96 Tenn. 496 | Tenn. | 1896
In this case a petition was filed in the Circuit Court of Davidson County by the State, on the relation of Peter Turnejq Governor, E. B. Craig, Treasurer, and W. S. Morgan, Secretary of State, constituting the Board of Examiners of assessments of the distributable property of the various railroads in the State, asking that a writ of mandamus might issue, requiring James A. Harris, Comptroller of the Treasury of the State, to receive from said board all the records of assessment of this property for the year 1895, and to turn over these records to the State Board of Assessors and Equalizers, and that a writ of mandamus also issue to Geo. C. Porter, John C. New, and W. C. Fulcher,
In accordance with the prayer of this petition, an alternative writ of mandamus was issued, to which the defendants filed a demurrer, and, at the same time, made a return or answer. By agreement, the demurrer and the answer were heard together by the Circuit Judge, the result being that a judgment was given awarding a peremptory writ. Erom this judgment the defendants have appealed to this Court.
In the petition the relators have set out, with great fullness of detail, the requirements of the statutes in the assessment of the distributable property of the railroads, including the' methods to be pursued by the Board of Assessors in arriving at its character and condition, not only to enable themselves to arrive at a reasonable conculsion as to its value, but also to furnish a basis for the work that the Board of Examiners have to do when the records of these assessments reach them for examination. To this end, the relators allege that the Board of Assessors were required to embrace in this record all the facts essential, under the statute, in making these assessments, so that, when it came to the Board of Examiners, they might find reliable data therein upon which to discharge the duties imposed
In their answer or return to the writ the defendants deny that they have failed, in any respect, to discharge their statutory duty, and they further deny the right of the examiners to call upon them for additional evidence, and insist that, having closed the record and deposited it with the Comptroller for transmission to the examiners, all control over it, or power with regard to the assessment of taxes for the year 1895, has ended.
To the proper understanding of the issues in this case, and the respective duties and rights of these two boards, as well as the relation of the Comptroller to them, it is necessary to examine the various statutes of this State providing for the assessment and taxation of railroad property.
By Chapter 78 of the Acts of 1875, the Legislature, for the first time, undertook to formulate a system for this purpose. In Section 1 of this Act it was provided “that each railroad company owning and operating a railroad in the State shall, on or before the first day of May of each year, make out and file with the Comptroller of the Treasury, a complete schedule of all its property — real, personal, and mixed — setting forth therein the length of miles, or fraction thereof, of its entire roadbed,
Litigation resulted from this act, and this, added to the' discovery of real or apparent defects in it, led to the passage of the amendatory Act, found in Chapter 19 of the Acts of 1877. By this the term of office of the Assessors was made two years, and they were required to elect a president and secretary, the duty of this latter officer being to “carefully preserve and file away all reports, documents, and proof taken or used by said Assessors.” It was also provided that all proof taken by the Assessors should be reduced to writing, and sworn to and signed by the parties giving it. But the most important amendment of the original Act is found in Section 13, which provides that the action “of the Board of Examiners constituted by the sixth section of the Act of 1875, shall be final and conclusive; and that this board shall examine the questions of
The Legislature, by Chapter 104 of the Acts of 1881, again amended the Act of 1875, and provided that, in addition to the requirements of Section 1 of that Act, each railroad company should include in its schedule the cost of construction and equipments, as near as possible; the amount of dividends declared; the amount and value of its stock in the market for the year preceding; a full report of its outstanding indebtedness, together with a statement of the property mortgaged to secure its bonds, and, lastly, the market value of its bonds for the preceding year. The only other amendatory statute bearing on this investigation is found in Chapter 16 of the Acts of the second extra session of 1882, when, for the first time in this State, railroad property is divided into two classes — -to wit, distributable and localized — the first of which is to be assessed and valued under the provisions of the Act of 1875, and the various amendments thereto, set out above.
Rejecting all the repugnant sections of the original and amendatory Acts, and taking this legislation as a consistent whole (Sedgwick on Stat. Con., p. 68;
1. The duty of each of the railroads is, by the first of May of each year, to file with the Comptroller schedules containing certain distinct statements, in conformity to the directions of these statutes.
2. These schedules are to be turned over by the Comptroller to the Assessors for their use. If none are furnished, or, if furnished, they are unsatisfactory, the Assessors may ascertain the facts which the schedules should contain in such manner as they may deem best. If they see proper to resort to proof, it must be on notice, and the proof must be reduced to writing, signed, and sworn to by the parties giving it.
3. They may jointly or singly inspect the property of any or all railroads in the State for the purpose of gathering facts to aid them in their valuations, but these ■ facts, if used by them, must be preserved in record form.
4. When they have acquired the essential knowledge and made their valuations, they must certify the amount to be taxed to each company, ‘ ‘ with all the facts,” to the Comptroller, who is then to turn over the £ ‘ record ’ ’ so made up to the examiners.
5. The Board of Examiners, upon receiving it, are to make their examination on this record, and if they find that the assessments of the Assessors are too high or too low, they may change the same
With these preliminary statements, we come to examine the questions of controversy in this cause. The objection is rather suggested than urged, that this proceeding ought not to be maintained, because the relators are three citizens, not even alleging that they are taxpayers, or that they have any special interest in it. To this suggestion it may be replied, that, while the relators institute this action as citizens, they also do it as officers of the State, who aver that certain duties, which the law requires them to perform, depend for their performance upon the prior discharge of official obligations, which, it is insisted, defendants persistently refuse to recognize. In addition, however, as was said by Judge Fullerton, in People v. Halsey, 37 N. Y., 344: “Inasmuch as the people themselves are the plaintiffs in a proceeding by mandamus, it is not of vital importance who the relator should be, so long as he does not officiously intermeddle in a matter with which he has no concern. The office which a relator performs is merely the instituting a proceeding in the name of the people and for the general benefit.” Certainly, it cannot be affirmed that these relators are £ ‘ officious intermeddlers, ’ ’ or have in view any other than the public good.
But the most earnest resistance is made by the defendants to the claim of the Board of Examiners of the power to remand the assessments in question
We have already set out the salient provisions of the various Acts of the Legislature (save that of 1895, which, it is agreed, does not apply here) with regard to the assessment of railroad property. We think a careful reading of these Acts will satisfy anyone that these two boards occupy important, if not vital, positions in this peculiar system, and that the work of each is essential 'to its successful operation. It was properly said, in argument, that the Board of Assessors in this scheme are the £ ‘ record makers,5 ’ while the action of the Board of Examiners determines that which was before indeterminate, and makes final and conclusive the work of - assessment. For it may as well be said here as elsewhere that the assessment is not complete, so that the tax levied by the State can be applied to the railroad properties until the work of the Assessors had been passed on by the examiners. Louisville & Nashville Railroad v. Bate, 22 Fed. Rep., 481.
But not less explicit are these statutes as, to the duties of the Assessors. As before stated, they are the 1‘ record makers. ’ ’ This legislation assumes that the railroads of the State will file with the Comptroller, for the use of the Assessors, full and complete schedules of their property, with all necessary
The same statute which requires the Assessors to gather facts for a record also provides that the examiners shall make their examination on this
Again, it is insisted that, to give by construction to the Board of Examiners the right to call upon
Among these rules, we think the following are well established:
1.Whenever it appears that “the return fails to answer the important facts alleged 'in the petition, every intendment and presumption will be made against it.” High on Ex. Leg. Rem., Sec. 461.
2.That allegations not denied, nor confessed and avoided, are taken to be true. Merrill on Mandamus, Sec. 274.
3.That “if the relator moves for a peremptory writ upon the pleadings, this motion is equivalent to a demurrer to the return for not stating facts
Practically, this case has been submitted to us on the pleadings. In view of the disposition we propose to make of the controversy, it is unnecessary .to state them with great detail. It is sufficient to say that relators charge the defendants with serious official neglect.' They allege that their record is made up exclusively of imperfect schedules filed by the railroads, lacking largely in essential matter, and minutes of the inspecting tours of the Assessors, no one of which contains a statement of a single fact of worth to the examiners in the work they have to do; and that, as to six railroads, there is neither schedule nor minutes, and that the valuation of the Assessors as to' these is altogether arbitrary. After stating omissions to be found in all the schedules, the relators indicate particular roads with specific defects in their schedules. Among the omissions specially complained of is the failure to state the aniount of capital stock, the value of this stock, the amount of outstanding bonds, the value of these bonds, th'e gross receipts, and the dividends paid. The petition avers that, by reason of these defects and omissions, it was impossible for relators to ascertain and determine the value of the railroads to be assessed.-
Replying to these averments, the Assessors do not deny that the record sent to the examiners consisted
Without further analysis of the pleadings, we have, then, a record before us in which the Assessors admit, either in express terms or by necessary implication, serious official delinquency — a negligence and indifference in the discharge of statutory duties which is inexcusable, and threatens to render abortive a system of assessment the work of years of legislative experiment. But the question still remains, even in view of this, will the Court, while it has the power, interfere by the writ of mandamus? It'
“In exercising such discretion, the Courts will consider all the circumstances, reviewing the whole case, with due regard to the consequence of its action.” Merrill on Mandamus, Sec. 63; Alyn v. Seaver, 138 Mass., 331; People v. Ketchum, 79 Ill., 212; People v. Genesee, Circuit Judge, 37 Mich., 281.
As was said by the Supreme Court of Mississippi, in Effingham v. Hamilton, 68 Miss., 523: “It is not in every case of clear legal right, and the absence of sufficient legal remedy, and where, therefore, mandamus is an appropriate remedy, that it will be issued. It is well settled by numerous decisions, that a sound judicial discretion is to be used, and where the circumstances make it unwise and inexpedient to allow this writ, to refuse it when sought to enforce merely private right.” The Court then stated the embarrassing condition of that- case, and added: “In view of these complications, and the evil consequences likely to arise affecting public interests, we deem it proper to deny the remedy, sought. ’ ’
To the same effect is the text of Spelling on Extra Relief, Yol. 2, Sec. 1372: “The writ will usually be refused, notwithstanding a clear right is shown, if, by granting it, public interests would
In the light of these principles, we will examine this cause. It is shown that on the sixteenth day of October, 1895, the Comptroller, having already received the records in question from the Board of Assessors, as was his duty, turned them over to the Board of Examiners. On the twenty-ninth of October the latter board .addressed their first communication to the . Assessors, indicating dissatisfaction with their work, and asking for the proof upon and the rule- by which they had made their assessment of the railroad properties. On the same day the Assessors replied to this communication. On the sixth of November these records were delivered by the examiners to the Comptroller, James A. Harris, with a communication instructing him to turn them over to. the Board of Assessors, to whom they were to be recommitted for such supplementary work as, it was insisted, would make them conform to statutory requirements. On the same day the Comptroller, declining to receive or deliver them to the Assessors, returned them to the office of the Secretary of State. The efforts of the examiners to induce the Assessors to receive these records, or file supplementary ones, having proved ineffectual, on the fourteenth of December the petition for alternative mandamus in this case was filed and granted. In the return to this petition and writ, the respond
In view of this averment, admitted to be true, on this motion for a peremptory writ, should a writ of mandamus be issued? Three months of the year 1896 have nearly expired, and it is probably true that, as the railroads were engaged in paying their taxes at the time these proceedings were instituted, the greater part, if not all, of these taxes for the year 1895, have been paid not only to the State, but also to the various counties and municipalities upon the assessments incomplete, as we have seen, under the law, yet accepted by the roads as complete. It is impossible for us to know what would be the result of the action of the Assessors and exaininers upon new evidence of values gathered and acted upon as contemplated by the statute. Whether the result should be to raise or lower the basis of valuation already certified by the Comptroller, and accepted and acted upon by the railroads, it seems to us that it would produce much of difficulty and confusion. And we do not- think, from what we see in this record, that there will be compensating advantages to the public for the complications and difficulties that might arise from these
Believing, therefore, that public interests will not be subserved by granting a writ of mandamus at this late day, the judgment of the Circuit Court awarding it is reversed, and the petition is dismissed.