197 N.W. 133 | N.D. | 1924
This is an action brought in the district court of Burleigh county for the purpose of enjoining the collection of certain taxes assessed against the plaintiff in 1919. From a judgment dismissing the action the plaintiff has appealed and demands a trial do novo in this court. The theory of the action may hest he understood, perhaps, by referring to the allegations in the complaint. The plaintiff is a public utility corporation operating a utility in the city of Bismarck. Its property was placed in class 1 by chapter 220 of the Session Laws for 1919 which provided for the valuation of this class at 100 per cent. It is alleged that for a long period prior to the passage of chapter 220, Session Laws of 1919, it had been the practice of the various officers charged with the assessment of property for taxation to assess at much less than the true and full value and that this practice continued after the adoption of chapter 220; that in the year 1919 property within class 1 of the statute was valued at from 20 to 75 per cent of the true and full value; that the city assessor of the city of Bismarck, in assessing the property of the plaintiff in 1919, appraised it according to the custom and practice at $160,870, which assessment was approved by the city board of equalization; that the county hoard of equalization increased the assessment 140 per cent, fixing the value of the property at $387,388. It is npon this valuation that the taxes sought to he restrained are levied. It is alleged that
The trial court found that the. plaintiff’s property was assessed in 1919 at a valuation which was larger in proportion to the true value than that of other similar public utility corporations in other cities and counties of the state; that the larger valuation was not the result of fraud or willful intent to discriminate against the plaintiff’s property ; that it would have been possible for the plaintiff to have paid its taxes under protest and to have; instituted an action at law for the recovery of the excess above its lawful and equitable assessment; that it. was still possible for the plaintiff so to do; that as the plaintiff had a plain, speedy and adequate remedy at law, the court had no power to grant relief through the equitable'remedy of injunction.
Chapter 220 of the Laws of 1919 places the following property in class 1: railroads ancl other public utilities, land (exclusive of structures and improvements), bank stock, flour mills, elevators, warehouses and storehouses, buildings and improvements on railway rights of way and structures and improvements on town and city lots used for business purposes. There is in the record considerable evidence relating to the assessment of structures and improvements in the city of Bismarck, also to public utilities in a number of cities of the state, including Bismarck, which tends to show that such properties were assessed in the year 1919 at a percentage of value much below that applied to the property of the plaintiff corporation. There is, however, other evidence, practically undisputed, to the effect that railroad property was assessed at 100 per cent of its value, and it is shown that the assessing nt upon railroad property in the city of Bismarck exceeds in the aggregate the assessment upon the plaintiff’s property. Similarly, it is shown that bank stock in the city of 'Bismarck was assessed at 100 per cent and this likewise aggregates a large assessment. The record docs not show affirmatively that other property within this class, such as flour mills, elevators, warehouses, and land exclusive of structures and improvements, was not assessed as the law requires.
To state the condition of the record more in detail: The only evidence tending to support the allegations of the complaint with reference to the continuation, after the passage of the Classification Act,
Tho witness Bortsch, a member of the city commission, testified that before' the. assessment was made in 1919, the city commission had sent the assessor to three other cities in the state to ascertain what valuation they were putting on property in those cities; that they desired to change to the new basis as nearly as possible; that after learning what was contemplated in the other cities, he (the assessor) returned to Bismarck and assessed property at from 50 to GO per cent of its value; that when the assessment was returned to the city commission, sitting as a hoard of equalization, they did not attempt to increase' the valuation to the full value of the property but merely to equalize assessments; that the assessment of the plaintiff at a little over $160,000 represented a fair equalization with other property in the city.
The witness Lucas, chairman of the hoard of city commissioners, testified that the assessment of $160,870 against the plaintiff company was, in his judgment, a fairly equalized assessment compared to other property in the city; that the board took the assessor’s figures for the valuation of 1919 ; they compared them with the assessment for 1918 ; the figures for 1918 seemed to he about one third and for 1919 about two thirds more which gave the approximate value; that the assessor was to make the adjustment according to the full value and his figures for 1919 generally ran about three times his figures for 1918.
The aggregate valuation of city lots without improvements in the city of Bismarck .... $3,001,862
The total assessment upon business structures in the city........................... 1,039,229
Bank stock ............................ 451,638
Railroad property ...................... 421,537
$4,914,266
Local Utilities:
Hughes Electric Company ............... 387,388
Bismarck Water Supply Company......... 219,677
Bismarck Gas Company ................. 81,000
688,065
Total $5,602,331
Other items not appearing in the record bring the total assessed valuation of class 1 property in the city of Bismarck to $5,934,813, while the total assessed valuation of all property in the city was $7,664,222. (In Burleigh county the assessed valuation was $34,332,-298, and in the state, approximately $1,323,000,000.) It thus appears that the plaintiff’s assessment in the city of Bismarck represents 5 per cent of the total assessed valuation and 6.51 per cent of the assessed valuation of property in class 1. The record is almost, if not wholly, silent as to the assessment of property in classes other than class 1, which makes up 32.67 per cent of the assessed valuation of the city. As to the class 1 property, the evidence for the plaintiff, aside from that previously adverted to and which relates to the alleged general policy of assessing property in this class at a fraction of its value, is confined, so far as the city is concerned, to fourteen buildings used for business purposes and to two other public utilities, the Bismarck Water Supply Company and the Bismarck Gas Company. The aggregate assessed value of the properties to which this evidence relates is $1,067,272.
To state the matter another way, there is evidence relating to the
We are of the opinion that, in view of the presumptions that must obtain with respect to the performance of official duty, the record in this case will not support a finding that there was a general departure fiom legal requirements in making the assessment. In fact, the positive testimony rather supports the presumption. In this state of the record it cannot be said that the plaintiff has been injured by having •■its property singled out and assessed at a higher rate than other property generally, or even at a higher rate than other property within the same legislative class. The most it shows is that the plaintiff’s property was assessed at a higher rate of valuation than certain other public utility properties located in Bismarck and elsewhere and higher than certain structures and improvements in the city. As there is a much greater volume of property -within the same class as plaintiff’s property and within the city of Bismarck that is, so far as the testimony shows, assessed at 100 per cent of its value than is shown to have been assessed at any lower or illegal rate, there, is no basis for a finding of discrimination such as vdll support equitable interference. Taking the view of the law most favorable to.the plaintiff’s case, we are of the opinion that the record does not show discrimination, against it as compared with other property owners generally sufficient to warrant equitable interference. While, for the purposes of
The situation in this case is in many respects parallel with that presented in the case of Washington Water Power Co. v. Shoshone County (C. C. A. 9th) 270 Fed. 377. In that case the plaintiff sought relief against an assessment of its property at approximately 75 per cent, of its value and the circuit court, which had given it relief from such an assessment in another county (Washington Water Power Co. v. Kootenai County (C. C. A. 9th) 270 Fed. 369), denied similar relief in Shoshone County, using the following language (270 Fed. 379) :
“When it comes to applying the controlling rules of uniformity and (’(quality, the proper authorities often meet with difficulties which call for the exercise of painstaking judgment and discretion. In the present, case we have an illustration of such complexities. In Shoshone county much personal property appears to have been assessed on a basis of full value; it is certain that at least mining improvements, mills and machinery, were so valued, while stocks of merchandise were assessed at invoice prices or less, and lands were valued at figures varying from 50 to higher percentages of value. Of the total valuation of $31,828,-640, property valued at $23,677,S0G appears to have been assessed on a basis of approximately 75 per cent, valuation. Of the remainder, $8.150,834 in value, it may be there was some undervaluation by the («unity assessor; but without satisfactory proof the court cannot say what, if any, real error prevailed, and cannot safelv undertake the
“We gather that the undervaluation of classes of property -which prevailed, as referred to in Washington Water Power Co. v. Kootenai County (C. C. A. 9th) 270 Fed. d(19, was by no means extensive in Shoshone county, and that as a result appellant has. not made a case for relief as against the assessment of its property in the county.”
It will be seen that the facts are quite similar to the facts in the case at bar and we think the reasoning of the opinion is applicable here. The plaintiff is not entitled to injunctive relief merely on the ground that, as between it and certain other public utilities, or as between it and certain other property, there was inequality in the assessment. One seeking relief on the ground of discrimination in assessing property for taxation, particularly where his own property has not been assessed substantially higher than the law requires, must show that a greater injustice will result from denying relief than from granting it. In our opinion, the plaintiff has not succeeded in making such a showing in this case. ' Since, in our view of the case the injunction prayed for was properly denied, and since the parties have submitted no other issue for determination, the judgment appealed from will be affirmed without prejudice to any other remedy the plaintiff may have in the premises.
