118 P.2d 1052 | Kan. | 1941
The opinion of the court was delivered by
On September 22,1941, the plaintiff brought an action to enjoin the county clerk and the county commissioners of Sedgwick county from extending on the tax rolls of the county taxes based on an alleged unlawful assessment of plaintiff’s property. At the time the action was filed a restraining order was issued, but no bond was then required. The defendant officers of. Sedgwick county filed their motion to have the state commission of revenue and taxation made a party defendant, and that motion was sustained. They also, filed a motion to dismiss the petition and dissolve the restraining order, and later filed a supplemental motion, the grounds of which will be hereafter referred to so far as is necessary. A motion of the state commission of revenue and taxation, to permit it to adopt as its motion the supplemental motion above mentioned, was allowed by the trial court. The trial court heard the motions and, as a result, on October 14, 1941, made its order setting aside the restraining order and dismissing the petition. The plaintiff promptly appealed to this court, which on October 15, 1941, made its order staying proceedings in the trial court and continuing the restraining order in force and fixing a necessary bond, which was given.
So far as is necessary to notice, the petition named as defendants only the county clerk and the county commissioners of Sedgwick county, and alleged that plaintiff owned and operated pipe lines in Sedgwick county and elsewhere in Kansas; that on April 1, 1941, plaintiff had filed with the state commission of revenue and taxation, hereafter referred to as the commission, its duly verified tax return; that on May 23, 1941, the commission, acting as a board of appraisers, entered its order pretending to finally assess plaintiff’s property at $1,458,345, a copy of that order being attached and made a part of the petition; that at its own request plaintiff appeared before the commission on June 9, 1941, and presented facts and reasons why the pretended assessment was arbitrary, capricious, fraudulent and illegal, and requested the commission as a board of appraisers to reduce the pretended assessment; that on June 24, 1941, the commission as a board of appraisers assessed plaintiff’s property at $1,448,315 and notified plaintiff by letter, a
The defendants’ first motion was to dissolve the restraining order; their supplemental motion was to dissolve the restraining order and dismiss the petition. Both of these motions asserted as grounds thereof that the placing and extending of the assessment on the tax rolls of Sedgwick county would not in any way prejudice or affect
Apparently in the trial court the defendants asserted a number of reasons why they believed their motion should be sustained, and plaintiff in its brief has anticipated that certain arguments would be presented by the appellees in support of the trial court’s ruling. In our opinion the matter is determined by the question whether the allegations of the petition are sufficient to sustain the relief sought against the county clerk and the county commissioners of Sedgwick county.
There is no question under the allegations of the petition but that plaintiff is a pipe-line company operating in more than one county. A brief review of our statutes with reference to taxation discloses that generally the powers granted to and duties enjoined on the former state tax commission are now vested in the commission of revenue and taxation. (See G. S. 1939 Supp. ch. 74, art. 24'.) The use of the term commission will refer to either as used in the statutes hereafter mentioned, all of which references are to G. S. 1935. It is the duty of the commission “to make appraisement and assessment . . . of gas pipe lines and property, of all oil pipe lines and property . . .” (79-1404, fifteenth.) It is the duty of such a pipe-line company to make and file with the commission annual reports containing certain required information (79-702) and unless the property is situated entirely within the limits of one county (79-711) the commission, acting as the state board of appraisers, shall assess the value of the property of pipe-line companies (79-704), the company having the right to appear before such board of appraisers before the assessment is determined (79-706), and after the assessment is determined to make application for the correction of the assessment (79-707). After completion of the assessment by the board of appraisers the amount of the assessment shall be apportioned by the commission among the several counties and the taxing districts therein (79-709). The results are certified to the
An examination of the allegations of the petition discloses not that the above statutes were disregarded, but that they were followed. The complaint, in substance, is that the actions of the commission in acting as the state board of appraisers and as the state board of equalization were arbitrary, capricious, fraudulent and illegal. We need not examine whether those, allegations were mere conclusions of the pleader, or whether other. statements of the petition, supplemented by the statements and showings made in the various documents attached as exhibits to the petition and made a part thereof by reference, were sufficient as pleadings of fact. It clearly appears from the petition and the exhibits that the plaintiff’s complaint is as to the correctness of the assessment. Under the statutes above reviewed, when that assessment has been made by the commission acting as the state board of appraisers, and when, after apportionment has been made and certified to the county clerk, then neither-the county clerk nor the county commissioners have any power or authority to raise or lower the assessment in any particular or to alter the apportionment of it. It does not appear from the statutes the county commissioners have any duties to perform or powers to exercise in connection with this type of assessment, and the duty of the county clerk appears to be purely ministerial. While it has been held that the performance of a ministerial duty may be controlled by mandamus or injunction (Martin, Governor, v. Ingham, 38 Kan. 641, 17 Pac. 162) the officer may not be controlled where the act sought to be controlled, or as here enjoined, is one which the statute compels him to perform (Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; Randel v. Knapp, 153 Kan. 437, 111 P. 2d 891). If the act of the county clerk were discretionary, a court would only enjoin where official power was clearly abused. Here the act complained of was that of a body over which the county clerk had no power or supervision whatever. (See Fairchild v. City of Holton, 101 Kan. 330, 166 Pac. 503.)
As has been noted, this action was commenced in September, 1941,
We are of the opinion the petition does not state facts sufficient to constitute a cause of action nor to warrant the relief sought and that the judgment of the trial court was correct and should be, and is, sustained and affirmed. The order of this court of October 15, 1941, staying proceedings is vacated and set aside.