7 Kan. 210 | Kan. | 1871
The opinion of the court was delivered by
This action was commenced by the-plaintiff in error in the district court of Bourbon county,, to-set aside and enjoin the collection of a tax, amounting; in the aggregate to the sum of $13,648.37, levied by the officers of said county upon the railroad property of the plaintiffs in error, and upon an alleged illegal and unauthorized assessment and valuation of said property, attempted to be made in pursuance of ch. 124 of the laws-of 1869. The tax roll, including this tax, was at the time-of the filing of the petition in this case, in the hands of' the said C. A. Morris, as treasurer of said county, for collection, and he was about to place a warrant in the-
The questions presented for the adjudication of this ■court are — 1st, Is chapter 124, of the laws of 1869, (p. 244,) a valid and constitutional law, so far as it affects the matters involved in this case? 2d, Were the proceedings by which the property of the plaintiffs was valued, •and such valuation apportioned to the different counties •along the lines of their railroad, so irregular as to render the tax levied upon such valuation illegal and void ? 3d, ■Can this action be maintained for the purpose of adjudicating, either of said questions? is it the proper remedy •of the plaintiffs ? and are the plaintiffs entitled to the relief they .ask? Involved in these questions are many •others, which we will consider as we proceed.
The plaintiffs claims that this act is in contravention of
This the legislature have provided for. All taxable ^property, real and personal, within this State, must, ■under the statutes, be assessed at its true value in money, •and the takes levied upon said assessment must be at •an equal and uniform rate. The State taxes, under the statutes, are equal and uniform throughout the State, being levied on a uniform valuation, and fixed at a uniform rate on each dollar of the valuation throughout the State; each county tax is equal and uniform in the same manner throughout the county; and the same may be said of the taxes of each township, district, city and village; and this is all that is required by the constitution. (Hines v. Leavenworth, 3 Kas., 201.)
It is not only claimed that because other property is assessed by township assessors, that railroads should also be assessed by township assessors, but it is also claimed, that because a township assessor assesses property only which is situated within his own township, that therefore railroad property should be assessed separately in each township through which it runs, that long lines of railroads, for instance, extending through many townships and many counties, and from one end of the State to the other, should be so divided into pieces or sections, that each township assessor may assess just that portion of the road, which runs through his own township, without any regard to the value of the rest of the road, or without •taking the rest of the road into consideration. Probably •the legislature could provide for just such an assessment, but it would be very absurd in its practical operation. A -railroad is an entire thing, and should be assessed as a ■whole. It would be almost as easy and as reasonable to •divide a house or a locomotive into portions, and assess
The counsel for plaintiffs in error refers us to the case of the Exchange Bank of Columbus v. Hines, (3 Ohio Stat., 15,) but as the constitution of Ohio differs from ours in this respect, whatever may be the decision in that case, it has no application to this case. In Ohio, under their constitution, all taxation is to be by “ a uniform rule;” in this State, under our constitution, it is to be at a uniform rate. The difference is plain.
It is also claimed that said act is unconstitutional, because it provides “ for the assessment of property without the taxing districts, even to the assessment of property, both real and personal, lying in another State.” To some extent said act provides as is claimed; but the assessment of property out of the State or out of the taxing districts is not made for the purpose of taxing said property, but only for the purpose of ascertaining the value of the property within the State, and within the taxing districts. No taxes are ever levied under the act, except upon property within the State, and within the taxing district. As we have already stated, a railroad is an entire thing, and cannot well be valued or assessed except as a whole. Hence the provision of the act that provides for taking the entire value of the road, and dividing it up by a certain rule for each county, township, etc., through which the road runs, is, at least, a
The plaintiffs in error also claim, that the whole of said
Said ch. 124 is a part of the general revenue law of the State, and must be construed with other portions of the revenue law. It is entitled “An act amendatory and supplemental to ‘an act to provide for the assessment and collection of taxes,’ approved February 27th, 1868,” Section 113 of the said act entitled, “An act to provide for the assessment and collection of taxes,” (ch. 107, Gen. Stat., 1868,) reads as follows:
*226 “ Sec. 113. No irregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax deed; nor shall any failure of ány officer or officers to perform the duties assigned to him or them, upon the day specified, work an invalidation of any such proceedings, or of said deed.”
It will be conceded that the notice to the railroad company was irregular, but only irregular. It mentions two of the county clerks along the line of the railroad but not all of them. It was not necessary however that it should mention all or any of them, and that portion which does mention two of them may be stricken out as surplusage. But the notice itself is not a notice of a jurisdictional character. It is not required for the purpose of giving the county clerks the power to assess the property, but only for the purpose of enabling the owner of the property to be present and see that his property is assessed at a fair value. Even if no notice had been given, the assessment would not for that reason be void. Notice to the owner of the property is never, so far as we are aware, made a prerequisite to a valid assessment. It is true that if. any injustice should be done to the property-owner on account of no notice being given, then lie would be entitled to some remedy. But such is not this case. No injustice or even hardship has been shown in this ease. We also think that this notice, though irregular, is sufficient under said section 113.
We will now for the sake of this argument, and for - that only, consider that the said act, (ch. 124, Laws of 1869,) is unconstitutional and void, and that the said assessment was so totally at variance with the provisions •of said act, that if it has to depend for its validity upon that act alone, it is void, whether the act itself is void or not; and still we think the assessment, as made, is not void. Under the old law railroads were assessed by the ■ county clerks respectively of each county through which the road run — the county clerks acting separately, and not as a board, as under the present law, and the railroad companies were required to list their property for such assessment and for taxation. (Gen. Stat., p. 1030, § 29.) But if the railroad companies did not so list their property for assessment and taxation, and the same was omitted, then' the county clerk had the right, without such listing by the railroad company, to assess such property; (Gen. Stat., p. 266, §53; id., p. 1041, §65;) or, if the property was real estate, and the county clerk so chose, he could notify the proper assessor and let him assess it; (Gen. Stat., p. 1033, §38; or, if the same was personal property, the county commissioners also had the right to assess it. (Gen. Stat., p. 1041, § 65.) It seems from these statutes that it was not the intention of the legislature that any property, under any circumstances, should escape assessment and taxation. Even if a mer
Now while the laws of 1869 made some changes in the mode of assessing property at the first, or original assessment, for instance, providing that a board of county clerks, instead of the county clerks individually, should assess railroad property; (Gen. Stat., p. 1030, §29; Laws of 1869, ch. 124,) and providing that township trustees, instead of county assessors, should assess real estate, (Gen. Stat., p. 1032, § 31; Laws of 1869, p. 113, § 3,) yet no change has been made for the assessment of property that has been omitted to be regularly assessed; and hence it necessarily follows, that if the assessment by the board of county clerks was for any reason absolutely void, then, that each county clerk had the right to assess so much of the road as runs through his own county. Now the record in this case shows that Mr. C. Fitch, county clerk of Bourbon county, made the assessments of which the plaintiffs in error complain. It was upon his motion and at his figures that the whole road was assessed. It is true, that the manner of making' the assessment was irregular; but mere irregularities do not render assessments void in this State. (Gen. Stat., p. 1057, .§ 113.)
In the case at bar the tax is not absolutely void, and neither íb it free from all-irregularities. Can the plaintiffs then maintain this action to set aside said tax or to restrain its collection ? This depends, as we think, upon the question whether the tax is inequitable and unjust, or whether it would be against conscience and good morals to enforce its collection; for the order of injunction is an equitable remedy, which cannot be granted except in aid of equitable rights ; and a party who seeks equity must be prepared to do equity. No complaint is made in this case of the manner in which this tax is about to be cplleeted. If it can be collected at all, it seems to be admitted that the officers are proceeding in the proper manner. The complaint is, that the tax cannot be collected at all. The naked question then presented to us, is, whether it is equitable and right for the plaintiffs to pay said tax; or rather, whether it is equitable and right for them to pay any tax; for they have as yet made no offer, so far as is shown by the record in this case, to pay any tax, and do not even admit that they are in equity bound to pay any tax. They seem to desire to be freed
It is not sufficient to set aside this tax, or to grant the injunction prayed for, that other property in Bourbon county, or other railroad property in the State, has been assessed at a lower rate than the property of the plaintiffs. Perhaps the assessors of Bourbon county, or the assessors of other railroads, have not done their duty, and have assessed property too low; but that is not a sufficient reason for setting aside the whole of the taxes of the State, where a proper assessment has been made, as we must do if we set aside any portion of the same.
In conclusion we would say, that we do not think that any court of equity ought ever to interfere to set aside a tax that is merely voidable, or to restrain the collection of such tax by injunction, unless strong equitable grounds exist for such interference. Minturn v. Hays, 2 Cal., 590; Bank, &c., v. Hines, 3 Ohio St., 1; McCoy v. Chillicothe, 3 Ohio, 370; Brewer v. Springfield, 97 Mass., 152; Susquehanna,
No such equitable grounds are shown to exist in this ease, and therefore we think the court below did right in refusing to grant the temporary injunction asked for by the plaintiffs; and the orde? ... '.e court below must be affirmed.