, road Company, appeals a from judgment a of the district court affirming an order Equaliza- State Board of fixing, tion purposes, for taxation the 1962 appellant’s properties value of Wyoming at $20,719,660. the sum of has moved strike cer- appendices appellees’ brief, tain attached to A, namely Appendix which consists of ex- board; cerpts Appen- from minutes of the B, tonnage dix a schedule handled by appellant year each from 1933 to inclusive, reports as shown annual its Wyoming to the Public Service Commis- sion-, C, Appendix per- a showing schedule roadway appellant’s prop- mile valuation of erty county years Wyoming one 1964, inclusive; Appendix F, from 1919 to depots appellant’s a of certain of and listing houses; G, Appendix a section schedule showing number in which of miles vari- used; Ap- weight ous classes of rails pendix H, abstract of a 1961 statistical States, pow- showing purchasing United 1960; dollar, Appendix er of the appellant’s I, part a schedule taken Public reports Wyoming annual to the part from “offi- Service and Commission Equal- of the State Board cial records” appellant’s ization, showing book values of years 1957 properties in equipment road and inclusive; J, a Appendix schedule equipment and listing unidentified road L, schedules Appendices K and properties; Commission’s Commerce showing Interstate 1961-period reproduction figures cost specific ref- railways prices Krohl, Chicago, Cubbage Class-1 and C. W. R. T. West, B. &C. Chicago Uchner, and North erence to Ill., Henderson, Godfrey, & Kline Colo, Sou., Quincy, Uchner, Cheyenne, Peck Col. L.W. D. David Pacific; M, Appendix government, a other. In the Union second the trackages represented by listing schedule unidentified agency, the administrative anyone. against various states. consequence, proceeding type in the latter of case is note, however, appellees’ We brief more in the inquiry nature of an to enable Appendix appellant’s identifies asJ agency administrative to arrive at a listing Appendix being M as a just and fair determination. The fact that appellant’s trackage. the conclusion reached governmental Appellant’s is also di- motion to strike agency unsatisfactory party af- against rected certain comments vari- appeal fected and an is taken to the courts ap- incorporated in ous other statements does not alter the situation. *4 brief, pellees’ but comments and those This difference upon has bearing the nothing are more than ex- statements question of what agency the administrative pressions opinion. of the writers’ may take or privileged was to take into con- Appellant’s upon above-desig- tire attack sideration in arriving at a conclusion. question appendices nated the involves Similarly, it bearing upon has what should account this court should take into brought before the district court when legality upon when to consider the called upon it is called to evaluate the correct- judg- of a district court’s correctness propriety ness of the administra- appellate tribunal sitting when as an ment agency’s tive action or decisions. upon appeal an an administrative Although body. quite possible it is certain of the material contained in the opinions Previous court have of this appendices may to the brief have been ad upon appeal indicated that to the district hearing missible in the before the board court and de from administrative orders way judicial notice, sometimes called only cisions before that matters adduced notice, official or 2 administrative Am.Jur. agency considered, may although, 2d, Law, 191-192; 385, pp. Administrative § necessary, solely upon bearing evidence 73 Public Administrative Bodies and C.J.S. influence, question fraud, alleged undue 123, 444; Procedure pp. Annota cetera, may et be received. tion, 18 A.L.R.2d the district court could not have based its determination of necessary ap It is therefore for an upon the correctness of the board’s decision party bring district pealing court assumption the board had such proceedings the entire record of the which knowledge or had such information before body, had were before the administrative it. and, transcript if a of the Springs Grazing In Bunten evidence is not available or is deemed to v. Rock insufficient, Ass’n, Wyo. P. this must establish the necessary said it not the State deficiency by proof. Ordinarily was other this only upon brings act evi- to the attention of the district court Board produced it, implying upon dence before all the adminis thus the evidence which mat- body justify might take into account might trative which board acted and knowledge ters which within its even its decision. But there are material some though they appear evidence. did not differences between the functioning upon appellant’s to« In But in motion passing divers administrative authorities. one propriety dealing strike we are with the proceedings there are con class are where Equalization having another, proceed testing parties. the State Board of In information, matter, In the considered historical ings no contest. where there is knowledge of its adversary. or material within instance, proceeding first appear in the first, did not In members but which it is not. the second proceedings as sent to pitted record of its parties against each to the contest are court, district court nor adduced granted, evidence in and their contents will that court. We are concerned with not be considered. brought matters the attention of the Although company suggests railroad district court and which that court had presented fundamental by its opportunity upon ruling to consider when appeal is “how should an interstate railroad propriety author- administrative be valued and purposes?” assessed for tax ity’s determination of the taxable value of proper inquiry here is whether the dis-
appellant’s properties Wyoming. trict court find, erred in failing to the evidence judicially before it and matter Bunten, authority Under the noticed, that the board’s action was either appeal when the from the board’s decision arbitrary, capricious, despotic, or fraudu- court, opportunity taken the district was words, lent. In other Did the board act present produce before the court illegal impropriety? material, knowledge evidence of all the agen information which the administrative At the outset of hearing cy arriving had at its con considered appeal from the de Therefore, if such matter clusion. Equalization, cision of the State Board of placed before the district court so that the district court plain made it *5 same, may might have considered the we hearing before it would not be a trial de legality judging not consider it in and novo; questions that of whether the unit affirming correctness of the district court’s system comes under Wyoming law or appendices action. Insofar as the criticized whether ways valuing there are better for concerned, are not done. Nei this was the railroad property than that subject appear ther matter does that their by used the board were immaterial. So incorporated any report in official upon appeal also questions to this court the State and offered of the merit of the unit or the merits judicial in evidence notice under the any other assessing method of valuation provisions 1-167, 1-166 and W.S.1957. §§ purposes for tax are also immaterial. Perhaps the district court could have taken pointed As discussing appel out in judicial notice of certain of the matters lant’s “appendices” motion to strike certain sought board, by now to be included appellees’ brief, the district ac court’s attention, if had been called to its but this tion the order affirming of the board must they judicially we them will not notice when judged light and upon appeal are advanced for the first time appeal evidence submitted to the court on to this court. having previous in mind of this decisions now before us is sole issue regarding prerogatives court of an ad As of the district court’s de correctness agency ministrative knowledge to utilize cision, acquired we will examine that which during per its functioning and in the district court had it. Natural before forming By its duties. those decisions the Springs, Wyoming Gas of Rock Consumers although district court was informed that Casper, v. Northern Utilities Co. of 70 contemplates property Wyoming law valua 779; Wyo. 225, 767, P.2d 247 Chittim v. purposes tions for tax are be their “true Co., Belle Fourche Bentonite 60 Products private at (by passed values” sale statutes Wyo. 235, 142; Claughton P.2d v. decisions, 149 original since the now “fair John son, Wyo. 447, 47 re value”), 38 P.2d such value is but a matter of 527; Wyo. 536, hearing 41 denied 47 P.2d opinion upon which the minds of men often 141, Wyo. P.2d Thorley, Mercer v. 43 disagree; point where excessive 692, 696; John, Wyo. Gore begins indefinite; valuation appellant’s P.2d 556. It follows that presumed board must be to have acted appendices, motion to strike the which were legally honestly; that there is no such brought not to the attention the district thing hence, justice absolute exact
49$
operation,
the 'amount
earnings
net
always possible;
is not
fixing value
maintenance, its
operation
expended in
ad-
discretion
control the
cannot
courts
betterments,
improvements
property
fairly and
tribunals
hon-.
ministrative
last declared
dividends
course,
rec-
the amount of
although,
exercised,
estly
preceding,
year
paid during the
next
evidence
substantial
disclose
ord must
information which
such other
Bunten
with
decision.
support
the board’s
shall
may require, says, “which value
Ass’n, supra;
board
Grazing
Springs
Rock
Hudson,
account and be considered
be taken into
Co. v.
Ray McDermott &
see J.
rail-
arriving
value of such
true
364.
370 P.2d
franchise.”
and its
road
evidence to
absence of
In the
required to
contrary,
the district court
anything
fail
discover
We
ac
board acted
members of the
assume the
required
the district
the record which
in 39-
cording
the directions contained
§
take
ignored
failed to
find that the board
presumed
W.S.1957,
officers
as such
reported
matters
into consideration the
so
This would
performed their duties.
to have
That the board would
to it
the railroad.
ac
become
effort to
making
entail their
in the
accept
returns either
those
methods
quainted
various
and familiar with
bearing
in their
amounts shown therein or
taxation
which values for
and means
established
the ultimate valuation
they
Thus
might be reflected.
purposes
proof
they
tax
pertain
knowledge
gained
W.S.1957,
would have
some
By
considered.
properties.
ing to the values of railroad
to be
are said not
such returns
railroads
Also,
entitled to credit
court was
the district
conclusive as to the value of
having coupled these accum
the board with
the board
Criticism is voiced at
knowledge and information
ulations of
*6
with
arriving at an assessed valuation
testimony
presented to it
and evidence
such
having
a fair value. While
out
found
Springs
appeal.
Bunten
Rock
procedure
pursued
the board
a
as-that
Ass’n,
Grazing
supra.
approved,
alone
be
this circumstance
cannot
complaint
Specifically, the basic
Realty
Scott
not warrant
reversal.
would
to
the board
railroad seems
Equalization,
Company v.
Board of
State
adopt
failed
it refers to as
to
point
made
Wyo.,
Although the is assumed to be 21 ments, written, plaintiff’s property both oral and are exhaus- then the value of
5Q1 Since, $98,665,048. ing figures represent Wyoming in thereon would thought company claims, percent equalized he was an 6.3 value. Ad- as mittedly Burlington’s Wy- gave in no entire is located director consideration value earnings Burlington oming, Burlington the value of whole nor to $1,566,111,873 stock and if its debt value. system would have to he Or, if Wyoming’s correct. assessment is There is a total absence of evidence to Wyoming assessed in is as- valuation any show that the had director information percent, sumed to be at 25 the indicated any finding figures or basis for sub- system in value excess of one would still erroneous, Burlington mitted to be or billion dollars. making changes which he made. If figures there was indeed changes, Such the com- no basis for his described unrealistic; pany’s clearly making then his action in them witnesses as was without figures the witnesses maintained such ex- sufficient information and therefore arbi- trary any adopted figures according to the rule ceeded actual the value of railroad, County School District No. Fremont unless the valuation were reproduce Boundary District on what it cost to Board based would For Fre- County, supra. mont Burlington system entire new testimony price levels. This was not chal- states, Most the evidence this case lenged or contradicted. establishes, adopted system have a unit valuing pur- for taxation suggesting I am not poses. just It would seem to be a Burlington, was, extensive as should system. However, equitable it is conceded binding considered as conclusive in this or Equalization the Board of is not bound to say, however, I do it was the case. accept system any particular other Board, duty of the to have system. nevertheless, say, I would it should “all able information to obtain.” system capable have some being which had If it before it insufficient information explained taxpayer described and when a reasonably which it could determine inequality makes the kind of plaintiff’s property true value of plaintiff which has made this case. Wyoming, upheld. its action not be should County, School It See District No. Fremont has come attention to our several Boundary District In and that buildings For times been have valued and County, Wyo., by application Fremont 351 P.2d 116. assessed of a formula known is, System. however, Boeckh There As indicated in the District School No. 9 no indication in record before us in case, it necessary litigant for a comparable any this case that formula or that a board had sinister show some inten- valuing was used for the of railroad in order relief tion to obtain from the Admittedly, action. board’s members of the individually coming Instead of forward with evidence *8 comprehensible and showing honest sincere and conscientious men. a clear and meth- It cannot be valuing property, said the Board has acted of od the railroad Board faith; procedure Equalization bad but its assessment of has shown that for all something figures leaves to be desired as far as intents and it has taken legality is concerned. from nowhere and them the used as assess- categories plaintiff’s ed value of of various The director of ad the Board’s valorem property. uphold It now to this ac- asks us department tax Board did testified the not ground tion on the there is an absence that any with true at start value and did not time proof of to Board meant show that the to try to determine true value. He worked arbitrary be or that it acted bad faith. proper what out he considered was “assess- by taking ed This done the valuation.” was One confirmed of Board members Burlington’s chang- annual return and respect tax what the with director testified to poses. or In the case under considera- any system, basis now lack formula of tion, factors, ignored and substan- indi- not determining He also for valuation. reasonably considered, tially factors “true value” determina-
cated there was no tion; legislature prescribed itself figure at which the has arrived that assessment ap- be and in the presumed” represent as factors to considered used “roughly was percent valuing of railroad of the value of proximately Wyoming. This member fur- railroad in value; True These factors are: val- weight, “very if verified that little” ther stock; capital company’s ue of the debt any, given to the value of stocks was value; earnings. and its It is for us not earnings company. Nei- of bonds or to say, say, wheth- or even for the Board to explain attempted ther the witnesses given be to these er consideration should made, actually nor how assessment requires law items. The itself this to be basis, any, for con- there would be if attempted done. An assessment without equal sidering assessments. it to other proper giving due to such consideration W.S.1957, only arbitrary illegal provides factors is not as but Section well. returns railroads to the Board from include Equalization, which returns are to If the and did Board able to show capital value showings of market that it had used which would show factors stock, no market then the or if value true equivalent produce result, could an we
value; value; and its debt departures more tolerant of from strict specifies all earnings. The section then that compliance with the statutes. But this has shall “taken into con- this information shown, not been It done. has not for ex- in fixing the Board value. sideration” ample, depreciation actual that costs less testifying Those on of the Board behalf factor; and obsolescence were used as a apparent meaningful made it no con- that any has not that for the shown substitute sideration, any all, given to such if statutory earnings factor of was used. In value, debts, earnings. factors stock as short, factors, any there is no that explanation is that stock any or method kind were em- actively traded. ployed in valuing assessing plaintiff’s property. is, course, precluded The Board not indicated, I weight recognize, already as that the- giving the fact that stock expected actively traded, accept Board not without but assessment procedures figures company; Board submitted should such clearly, accept challenged in it need can show when the unit method of valu- regard, investigated ing property, proposed plain- it has the stock as tiff; value, any earnings the debt and the the court not under should railroad; given judgment its an assessed and that has circumstances substitute proper valuing the cir- the Board due and consideration under that of in the matter of particular assessing property. cumstances of case to these factors. my opinion, however, In we should do- Co., Co., v. Hud- Ray Ray McDermott & Inc. what was done & McDermott J. J. son, Hudson, supra. P.2d we Inc. v. condemned We should reverse the case with the action of instructions arbitrary proceed plaintiff’s prop it failed to consider a neces- revaluation *9 sary erty important determining conformity requirements; factor pur- gross-product the value oil for law. tax