*1 45,195 No. a Corporation; Corporation,
Mobil Oil Northern Natural Gas Producing Company, a Corporation; Pan American Petroleum Refining a Corporation; Corporation, Company, Ashland Oil & a a Corporation; Corporation; Company, Sinclair Oil Gas a and Columbian Corporation; Company, Cities Service Oil Shirley Plaintiffs, a v. Corporation, Corporation, Fuel Mc individually County, and as Clerk of Grant Kan Henry, sas; and Wilma and as Treasurer of individually Arnold, Kansas, Grant County, Defendants. 45,196
No. a and Sin Corporation; Corporation, Pan American Petroleum Mary Plaintiff, Corporation, Company, clair Oil and Gas County, and as Stanton individually County Clerk of Dimmit, Phyllis Kansas; and as Treas individually Kistler, Kansas, urer of Stanton County, Defendants. 45,199 No. Corporation; Corporation, Northern Natural Gas
Mobil Oil Producing Company, Corporation; Cities Service Oil Com a Cor and Columbian a Corporation; Corporation, Fuel pany, Dorothy and as individually Plaintiffs, Hartley, poration, Kansas; and Lois in County, Morton County Clerk Hall, Kansas, Treasurer of Morton and as dividually Defendants.
(436 982) P. 2d *4 Opinion January filed 1968. Jones, Ralph Hope, E. Wichita, argued H. Donald L. Cordes and M. all of cause, Richards, City, Aler, Oklahoma, and Robert W. R. of Oklahoma C. J. Dallas, Texas, Jones, Wichita, Gray- Robert O’Connor and Richard both of J. Bartlesville, Luthey, Oklahoma, Rice, Topeka, don D. and Ernest were J. plaintiffs. with them on for the the brief Fiss, County Attorney Kramer, Hugoton, of Stanton L. A. E. LaVerne County, argued Attorney County, Duckworth, County of Morton and Keaton C. County, Tickler, Attorney cause, County of Grant and Richard M. with them the brief for the defendants.
The was delivered opinion filed in mandamus This is original proceeding Schroeder, J.: Kansas, County, owners of certain leaseholds in Grant gas County Grant
against Treasurer of County County Clerk defend- compel performance duty imposed upon legal ants matters to ad taxes. relating valorem order of an validity substantive is the question presented entered the district which reduced County court of Grant assessed Grant other valuation of all situated in than the owned by the plaintiffs. Counties,
Similar had and Stanton proceedings were in Morton Kansas, and the owners of certain of these coun- leaseholds each ties likewise filed an action in in this court seek- original mandamus ing relief upon the identical issue presented case. These three this actions have been consolidated order of court, confusion, but to avoid the issues to the only pertaining Grant County case will be discussed. Our orders (previously and the entered) opinion herein will control the disposition three cases. October, 1967,
On the 16th Mobil Oil day Corporation, Northern Natural Gas Producing Pan American Petroleum Company, Ashland Oil and Gas Corporation, Refining Company, Sinclair Oil and Gas Company, Cities Service Oil Company Columbian Fuel hereafter referred to as Corporation, filed plaintiffs, for a order of peremptory mandamus Court Supreme against and as Shirley McHenry, individually County Clerk of Grant Kansas, Arnold, and Wilma County, and as individually County, Treasurer of Grant Kansas. The plaintiffs their petition interests and with allege they special rights respect have to the sub- matter of this action which are ject peculiar them and distinct Kansas, from all other citizens in Grant taxpayers Kansas; they in the State are owners respective interests leaseholds situated in Grant in certain subject and taxation for ad tax assessment valorem purposes. made allege they due and 1967 ad timely valorem to the Assessor of Grant County, covering
tax renditions *5 in that as were situated such of their leaseholds respective gas assessment county, gas production as a basis therefor the state using Director of Property schedule and by developed promulgated Kansas, K. S. A. 74-2441 and Valuation of pursuant the State of 79-306b, K. S. A. 1965 leaseholds valuing gas for use Supp. of tax The petition State Kansas for 1967 ad valorem purposes. then alleges: doing County independent appraisal “4. Grant contracted firm with style appraise, business inter under the name and of Prichard and Abbott to alia, gas properties county, appraisal Prichard and located in that completed Abbott undertook and in due course. County ad "Grant thereafter determined the assessed valuation for 1967 by purposes gas tax reference to the valorem of leaseholds located therein (Prichard appraisal Prichard and and formula derived therefrom Abbott formula), and Abbott and to the aforesaid state schedule. without reference County County rejected plaintiffs’ of Returns cover- “5. The Assessor Grant ing respective gas of the their as filed and rendered on the basis leaseholds schedule, properties and on the basis of the Prichard and state reassessed these formula, substantially in- Abbott with the result that said valuations were creased. proper complaint Thereafter, plaintiffs due and as to the “6. each of made leaseholds, respective gas of or all of their to the Board assessed valuation some County, sitting Commissioners of Grant as the Board Equalization county. hearing, Board of that After affirmed the valuations by respective gas plaintiffs’ as determined and reassessed leaseholds rejected the valuations and of that as determined Assessor reported by plaintiffs. perfected Thereafter, duly properly respective ap- plaintiffs their “7. Equalization peals Board of State actions of the Grant from the Equalization. sitting pro- Appeals Board of as the State In this of Tax Board County Commissioners, County appeared ceeding, three of its herein, Shirley McHenry. respective ap- County Clerk, defendant
its hearing, peals plaintiffs for heard were consolidated were the State August 8, Equalization July 1967.” 10-12 Board of that after the Roard of alleged then State Equaliza- The petition counties, of the and of the in- all the evidence tion heard it made some conclusions and preliminary cluding Grant as follows: findings arguments counsel, the briefs sub- After careful consideration “1. therein, Board that mitted, it is the conclusion cited and the authorities properties prepared valuation, gas producing or schedule the method Department Property Valuation the Director and distributed mandatory advisory Kansas, it is not nature. Therefore is of the State adopted Assessors. or utilized the various said schedule be valuation, comparison of the methods consideration “2. After careful Board, consideration of the presented after careful to this or schedules *6 therewith, conjunction in the finds the method
evidence submitted Board that valuation, prepared by Property Department of the schedule Valuation Kansas, justifiable provides of the measure of State the best value for gas producing properties.” is (It admitted that Prichard and is an firm Abbott appraisal from the State of Texas.)
The petition then in 14th alleged day substance that on the August, the State Boaid of the method Equalization applied valuation, or schedule as and distributed the Prop- prepared Kansas, erty Department Valuation State of in the appeals the it, substance, in finding, before and entered order pending its the “not assessed plaintiffs’ gas properties uniformly had been other in to equally equalize with in Grant order property therein, the same other the should be with values property thereof added.) schedule.” adjusted (Emphasis as indicated on attached It “that the valuation said property therefore ordered equalized ‘A,’ be, and attached Schedule hereby it is as set out fixed to and that directed county hereby said County Officials of with provisions correct books their and records in accordance order.” (Emphasis added.) this The schedule attached to the with petition respect appeal of Mobil is of the Corporation alleged representative Oil appeals orders in each of the of the with respective filed plaintiffs It had the Board of Tax discloses Mobil Oil Appeals. Corporation leases, and shown for assessed valuation forty-eight separate the State nine had the assessed valuation increased these leases Board of sitting Equalization, Tax State Appeals Board of The total re- had assessed valuation reduced. thirty-nine $622,265, the total in valuation of Mobil’s leases was duction $40,570. The leases was of Mobil’s increase assessed valuation Corporation owned Mobil Oil that each lease schedule discloses in the as- adjustment made considered and the individually per- wide over rather lease lease valuation varied sessed from range. centile State Board of Equalization the order of the allege
The plaintiffs plaintiffs for the valuations property fixed and determined (This allegation value. justifiable thirty percent were equal respondents’ answer.) is not admitted and tax- thereafter individual residents petition alleges an action district court commenced of Grant payers seeking that county Clerk of against of Grant reassessed, to have their on the basis of rate allegedly determined State Board in the aforesaid Appeals of Tax appeals petition herein. A filed copy individual herein s suit is made taxpayer part reads: against plaintiff “Comes now the Frank for his cause of action R. Collins and alleges: the defendant question “1. common That the this action is one of be determined in many persons plaintiff interest to in this action and the said therefore sues persons. for and on behalf of all such plaintiff County, Kansas, “2. That the is a resident and of Grant land, and is including city property, owner of estate real farm mineral interests, royalty interests, together personal property real and with other subject said and state. That all of is said to taxation for the year 1967 and plaintiff individually representative is interested *7 persons property County, such class and classes who are owners in Grant of of Kansas in the matter reduction set taxes as of of hereinafter forth. defendant, Shirley McHenry, County County “3. That the is Clerk and County, Kansas, elected, qualified duly acting Assessor for Grant in such capacity, year’s preparing and as roll such officer is tax for the the current charged duty taxes which the taxes are based. she is with the That responsibility preparation covering of of the of tax rolls all classes the property County, year in Grant Kansas for the 1967. “4. using working That is the values said interests defendant of for gas interests, leaseholds at royalty a rate than that used assess the different minerals, personal property plaintiff others, and real and this and that of plaintiff such against assessment in results others discrimination similarly situated and violates Section Constitu- 1 Article the Kansas of of tion and is property void as to that assessment on all rate therefore of applied working excess the rale on said interests. of taxpayers “5. That this situation was appeals brought by by about certain justifiable by from proper taxing value fixed and authorities determined County, of Grant Kansas, Appeals Kansas to the Board Tax the State of of of justifiable resulted in a reduction such value in the instances of of appeals respec- approximately 27%. The exact reduction is set forth in the of by tive Appeals part orders of of the Board Tax is made a this hereof
reference. “6. by That the leaseholds have been reduced the said Board from their original values, assessed and that void rate assessment is 27% as- of of property working sessed values on all other than the interests the said lease- by by holds that have been said reduced amount the said Board. prays enjoining “Wherefore, Plaintiff for an order the defendant from assessing plaintiff similarly and all others situated excess applied gas of the rate to the lowest working assessed leasehold interests.” (Emphasis added.) by County action taxpayer The answer filed in the private defendant, the petition made a Clerk of that as county, part It herein. reads: defendant, Shirley McHenry, to the and for her answer “Comes now the petition, petition paragraphs 1, said and in filed herein admits the truth placed being on answering, and further that the values the defendant states by professional appraisal hired firm tax rolls are those a determined appraisal approved purposes the Grant Grant for said Equalization except such values ordered Board of the reduction of for $8,010,- Appeals being in the amount the State Board Kansas Tax $29,847,689.00; that appealed
271.00 assessment which was total of spreading said Board is record as ordered the assessment defendant Appeals Appeals, Tax said Board Tax and that said reduction ordered this defendant approximately 27%; net at resulted in a reduction a rate of compelled by spread herein of record. law as set forth values prays petition be dismissed.” filed herein the defendant “Wherefore, (Emphasis added.) County, of Grant County Attorney The answer was signed by Kansas, attorney as for the defendant. in such private alleged further petition County, Attorney of and the therein Clerk, a stipula- entered into for the defendant
appearing It herein. reads: tion, part which is made attorney Pickier, Collins, plaintiff, and Richard M. now Frank R. “Come stipulates herein, as follows: defendant determining County, Kansas, Clerk of Grant “1. That County, Kansas, the same bases used in Grant assessed values of properties appealed determining to the Board of of those assessed values properties Appeals applied Kansas. as to all other within Grant Tax taxpayers represents locally plaintiff class all assessed “2. That *8 by the except in assessed valuation as shown who obtained reduction those Appeals Board Tax which are orders issued the Kansas attached orders of part hereby hereof, made a and that said orders show re- and reference (Emphasis added.) valuation 27%>.” in assessed duction of further that in such petition alleges private taxpayer which orally therein moved for summary judgment A the order is attached made granted. the trial court of and copy herein. It reads: part hearing day September, for the oral “Now on 7th of comes on this summary judgment motion for made herein. court, having pleadings “The considered the and submitted and evidence argument counsel, granted. of finds that said motion should be ORDERED, Adjudged “It Is Therefore and Decreed Considered, County, County hereby enjoined Kansas Clerk Grant be and she is of from County property spreading values on all said assessed on assessment rolls of appealed applied which were io rate assessed valuations excess to the of seventy-three being percent Appeals, Tax rate the State Board said of year assessed values as determined herein 1967.” defendant added.) (Emphasis The petition herein and the alleges, exhibits attached thereto confirm, answer, that in such taxpayer action the private petition, stipulation and order of the court were all district filed with clerk of the district court Grant at 2:00 m. County on p. Sep- tember 1967. No summons issued nor returned in that case. The petition herein alleged: then Shirley McHenry, County, “16. Defendant as the Clerk of Grant spread has or is to about on the assessment rolls of Grant assessed personal valuations property therein, on all taxable real and located other gas than respectively by plaintiffs herein, leaseholds owned at a rate not excess of property 73% of assessed de- values of as determined said year 1967, compute fendant for the and has or is about be the sums to County,
levied on personal all taxable real and in Grant located applicable extended, other plaintiffs, than those the basis of tax rolls so and computed upon rolls, to set down taxes said tax and has or about certify computations and deliver said and tax to tax rolls defendant Wilma Arnold, County County. as Treasurer of Grant private taxpayer “18. The aforesaid suit in the District Court of Grant County, accomplished and as the imminent or acts of the defendants herein County, acting respectively, Clerk and Treasurer Grant pursuant have, taxpayer suit, Order in said made entered rights damage special peculiar are and will continue to interests or to these respective plaintiffs taxpayers and distinct those of all citizens and from other Kansas, County, following respects: in Grant and in the State (1) plaintiffs’ respective gas percentage valuation which assessed county, (2) the total said leaseholds in Grant bear to valuation in county, plaintiffs’ respective gas (3) tax levies leaseholds in said computed owing plain- amount of tax has been or as due and will substantially respective gas been, tiff’s leaseholds all have are and will be unequal substantially raised and with other rendered nonuniform located in said and in the State Kansas. private taxpayer action in “19. the District Court aforesaid County, accomplished herein, acts of imminent defendants and the special damage resulting plaintiffs therefrom, fully alleged all as more hereinabove, wrongful, unjust illegal respects set forth plain- as these taxpayers County, as distinct all other citizens in Grant and in tiffs from Kansas, respects: following the State deprived equal “1. have been Plaintiffs uniform and taxation and assess- properties Kansas, ment of their located in Grant and in the State of required by Kansas, Article Sec. 1 of the Constitution of the State of by the laws of the State of Kansas. *9 equal deprived of assess- of uniform and rate “2. Plaintiffs have been Equalization proper by ment and taxation as Board of determined State proceedings it, thereby deprived of before been valuable and have rights peculiar contrary processes themselves, unto to due of law. without and County properties arbi- plaintiffs “3. The have 'been of located in Grant trarily, capriciously, discriminatively other singled of out from and unfair, taxpayers unlaw- located in and in of Kansas for said counties the State unequal ful unjust and and and assessment treatment and for nonuniform taxation. proximate plaintiffs damage resulting and “4. aforesaid to is the direct part willful, design defendants result of a on the of malicious fraudulent and complained wrongs of. produce results, injustices and others to herein and proceedings the District “20. Plaintiffs have no for relief in commenced that, light of the facts as known Corut of Grant for the reason forth, fully any futile and as action would be herein set useless. adequate remedy complete at and will suffer Plaintiffs have law “21. no irreparable injury alterna- damage does not issue an this Court if Honorable (Emphasis added.) tive writ of mandamus.” herein, this of
Upon plaintiffs’ petition consideration October, 1967, issued jurisdiction took the 13th of day show cause, summons and order the defendants directing to show October, 1967, why a peremptory cause on or before the 23rd of day the plaintiffs’ order of mandamus not issue as prayed should according to answer the defendants petition, also directing law. October, 1967,
On the 23rd the defendants day separate filed a cause, day answer to the order to show and thereafter on 30th October, filed their answer. Aside from attacking jurisdiction and this court to hear the matter of man- propriety damus, order, issuance of particularly peremptory in their answer show cause defendants state separate herein is one which: attempts impose . . a burden of Grant “. Clerk Kansas, validity County, Shirley McHenry, respondent judging herein order, competent any lawfully jurisdiction, issued District Court which, certainly prerogative her to do. within respondent, Cause,’ further to the ‘Order “8. For answer to Show qualified McHenry, duly elected, Shirley authorized and Clerk Kansas, respectfully preparing the states to the court that she is Grant computing on the values tax rolls and the taxes assessed ordered Equalization the same Board as be modified certain orders Equalization sitting Appeals a Board of State Board Tax Court, Kansas, required District all as the Grant of her state this state. the laws of *10 respondent, Cause’ the “9. 'Order to Show For further answer the County qualified Arnold, duly elected, Treasurer in Wilma authorized and the County Grant, Kansas, respectfully and for states to this Honor- the State of by computed able Court that and taxes as she will use the assessed values required County Clerk, Shirley McHenry, the Grant and to collect the same as by (Emphasis added.) the laws of this state.” The defendants’ answer admitted the material of fact allegations related, the petition as heretofore but denied specifically conclusions drawn from facts by plaintiffs alleged. the the taken the particular, by the defendants admit the proceedings as a plaintiffs sitting herein before the State Board of Tax Appeals indicated; State Board of the heretofore with results Equalization, court of admit action in the district they the private taxpayer Grant attached to plain- in accordance the exhibits County with tiffs’ such exhibits. by and the results indicated answers, October,
In addition to the 26th foregoing day on the Sullivan, an answer and was Dan intervening petition by filed individuals, W. Alford as and the Kansas Southwest Jr. John Association, a Royalty Owners and the mem- nonprofit corporation, Kansas, bers of said resident in Grant inter- County, association as attacking veners. Aside from jurisdiction propriety mandamus, this court to hear this answer original proceeding merits of argue controversy interveners undertakes to which will be later in the discussed opinion.
On Grant County this state of the record the case (consolidated with set for oral County cases) argu- the Morton and Stanton was October, 1967, ment on 30th day before the Court Supreme argu- when it heard. After the briefs and oral considering ments of court found the peremptory respective parties, order and on the granted, should be requested by October, 1967, 31st order of mandamus issued a day peremptory which in as follows: pertinent reads part Shirley McHenry, individually “It is ordered that the defendant and as County County, Kansas, Clerk of Grant shall assess for 1967 ad valorem tax purposes personal County all taxable real and located in at by year may values determined said defendant for the as said values adjusted equalized by County Equalization have been Board of or the Appeals sitting Equalization, State Board of Tax as the State Board of and not County, Kansas, at the values ordered the District Court of Grant and not any rate, spread at other and to such assessments on the tax rolls of Grant County, compute and to the sums to on all be levied such taxable real and personal property assessments, located in that on the basis of such computed county, to set the taxes as thus on the tax rolls of that and to cer- completed and with the tify and extended as and deliver tax rolls thus Arnold, provided law. computed all as taxes as thus to the defendant Wilma Arnold, individually and “It the defendant Wilma is further ordered Kansas, County, ad valorem shall collect 1967 as Treasurer of Grant personal in Grant located taxes on all taxable real Clerk of Grant basis of the assessments as determined equalized by adjusted year as the same have been Appeals sitting Equalization or State Board of Tax as the Board of aforesaid, Equalization, Board of and not on the basis of assessments State of Grant Kansas. ordered the District Court obligations imposed is issued now in view of the and duties “This order opinion S. A. 79-1803 and 79-1804. A the defendants K. formal will prepared.” when filed *11 names of identical orders parties for the the were Except issued in Morton and Stanton cases. County the the
The substance of plaintiffs’ petition herein is to make a attack the validity collateral judgment of the district action, of Grant in the County private taxpayer court wherein the court reduced the valuation all district assessed taxable property in Grant that owned the County except by plaintiffs. in oral counsel for argument by
We were informed the respond- interveners, herein, and counsel for the all ents the value of in Grant owned is gas by County approxi- leaseholds of all in Grant property one-half the value taxable mately County. essence, the order of the district court of Grant affected County all subject ad to be imposed upon property valorem taxes true of similar orders made tax in Grant and the same is in the district court Morton by under similar circumstances Thus, in original court in this proceeding Stanton Counties. ad a matter that affects the valorem mandamus is confronted with in three to tax subject taxes to be imposed upon property known commonly the area comprise counties of the state which Kansas. as the field in Hugoton gas the district think the order reasons we why
After stating absolutely action is taxpayer County of Grant this original pro- entertaining void, our reasons we shall give in mandamus. ceeding legis- schedule established tax time procedure Annotated requires the Kansas Statutes 79 of Chapter
lature and to the end that speedily taxation to be done work of on. be carried government business of or Assessor the County January as of Annually, and assessment listing as Assessor shall acting supervise Clerk county subject of all real and personal property estate S. A. 1965 taxation, Supp. property. (K. state-assessed except Second, 79-1412a, and 79-301.) list required property
Between 1 and March persons January all tangible personal property a statement sign listing shall make list, and to deliver such statement which he is required where such assessment to Assessor 79-306 Supp. S. A. 1965 (K. has its situs for taxation purposes. wells, or gas producing and oil gas Oil and leases 79-1422.) are to be quantities, gas paying oil capable producing A. 79-329.) S. (K. assessed and taxed as personal property. leases, Persons, gas oil owning or associations corporations file their assessment or must gas, for oil engaged operating 79-332 Supp. S. A. 1965 March 20. (K. statement on or before April 1967].) as of L. Ch. effective [amended statements, the Assessor of the assessment Upon receipt at thirty percent shall assess the so listed tangible personal property value, to determine such of its Assessor justifiable schedules, any, use if furnished valuation of valuation However, change where the Director of Valuation. Property he imme- listed shall made Assessor who filed or before diately, May notify Where the 79-306b.) S. A. 1965 (K. Supp. statement. original *12 increased, is property items of personal assessment of individual thereby, to be affected notify person shall so County Clerk thereon had. hearing may a and shall fix the time and when place and 79-1606.) S. A. 79-1602 (K. 1 and 15 the Board of May County Between Commissioners June Board of shall hear and Equalization as deter-
sitting as to by any taxpayer mine made the assessment any complaint of situated in the any of his After property county. valuation than final later the Board adjournment, such of June shall not the assessed change Commissioners valuation of of or reduce amount any person aggregate of property of taxable of the property county. the assessed valuation and 79-1606.) S. A. 79-1602 (K. Board, after the of the adjournment
At time any Director of Valuation Board to Property require reconvene of such orders as the Director Valuation Property shall make shall that all property the end to necessary, just determine are to the same extent manner in the same be valued and assessed to be required real or personal, property, as and all other any 79-1404, Sixteenth.) A. listed for taxation. S. (K. to the to complain
An owner of who desires property of of his any properly- Board of to assessment Equalization as assessment, file his written of must made 1 of the prior May year 5 of the May year with the on or before complaint County Clerk in which the assessment was made. S. A. (K. 79-1606.) Board of order of the aggrieved by any
And any person of Tax sitting to the State Board Equalization Appeals may appeal of by filing as the State Board of written notice Equalization after the date of the order from which appeal days within fifteen was taken for determination of such appeal grievance. A.S. 79-1409 and (K. 79-1609.)
K. S. A. 79-1409 provides: appeals equalization, “The state board tax shall constitute a state board of of equalize property throughout and shall the valuation and assessment of state; power equalize property and shall have the assessment all in this persons, corporations district, state between or the same assessment firms townships county, between cities and of the same and between the different state, property property counties of the and the assessed the director of any person feeling aggrieved by valuation in the first instance. And county equalization may, (15) days board of within fifteen board, appeal equalization after the decision of said to the state board of grievance. for a determination of such duty “It equalization shall be the of the state board of inmeet its office Wednesday on the year perform second of each the work June equalization provided. as hereinbefore any taxing Whenever the valuation of district, county, township, city, district, otherwise, whether it be a school changed by equalization, taxing state board such district officers of authority levy required who have taxes are to use the valuation so fixed making purposes. the state hoard as a basis their levies In case for change valuation, appeals certify is made in such said board tax shall equalized certify values to the director valuation who shall forthwith county the same to the clerks the several counties the state or to equalization; the counties and the said clerks shall affected carry tangible personal property the real estate and on the tax rolls their respective certified, counties at the valuations so and shall use such valuations as the basis all tax levies. apportion “The valuation director shall the amount of tax for required purposes among state law to be raised in the state the several *13 therein, proportion property counties to the valuation of the taxable therein (Emphasis equalization.” board equalized by state year for the
added.) set forth is specifically Clerk County legal duty The It provides: K. S. A. 79-1803. equalization board action the state “As soon as the certified required levies change After all county as directed. the valuations clerk he shall certified, he shall county so by have been clerk shall to be certified to the law property, upon or lot of real compute tract to be levied each the sums personal known, upon owner, the amount of if name of the equally corporation, person, company shall be levied name of each tax, property subject and set down personal to the same all real and same, complete attach his certificate taxes on the tax roll. He shall day thereto, county on or it to the treasurer deliver before first respective November, charge with the amount and shall the treasurer day every day of November on the tax For after the first taxes assessed roll. possession county board roll clerk shall retain such tax in his that the (Emphasis added.) pay ($5.00).” from his five dollars shall deduct first meet on the The Commissioners are required estimate and determine in each Monday August year, all county purposes, amount of to be raised tax for money by A.S. levy. law to by (K. all other taxes which shall be they required 79-1802.) each year. the 1st of November day
All taxes are due 79-1804.) S. A. (K. con- herein are primarily in mandamus original
The proceedings 79-1803, 79-1409, above supra, quoted. supra, cerned with foregoing interference with contend to plaintiffs permit in the manner legislature directed procedure and schedule tax- private of Grant ordered the district court the tax procedure. chaos into suit would be to introduce payer’s is well taken. point related, evident it is From the state of the record as heretofore Board first to the grievances, took their alleged plaintiffs These the State Board of Tax Appeals. and then to Equalization, law to administrative agencies provided official boards ad assessments of relating controversies determine these were denied relief tax While purposes. valorem their efforts were successful in Board of Equalization, Tax the to the State Board of Appeals, their appeal in the district court of Grant brought the effect of the determination made nullify designed Tax Appeals. Board of
227 assessment It an date that matters early has from been held In judicial. and and not taxation are administrative in character 628, 591, said: Pac. it was Symns v. 65 Kan. 70 Graves (1902), their administrative in “. . and taxation are . Matters of assessment by judges judicial, are not elected character and who and interference are purpose discharge those officers who for that of their duties with the authority is unwarranted invested and estimate value with the sole make judgment for that its the law. The district court could not substitute impose on equalization, notion of value board of its and this court cannot principles and cannot either. of taxation These fundamental in the law are (p. . .” exigencies any particular . be waived case. aside to meet the 636.) bemay In there upon same decision the only grounds judicial follows: interference as recognized were capricious fraud, arbitrary as corruption oppressive, or “But and conduct so power act, fraud, any to amount to and courts have will vitiate official departure however, against every case, consequential injuries. relieve In duty seeking well- party from fall must redress to within be shown (p. 636.) equity. powers defined limits of of a court of . . .” Finney Other rules adhering foregoing decisions Bullard, 129; v. Ellsworth Salt Co. v. 77 Kan. 94 Pac. Kan. 640; Myers,
82 Kan.
& L.
107 Pac.
Eureka B.
Ass’n
Comm'rs, 149
68;
78 P. 2d
and Hanzlick v. Republic
2d 1111.
P.
the same
Hanzlick,
The
substantially
relief
was
sought
supra,
in Grant
suit
as that
and ordered in the
sought
a manda-
County.
There
action for a declaratory
estate
real
tory injunction to
a revaluation of certain
require
court
The lower
of taxation was attacked
demurrer.
purposes
appeal.
sustained a
and the
affirmed
Supreme
demurrer
Court
The
was as follows:
prayer
petition
“ ‘Wherefore,
plaintiffs pray
the actual values
court determine
these
money
estate,
require
place
same
of such real
these defendants to
defendants,
Kansas,
enjoin
Republic county,
tax
these
rolls of
assessing
collecting any
upon the valuation
and each of
from
taxes
them
grant
assessing
boards;
fixed
said
officers and
and that the
as now
circumstances;
equitable
just
other and further relief as is
(p. 669.)
their costs.’”
that these
recover
the court said:
opinion
prayer
that the
“An
of this
will demonstrate
examination
good
Finney County Bullard, supra,
is as
now
reason for
the decision
every
mean that
time
landowner
was then. To hold otherwise would
could
assessed he
amount at which his real estate was
dissatisfied with the
equalization had
allege
and board of
assessor
commence an action and
such a condition
estate. Under
value of his real
not considered the actual
taxing
be able
bodies never would
be finished
assessments never would
to the con
arrange
of a decision favorable
The result
their financial affairs.
assessing
in this
officers
plaintiff
undo the work
be to
tention
would
purposes
property for
county.
fix a value
courts can in no event
determine whether
only
such case is to
of a court
of taxation. The
function
Co.
Pac. Rld.
(See
Union
unreasonably
arbitrarily
made.
the valuation was
assessing property
Comm.,
v. State Tax
2d
work
68 P.
long in doubt.
speedily
must not be
and the result
for taxation must
done
*15
Republic
property
granted,
prayer
then all the
been
the
of this
Had
The matter
be the result.
Chaos would
would have to be reassessed.
government
on.
be carried
of
should
the business
of first consideration is that
history
early
gave
in the
rule announced
rise to the
All these considerations
fraud,
amounting
fraud,
the
or conduct
of our state that
in the absence
statutory
the tax value
by
and boards as to
conclusion reached
the
officers
672.)
(p.
by
courts.”
disturbed
the
real estate will not be
the
Kansas
Chapter
the language
An examination of
1412a,
1409,
Fifth,
Annotated,
sections
and particularly
Statutes
the
are
1803,
imposed upon
the
which
and
that
duties
supra, shows
taxing
of the
stage
at this
and
Treasurer
County
Clerk
the
County
discretionary.
sense
clear,
ministerial and
no
are
process
purely
Cleric,
after
County
that the
requires
the
Essentially
process
him, either
be certified to
law to
valuations and levies required
the
not
or
appealed
as to
amounts
County
the
Assessor
those
those amounts
State
as to
Equalization
or
Board
the
them on
the sums of tax due
spread
are appealed, compute
roll,
Treasurer.
tax
the tax roll to
deliver
such taxes as
then
Treasurer to collect
process
requires
to him the
Clerk.
certified
computed
doubts which
have existed as to the
Any
ministerial nature
duties were
court in
dispelled by
these
Continental
Line
Pipe
Co. v.
This
was
principle
case the Auditor
&
In that
S. Railroad
In Silven v. Osage 92 Pac. appeal was taken to district court from decision of the Board of Equalization refusing reduce valuation of the plaintiff’s property. The was taken to a statute appeal pursuant purporting same, fraud, authorize and not on the grounds corruption or conduct so oppressive, arbitrary capricious as to amount fraud. In affirming the lower court’s dismissal of appeal unconstitutional, holding the statute this court said: *16 attempts “The trial court held that this act to make the district courts of taxing power the state share upon in the exercise of the and to confer those legislative tribunals they and administrative functions with cannot be constitutionally operate vested. If the act were held to be valid it would large part purposes transfer the courts a in the valuation of for of taxation, practical By and in effect make assessors. of them the terms the act any property may apply one dissatisfied with the valuation of his to the board equalization and, property, of to reduce the valuation and an to reassess his if made, appeal unfavorable decision be take an district act the court. The provides appeal governed by appeals that such an shall be the law relative to judgments justices peace. appeal from of of Under that vacates the law the judgment appellate or the decision and there is a trial de novo in the court. made, appeal The effect of such an aside the assessment and would be to set only revising correcting duty, would devolve court of or the the the assessment, one, making independent and thus substitute but also of a new and any judgment court, valuation, of the assessors. Since the of the as to for that aggrieved party may appeal, property may of owners likewise avail them- right; selves of and the thus the courts would be transformed into boards of assessment, responsibility fixing of with the the ultimate valuation of purposes wholly impracticable, and, according for of taxation. This is to a court, number of decisions of this in contravention of of the limitations may only judicial constitution. Under the constitution a court he vested with power. power legislative province taxation is a It is the of function. of subject provide legislature to determine and extent taxation of agencies enforcing means and it. In the absence constitutional for of power legislature supreme complete, taxing is restrictions of power justifies judiciary. nothing a that with the in that instrument division of function, power essentially legislative process taxing of is “While extending collecting working legislative taxes is of levies and out the scheme officers, largely of is done them administrative and much what devolved on way power. In ordinarily spoken of that is of as an exercise administrative act; but, course, designated such as an administrative has assessment been of power, just legislative always mere incident is understood to be act great govern- other may acts execution be administrative there powers. . . . mental appeal proposed taken was seen, under which the act “As has been charged with operate made the officers the assessments to vacate would assessments, substituting authority thus duty give to make new courts equalization. of the assessors boards for those their of values be vested in the cannot cited cases make clear functions 688-693.) (pp. (Emphasis imposing them invalid.” and that the act courts added.) in Board Commissioners In of 1967 this court January Brookover, v. P. 2d restated reaffirmed 198 Kan. There the elementary appeal of law. foregoing principles Board of from an order of the denying district Kansas, relief from Commissioners of Shawnee injunctive of all Appeals directing reappraisal order the Board of Tax affirming the taxable estate in Shawnee the lower County. real court it was said: power “A brief discussion of courts to and control adminis- review may many trative orders of tax boards tend or commissions to answer by appellants. raised issues dispute appellant’s right “Appellees there do not contention that is no question. being right appeal, judi appeal from the order There no illegal, oppressive cial redress fraudulent conduct the administrative appropriate through extraordinary legal one of board invoked consisting injunction, quo rel., (State, mandamus or warranto. remedies ex Davis, 708, 710, 893; City City 62 P. 2d Kansas & Jones Laughlin Corp., Steel 360 P. 2d legislative apart “The entire matter taxation is does not exist from *17 (Ness Light Co., 501, 536; v.
statute. & Ice 110 Kan. Pac. 204 Craw Radley al., 704, 386; Comm’rs v. et 134 Kan. 8 P. 2d Shell Oil ford County Comm’rs, 642, 925; Ray Co. v. Board 165 Kan. 197 P. 2d v. Board of County Comm’rs, 899.) 173 252 Kan. P. 2d The assessment and of valuation of always property taxing has been considered an incident to the Atchison, Co., 500; (Auditor Comm’rs power. T. & S. F. R. 6 Kan. State v. Wyandotte Abbott, 148, 160, 416.) Co. v. 52 Kan. 34 Pac. provides: “The constitution of the State Kansas “ equal legislature provide rate of assessment ‘The shall for a uniform (Art. 11, §1.) and taxation. . . .’ legislative legislature spe- power “As is a function and the is taxation cifically charged equal providing an rate of assessment it also has the with authority provide agencies enforcing responsibility. the means and for its (Silven Osage County, 687, 689, 604.) . v. 76 Kan. 92 Pac. . . and a “Matters of valuation and assessment are administrative in character Appeals acting legislative determination of the Board of Tax within its author ity, fairly honestly made, final and not interfere so as when is courts will usurp judgment the board’s function or their for that of the board. substitute (Anderson Dunn, 811, 815, 154; v. 180 Kan. 308 P. 2d Hitch Land & Cattle County Commissioners, 357, 361, Co. v. Board 295 P. 2d “Before the courts will interfere the conduct of the board must be without (Bank Geary authority arbitrary or so or unreasonable as to amount to fraud. previously cited.) It will also Kan. 170 Pac. and see cases contrary be understood that in substantial evidence to the the absence of presumed responsible reappraisal will be that the board for for purposes good 73, 74.) (Emphasis (pp. added.) taxation acted in faith.” of all of Kansas Perhaps Supreme the cases decided Court on the assessments of revising correcting unequal prop matter or Bullard, erty, language Finney County used the court There the plaintiff 94 Pac. was most emphatic. and there his assessment to the Board of appealed Equalization court, after that tribunal to revalue “asking the district appealed in favor of his and for other relief. 353) property” (p. Judgment with instructions Supreme was reversed Court plaintiff court said: to render the defendants. The judgment charged powers as- and duties of . courts are not with the “. . The sessors, right officers as to no to review the decisions of those have legislature placed responsibility property. has value of instance, property is dissatisfied assessors in the first in case owner equalization may appeal to review he to the board of with their assessments prescribed a judgment. the statute values and correct mistakes of When remedy unequal revising correcting alone must assessments that method for appeal gives right the board Since the statute no be followed. from plenary, equalization, opinion and it valuation are its as to merely power because with a tax not within the the courts interfere unequal. assessment is excessive or values, given court, upon inquiry as to has a limited “. . . The trial higher percent some fifteen than opinion is valued at its that Bullard’s *18 give appeal county; from the board does not but the law in the other lands substituting court, in its the court equalization nor does it warrant to the of by sole with the are invested law opinion of the officers who of values for that contemplate, nor not would authority The statute does values. to determine state courts of the permit, in the practical a review and revaluation it be by complain as- might taxpayers of overvaluation instance of who at the board irregular remedy or excessive assessments The sessors. before of for one, adequate legislature and in the by equalization to be was deemed (Em- (pp. 354, remedy.” grounds exclusive it is an absence other of phasis added.) action case, in now to the instant Turning comprised a class therein as County, plaintiffs filed in Grant herein; did they than the plaintiffs in Grant other County taxpayers by as made their allege properties the assessed valuation thirty for 1967 was excess County year percent Clerk value; allege did not the action of they justifiable or the Board County Board of Grant State Equalization ani- a State Board of was sitting Equalization of Tax Appeals fraud, arbitrary or conduct so corruption oppressive, mated with to the assessment regard as to amount to fraud with capricious allege did they for tax What purposes. their ad valorem taxes,” “in the matter of reduction brought was that the action was working Grant “is values for the using and that the Clerk of from that used interests of said leaseholds at a different rate gas interests, minerals, and real and personal property the royalty assess others, and that such assessment of this results dis- plaintiff and others against similarly crimination situated.” plaintiff specifically in the next stated the reason for the petition paragraph brought situation was about alleged by discrimination —“That this from the justifiable certain value fixed appeals taxpayers taxing authorities of Grant Kan- determined the proper sas, Kansas, to the Board of Tax of the State which re- Appeals of such justifiable sulted a reduction value instances 27%.” The reference appeals approximately herein. to the appeals” gas properties “such was a defendant in such private taxpayer named as only party County. Clerk of Grant Board of It is to be noted State was confronted Equalization gas made plaintiffs’ properties with valuations the Grant of a firm upon appraisal officials based (Prichard Kansas, to the State of to its own valuation Abbott), foreign pursuant higher resulted in for gas formula for valuations properties, properties gas than the method of valuation or schedule the Director producing prepared distributed properties Valuation Kansas. K. S. A. Property Department of State of Supp. imposed duty 79-306b assessors all tangible thirty “assess ... at personal percent *19 of its (30%) justifiable value the assessor to determine such schedules, valuation the valuation the any, by use of if furnished added.) director valuation.” The State property (Emphasis of after a hearing Board full and consideration of appeals the found valuation, “the method or schedule the prepared by Property of Kansas, Valuation the Department State provides the best of of measure value justifiable gas producing properties.” (Em- of for phasis added.) Board of Tax as Appeals sitting State Board of Equaliza-
tion gas the had not uni- plaintiffs’ properties been assessed found and with formly equally other in Grant in County, and to equalize order the valuations other in Grant with County it gas determined the values the plaintiffs’ properties should be as it adjusted indicated the which schedule attached the order. It therefore ordered valuation of the equalized plaintiffs’ gas for as properties 1967 be fixed on the attached schedule and directed to correct their Grant boohs officials of records in and accordance with the provisions such order. The action taken foregoing Board Tax was in con- Appeals formity with legislative prescribed mandate for equalizing the assessment of all in between property Kansas persons, firms or cor- porations the same assessment district as authorized by K. S. A. 79-1409.
We action filed taxpayer construe the in private the district court appeal of Grant as tantamount to an from an order of the district Board of Tax But Appeals State court. the law Board no from the State of Tax appeal Appeals authorizes sitting a State Board of to the courts. Under all Equalization as the cir- related and the authorities heretofore heretofore cumstances cited discussed, action filed district disclosed on its face that court of jurisdiction had whatever to district court no entertain the action. legislature statutes enacted no give Since right from an to the courts order State Board appeal of Tax as valuation judgment its opinion Appeals, plenary, of the courts to interfere with tax not within the power is or unequal, be excessive absent merely because assessment or which intervention allegation grounds permit inquiry of equity. the private taxpayer contend The defendants on the that it was ground in the district court filed valid of K. S. A. 60-907 virtue authority granted under pursuant 60-223, A. statutes, with K. S. were together that these (a) (c); They district court. for action filed authority cited has been approved Schulenberg this form of action contend 324; 410 P. 2d Linder v. Board Reading, City Commissioners, 186 Kan. 2d P. pre a taxpayer as whether or not could plaintiff question sented the alleged illegal levy action to injunction prevent maintain of taxes. collection injunctive authorize (a), supra, 60-907
It is true provisions assessment, tax, or any charge the illegal levy relief same; thereof, to enforce 60-907 any proceeding collection whose joinder any persons number of authorizes the (c), supra, *20 or taxes increased may be affected whose is or property 60-223, acts; authorizes class action. and supra, illegal A. follows the G. S. provisions K. S. 60-907 Generally speaking, in 1909 60-1121, legislature (L. enacted originally 60-907, in is somewhat con supra, language The ch. § for paragraphed clarity, its but no change provisions densed or was intended. (Gard, substance Kansas Code of of procedure 623; Annotated, 60-907, p. Schulenberg City Procedure § Civil supra.) Reading, of Kansas that the history expres- disclose throughout Cases tax, assessment,” or any charge illegal levy contained sion “the 60-907, has and its reference to action predecessors, supra, board taken without authority, official or or action administrative fraud, official or board which is permeated with administrative of an or oppressive, so arbitrary capricious conduct or as corruption tax, with the levy any in connection charge fraud or amount assessment. confronting difficulty respondents is that the petition action in district court taxpayer of Grant
the private
County
tax,
levy
any
illegal
or
allege
charge
fails to
assessment. By
can
imagination
the facts
alleged
no stretch
the private
action be construed as action on the
taxpayer
part
County
fraud,
Clerk
corruption
which is
with
County
permeated
or
so
as to amount to
capricious
conduct
oppressive, arbitrary
A.
fraud.
Clerk’s
under K. S.
79-1803 was
County
legal duty
the State Board of
clear—to
as directed
change
valuations
Tax
is the
administrative
highest
the official board which
Appeals,
relating
law
controversies
provided by
tribunal
to determine
assessment of
for ad
tax
valorem
purposes. By
appeal
herein to
State Board of Tax
plaintiffs
Appeals sitting
a State Board of
Equalization,
County Clerk-Assessor and the
County Board of
were
Equalization
superseded
the whole
as to the
controversy
assessment of the plaintiffs’ gas properties
became
in the State Board
vested
as the superior administrative
Thereafter,
tribunal.
action taken by any of the
officials
county
entirely subject
to the decision of the State Board.
S. A.
(K.
79-1602; 79-1606; and
That
order was a decision
79-1409.)
body’s
of an
nature
by statutory
administrative
rendered
authority
officials,
conclusive not
but
only upon
other
in Grant
plaintiffs
private
taxpayers
taxpayer
—the
action,
did not take an
who
administrative
to the State
appeal
Tax
relative to the assessment of their
Appeals
Board of
the Grant
officials.
Inc. v. Board
(Builders,
Commissioners,
379, 384,
It to available to an aggrieved remedies now The taxpayer. the two commenced by plaintiff there the was to brought pursuant action the the to contest assessment and to validity K. S. A. 79-2005 of the taxes which were illegal portion paid the under recover the There the trial court concluded was plaintiff required protest. he resort could remedies before administrative exhaust his to first this said: court protest, under paid taxes recovery to the good entirely appropriate, perhaps Although it would be ". . . grievance taxpayer present as this the admin- practice, a to to first though section, claimed the assessment provided even he in the boards istrative merely erroneous, nevertheless, actually illegal courts levy rather than were legislature adopt procedure compel taxpayer the makes the when cannot remedy. merely an In the instant case the and not exclusive a cumulative illegally merely error, tax assessed correction an an tax was and not the properly brought irregularity 79- or mistake. was under section (Emphasis added.) (p. 2005.” there the rights The court said the fraud on resulted plaintiffs’ arbitrary distinction made between the plaintiffs’ from elevator Mere county. and other property excessiveness Judgment or errors in or mistakes making unequal assessment assessment, but inequality will not invalidate assessments intentionally excessive or knowingly or fraudu- uniformity, if lack of made, relief. In taxpayer opinion entitle will dently court said: by county of assessment fixed clerk- case rate “. instant . . plaintiff’s property, thirty percent of the true value of as than at more assessor per compared cent of the of assessment twelve market value to the rate subject levy, to the same located in tax all other discriminatory grossly arbitrary, oppressive and it constituted construc- so rights plaintiff taxpayer destroyed uniformity as a tive fraud on the equality fixing valuation; also, illegal, the assessed it was maimer sought entitling plaintiff illegal thereby portion the relief protest.” (p. 533.) (Emphasis added.) paid under the tax has Addington case no to the application facts here con- First, court for the following reasons:
fronting court, makes it clear that interference Addington where au- 79-2005, legislature pursuant thorized supra, by the pay- under ment taxes protest, requires conduct on the part of taxing intervention permits officialswhich court of equity illegally —an tax—an assessment assessed brought about conduct "so arbi- trary, oppressive grossly discriminatory that it constituted con- Second, (Emphasis structive (p.533.) added.) in Adding- fraud.” ion the administrative remedies available were not pursued to the State Roard of Tax Appeals and the assessment by officials, taxing local who made were parties defendant, had not been superseded. the record here presented
On the district court in the *22 Kansas, simply in Grant taxpayer County, interloper action with no assess in Grant whatever to authority property legal interference a clear attempt duty imposed upon with Clerk of Grant of K. S. A. 79-1803 to provisions comply with order of the State Board of Tax Appeals equalizing the valuation and assessment of all in Grant County property (a district; assessment K. S. A. separate 1965 Supp. 79-1411b) pursuant to K. S. A. The 79-1409. district court of Grant no County had jurisdiction to hear the action as private taxpayer determined from therein; allegations and it had no authority order the County Clerk of Grant reduce assessed valuation of all in Grant owned plaintiffs in the private taxpayer action by twenty-seven percent, thereby the action taken nullify by the State Board of Tax Appeals sitting as a State Board of Equalization. action in Grant County,
having failed to assert any grievance as to the assessment of their respective properties Grant County to the highest administrative tribunal cannot, provided by legislature, after the expiration of the time authorized for the assertion of such administrative remedy, seek redress from the decision of such tribunal as to other property by judicial Grant County action in the manner here attempted.
We hold the of the district court of Grant County in private taxpayer granting injunctive relief to the plain- void, tiffs therein is nullity absolutely and the defendants duty herein have a clear legal follow applicable statutes as this court. heretofore ordered did the Court take
Why Supreme jurisdiction of these original in mandamus? proceedings are
We bombarded counsel for the respondents (the County and counsel for the Attorneys) interveners (Southwest Kansas Owners Association and its Royalty with members) technical rules ingenious designed uphold device conceived by mind’s intent circumventing established tax administrative procedures pre- on a matter in legislature gas scribed which the owners of Kansas, leaseholds in three counties known as the commonly field, Kansas Hugoton gas pitted against other property owners in these counties. issue between them is simply if the leaseholds can companies owning gas be made to bear burden, will, the tax the owners of other more of in direct their tax burden within smaller to bear be required proportion, counties. respective on October this court were filed petitions the original
When *23 (Mor- 1967 and October Counties), 13,1967 and Stanton (Grant final that time for apparent became immediately County), ton day the 1st On or before the essence. was the matter action on of counties respective of the November, 1967, Clerks the of real and personal the the taxes levied certify to required were respective to the counties respective of their the amount Treasurers with the respective and charge Treasurers S. A. 79-1803). tax roll (K. on the taxes assessed respective of the November, S. A. (K. of 1967 day the 1st due on The taxes became district the order of the to countermand If 79-1804). proceedings the actions in three counties private taxpayer in each of the October, plain- the day the 31st of delayed beyond could be first round have the actions would won the tiffs in and the state government detriment of the in battle to the the involved. the three counties government failed prior such orders final action to countermand In the event have herein, would 1, 1967, necessity, the plaintiffs to November (79-2005, of taxes under payment protest had to resort to the the the result in event attempting predetermine Without supra). under paid pro- the exact of the taxes portion of such proceedings, test, assessment of the gas prop- an valuation or illegal because of for erties, and unavailable be in fund impounded separate would final action county the until respective governments operation the issues. Under normal taken in a court of law to resolve beyond year this no doubt far carry circumstances would funds were for the of the budgeted operation respective such and state and for all be governments, practical purposes county they for the in which respective governments year lost to these If in such each recov- budgeted. proceedings plaintiffs were assessed of the taxes under illegally portion paid protest, ered would never be available for the total amounts operation such the extent Considering of the governments. gas respective prop- Grant, Morton and held Stanton Counties erties valuations, of taxes payment and their respective plain- would protest herein under have resulted in a substantial tiffs counties, government in these three handicap operation operation such jeopardized governments. remedy of taxes legal (resort payment While under pro-
239 79-2005, herein available to the plaintiffs pursuant supra) test sug- situation totality be adequate plaintiffs, clearly inadequate right remedy would gests legal the district court occasioned intervention wrong actions in the private taxpayer respective its through orders counties. that mandamus is proper
Prior have recognized decisions to obtain remedy proceeding where the essential purpose the law for the guidance interpretation authoritative business, administration not public officials their public remedy there exists at law. withstanding adequate the fact also State, Williams, 919; P. 2d v. Kan. Township (Emporia rel., Comm., 986; v. State 132 Kan. 295 Pac. Kit Highway ex 563; State, rel., 2d 18 P. ex Boyd, v. tredge Peterson, 626, 78P. 2d rel., State, ex State quoted
A statement is found frequently Comm., It reads: supra. Highway *24 speedy adjudication questions a . . use of mandamus to secure “. The discharge guidance of state and official boards in the for the officers of law (R. 60-1701, 60-1702.) in this S. con- duties is common state. Our of their expedite ceptions proper of mandamus to the official of the use business of beyond justiciable expanded the ancient limitations of matters far have state mandamus, 334, 335.) (pp. [citations]”
in T. & S. in is A. F. Ass’n v. State point Hospital case A more recent Taxation, 312, b 173 246 P. Revenue Kan. 2d 299. Commission of in an original mandamus in proceeding There defendants had a plaintiff plain Court argued adequate Supreme remedy 1949, it of G. S. 79-2005 then (as appeared), at law reason under protest. authorizing taxes statute injunctive payment tax, or assessment levy any charge for the was illegal relief quoted court, 1949,60-1121) S. but it in said: part (G. remedy specified by 1949, 79-2005, have held that the heretofore G. S. “We remedy. (See Thompson Chautauqua County not an exclusive v.
was Comm’rs, 839; 75 P. 147 2d also Sherwood Const. Co. v. Kan. Board of County Comm’rs, 409.) Probably 207 P. 2d the best state Kittredge Boyd, of the rule is that ment P. 2d said: where we “ proper remedy T. It is first contended that mandamus is not the —that adequate remedy plaintiff plain jurisdiction a has at law. In this where litigation merely to obtain the desideratum of the is an authoritative determina- question purely legal guidance public some for the tion of officers mandamus accomplish objective. familiar vehicle to has become the . . 361.) (p. rel., State, ex above from the statement quoted court then Comm., and said: supra, Highway State with the public question and in accordance important here “There is original jurisdiction mandamus our foregoing we exercise authorities shall added.) 316.) (Emphasis (p. it.” and settle A. 60-801provides: K. S. tribunal, board, court, compel proceeding inferior some is a “Mandamus duty duty, specified re- perform person a corporation or or some party order to whom the office, trust, or official station
sults from directed, operation of or from law.” is procedure, code civil a of the new The above section is part Gard, 1949, 60-1701 and 1702. G. S. and was designed supplant change that no says procedure, code civil on the new in his work utilization of the for the intended, procedure to make the except for other types with that indicated uniform and consistent remedy 60-801, supra, of mandamus definition says of action. He short, and sufficient. concise purpose compelling performance It for the “. . . is available duty, involving discretion, by person clearly the exercise of defined duty relationship, public corporation arises out of a trust or a or cor whose limitations and also
porate responsibility. spelled out The former statute these remedy plain is not available where there is a limitation further adequate legal remedy. (Gard, . . .” Kansas Procedure Code Civil (Emphasis added.) Annotated, §60-801, pp. as a proceedings designed is made that the herein are Objection of a juris collateral attack competent diction in each of the three counties here involved. While we have mandamus to be an holding remedy been cited to no case improper court, a case on the confronting bearing in the situation here Co., 12 Kan. & F. Rld. Co. v. Comm'rs point is A. T. S. Jefferson There, Brewer, 127. written was held opinion Justice *25 ordinarily doing that mandamus will not be issued to command court; an act the decree of a but when one enjoined by competent a that decree had which could be rights was not party who mandamus, it can a writ of be used. There valid only by secured entered Circuit Court of United States for decree was Kansas, District of while here we are concerned with decrees in three counties having jurisdiction the district courts issued Court, and where such decrees have been Supreme inferior to the and of no force and effect. The absolutely to be void demonstrated there said in the opinion:
241 have, may be en plaintiff must rights the “But it is insisted that whatever issue to command action; ever will forced in a that no mandamus different injunction of a order doing a valid to be done of an act which is forbidden fires, placed between two competent court, party be because thus the would contempt It is said punishment event. and in either liable to court, and that the mere discretion of writ of mandamus lies within the writ; necessarily that no rights him to the party entitle fact that a has will not place defendant as to such manner court will exercise this discretion in writ, prerogative writ, originally and jeopardy punishment. That this discretion, partakes solely original still of its nature so far that it matter yet largely court, remains the discretion of the cannot be doubted: The within rel., Wells, Marston, State, Kas., v. ex 525. But in the exercise of that dis rights regard plaintiff, had to as to cretion must be well dangers rights only through of the If can be secured this defendant. those writ, simply plaintiff it. If the it would be an abuse of discretion refuse any rights, guarantees time, place, has the law to it a and tribunal rights destroyed by enforce them. Those cannot be decree which it is party privy.” (p. 136.) nor neither rule, The foregoing though recognized as an to the exception rule, general was reasserted in State v. Hornaday, 62 Kan.
Pac. 998. Court is Supreme granted jurisdiction in original proceed in mandamus
ings Kansas Constitution. This (Art. 3.)§ jurisdiction is plenary be exercised to control may the action courts, of inferior whom the over Court has Supreme superintending Fischer, authority. (Bishop 890; 145 Pac. Amal Cutters, Johnson, Meat gamated Etc. v. 178 Kan. 182; 286 P. 2d authorities cited these cases.) Bishop case and the authorities cited therein original jurisdiction in mandamus was give exercised to speedy court, where the inferior without relief having jurisdiction over or his plaintiff property, without notice, issued a mandatory injunction which in effect adjudicated plaintiff’s rights deprived the plaintiff peaceable of his possession property. There was said the action taken by the inferior tribunal could not be as an justified exercise of judicial and was an abuse and power manifestly perversion process. order was held to be in excess of the inferior corut’s jurisdiction void. relief was absolutely Appropriate granted. is, course,
It axiomatic under our procedure that a void judg is a nullity ment or order collaterally attacked at any Friesen, time. 429; 410 P. 2d (Friesen and cases therein; and K. S. A. 60-260 [&].) cited see of Kansas it early history
In the was held that a stranger to the *26 242 a where such judgment stranger collaterally impeach could
record
that would
conflicting right
independent,
held some pre-existing,
if
were allowed to have full
judgment
injuriously
be affected
Kimberlin,
While counties same district here involved (the judge) of the three useless, final been if action was delayed have futile particularly *27 cases, 31, 1967, in each of the we considered the beyond October to be allegations disposition) in the consolidated petitions (here so concern to the this state and extraordinary public Grant, the in Morton and operation county governments the Stanton Counties as to immediate attention court. by this require that
It has said mandamus not lie at the been will instance of a that compel duty; citizen to private performance public state, such a suit must be of the and the brought County name Attorney and the General are the officers authorized Attorney of the in legal proceedings use name state to enforce the per Where, however, formance of duties. an individual shows public himself, an and not that injury specific peculiar interest one general, he with the in of mandamus community remedy shares and the other remedies are available. extraordinary (Bobbett State, Dresher, 9; ex rel. Kan. Hawkins v. Gregory, 247; State, 174, 354 26 P. 2d and Rowlands v. P. 2d Whether or not a individual has himself private brought within narrow limits of rule be determined the well-established must from the particular (Rowlands facts of each individual case. State, supra.) court, confronting plaintiffs,
On here particular facts collectively in actions have shown interest respective each themselves, in they do not share with specific peculiar singled all other counties. were They their taxpayers respective dif- out in the actions in each of the counties for private taxpayer to the County ferent Had been resort they required treatment. action, counties here involved for it is Attorneys respective of the met much success. each of unlikely they would have with respective County in these counties private taxpayer actions Clerk, alleged the answer Attorney, represented County who that the Clerk was County compelled on behalf of the Clerk law to the Kansas Board equalized values spread record, but immediately Tax on the roll as set forth Appeals into a stipulation entered of facts County Attorney thereafter the State findings of the Board contrary (¶1 stipulation) further, judg- failed from the appeal Tax to take Appeals, on court in such behalf ment of the district Clerk private taxpayer herein these parties were no notice of actions, they given in oral were argument and claimed orders which had been en- actions or of the these private taxpayer these therein; that discovered only by they it was chance tered answer, and order stipulation orders. In Grant petition, 7, 1967; at on in Stanton September were all filed 2:00 m. p. 11, 1967; and in Morton were all filed on they September on September both filed at 2:10 m. p. answer were filed at 1:50 m. p. and the and order were both stipulation or returned No summons was ever issued following day. of these actions. any stated,
For court in the reasons this of its exercise power discretion took jurisdiction original these in manda- proceedings mus, and after matter in- hearing the determined the mandatory decree junction entered the district court in each of the three *28 counties Morton and action (Grant, Stanton) private taxpayer void and of no force effect. It and entered orders for thereupon the as in plaintiffs their on 31st requested respective petitions the October, 1967, day in accordance with the order heretofore set forth. J., dissenting: my judgment the court improvidently
Fatzer, 31, 1967, issued its order of mandamus on October here confirmed by the and I must majority opinion, Although dissent. respectfully time I presses, my feel to state views. compelled Grant,
The issues in cases in district presented the the courts identical, Stanton and Morton Counties were and all reference to clerk, court, the and the district county applies well to Stanton and Morton Counties. The in the instant as the referred to private plaintiffs. has and I think unnecessarily, injected court mistakenly, controversy itself into the between the land and long existing Field, hand, Gas on the one royalty Hugoton owners the leasehold interests or producing companies, the owners hand. This “running fight” the other extraordinary has hearing from rooms of raged State Corporation Commission the cloistered chambers of the Supreme Court of the United court, It has in this States. drawn Federal Commission, Power courts, district and federal members state of the Legislature, Bar, of our leading county members attorneys of most Gas every county Hugoton Field. The has controversy flared and royalty land Actions not yet. for and the end is years many Kansas district court federal pending owners are presently United States to the helium of the sale of the proceeds over state, of our area gas produced extracted from government millions of many which, amount to some according experts, district in our cases dollars, pending to mention the hundreds involving gas sale of for the differential price courts to recover the FPC, .11 cent wellhead the contract price, orders of which the State Commission Corporation order issued price State Service Gas Co. v. this court Cities was sustained 528, Commission, 454, 2d 304 P. reversed Corporation States, opinion, United without formal Court of the Supreme 355, Comm'n, 2d State 355 U. S. L. Ed. Service v. in Cities 2d S. 2 L. Ed. 355 U. rehearing Ct. denied 78 S.
S. 531. Ct. order of man- issued its states
The majority opinion that “time 31, 1967, reason primarily on October damus following day (November . essence” since on the . . was the be certified ad taxes would the 1967 valorem 1967), properties a lien and become due clerk become not issued on that and, further, were involved, that if order had date, herein “would have to resort the private plaintiffs “would of taxes under protest (79-2005, supra)” the payment govern- in a handicap operation resulted substantial have counties, of such jeopardized operation in these three ment a situation “so extraordinary and produce county governments,” and to the operation to the this state public such concern as to require . . . immediate atten- *29 county governments off does not let the court explanation But this this court.” tion dilemma, that expect it is reasonable since the horns of paid in Grant have owners royalty land countless 79-2005, A. to K. S. taxes protest pursuant 1967 under their pay will in a fund separate be impounded taxes to illegal alleged causing until a county government operation for the unavailable validity those As a protests. law has determined court financial structure of Grant County “running fight,” result of and the reasons advanced the ma- be impaired, doubtless will of the court’s issuance of the order of in support opinion jority unavailing. mandamus order of mandamus
Moreover, despite issued its this court 246 “commenced no they pro plaintiffs
allegations Grant for the court of in the district ... ceedings and useless.” would be . . . any reason futile and is totally unsupported The allegation supplied.) (Emphasis court it the district may, Be that as judicial system. an insult to our concurrent actions in mandamus jurisdiction Grant has court has supreme While the that of court. supreme with and under certain instances mandamus in original jurisdiction circumstances, over jurisdiction has appellate also certain I County. regret Grant courts, court of district including district with deference—that the broadside majority’s and I do so say, decree of the district court creates injunction mandatory at the and violates well settled justice in the administration confusion judgments review of relating appellate orderly procedure rules of statutory laws decisions of this courts based of district them, all tends to and degrade of which belittle construing Our should not be original jurisdiction system. district court our in mandamus actions com issuance of orders perverted officials to compel public perform citizens to by private menced should not be made duties, remedy specifically, and more their this district courts of state. In judgments to review available 890, 105, Pac. Mr. Burch said: Fischer, Kan. v. Bishop Justice a substitute appeal, cannot be used as mandamus “The action at adequate remedy law exists.” plain case where any nor rel., State, Norton, In ex 20 Kan. Mr. supplied.) (Emphasis “. . . The writ said: never mandamus] Brewer [of Justice rulings judicial officers, errors but to correct attempted . make a . .” ruling (Emphasis them to compel only supplied.) 7, 1967, the addition, September between date the sometime entered decree was injunction
mandatory court, instant action was filed in this the date the October nature of the were advised plaintiffs the private circumstances, and Under those County. pursuant in Grant entered Commissioners, Board P. Moyer should have made “timely 2d the private application” action. S. A. in that 60-224 (K. [2].) to intervene As the ma [a] indicates, the private plaintiffs only had an ade jority opinion at law available to them remedy by paying their taxes quate under but, case, Moyer as I understand the they had the protest, right to *30 court Grant the district judgment the intervene and appeal the this court in reviewed judgment to have this court respects, in those Failing law. manner provided mandamus. its order of not issued should have clerk of Grant the county affirmatively The record discloses the State Board orders of with County complied respects in assessment valuations therein extending of Equalization by Thus, interests. leasehold established the private plaintiffs’ upon to failed refused arbitrarily cannot be said the clerk it Hence, law. her legal duty imposed clear-cut perform is to of this court’s order mandamus only obvious purpose court of Grant district collaterally judgment attack As absolutely that the was void. under guise noted, is clear legal hereafter it should be borne mind there and an erroneous judgment. distinction a void judgment between Is the available to the remedy private plaintiffs? of mandamus is not. the first instant is my judgment place, In action real essentially validity one which of assessments of questions in Grant of taxes personal levy thereon. In the second issuance of order of was place, mandamus that the mandatory injunction based conclusion entirely upon of the district was absolutely decree void. stated I will discuss the order after two mat- points primary are ters dealt with.
First, I to our statutes refer new briefly pertaining mandamus. I do not understand that the new code civil procedure, our statutes S. relating (G. mandamus 60- repealed prior 60-801-60-803, A. and enacted K. S. any made 1701-60-1712) to the extent rights respect substantive with of the reach change and who in a proper parties given situ remedy plaintiff *31 answer to the petition, that the for the remedy, petition the issue is constitute the on which pleadings perhaps reply, Annotated Code of Civ. Proc. tried. Kansas Statutes (5 Vernon’s Hence, [Fowks, Thomas], mandamus still remains Harvey, § unusual relief but extraordinary, discretionary remedy), granted (an manner usual actions. civil
Second, we were told in oral
that the private taxpayer
argument
action in Grant
to K. S. A. 60-907
County was commenced pursuant
and 60-223. The briefs of the defendants and the intervenors make
the same claim. That action had all the
of what
appearance
pur
ports
action,
to be a class
but named
Frank R. Collins as
only
plain
tiff. Both statutes were referred to in
v.
Read
Schulenberg City of
ing,
Sec. 60-223
states
(3)
general
rule of
a class
bringing
sought
where
to be
right
enforced for the
several,
class is
there is a common
question
law or fact affecting the several
and a common relief is
rights
sought.
(2 Vernons Kansas Statutes
[Fowks,
Annotated Code Civ. Proc.
Thomas];
Harvey,
Law Re
view, and other commentaries.) Sec. 60-907 authorizes the bring
of an action to
ing
enjoin
illegal assessment or levy of a tax or
it,
charge,
any proceeding to enforce
and deals with that specific
matter, and with that alone. The statutes should be construed har
that each
moniously, so
has a field for its operation, if that reason
done.
ably can be
Following
general rule that a statute per
taining to
specific thing takes precedence over and controls the
of a
application
general statute which might be construed to relate
to it
(Wulf
Fitzpatrick,
Kan.
838;
261 Pac.
Sherman
Alden,
Comm’rs v.
158 Kan.
509;
148 P. 2d
Cutrel Best,
It follows since action, district 7, 1967, being appli- construed as should be on September entered Grant County. to his only cable now to first with to the point availability Turning respect lie at legion Our cases that mandamus will not *32 remedy. a the citizens to the private compel performance instance brought actions be in the name of public duty, that such must the the relation of or the county attorney attorney state on the 471, 469, 175 264 In Smith Kan. general. City Village, v. Prairie 1053, P. Mr. a few of 2d collected cited Harvey Chief Justice that where holding our cases on the There are cases many point. an to shows an or injury specific peculiar individual interest himself, community general, and one not shared with However, remedy of mandamus bemay available. an to exception has been rule with engrafted remedy respect to original actions in mandamus in supreme court by aggrieved taxpayers. Wichita, 455, 651, v. Weigand City 207 Pac. it was held: “Taxpayers specially aggrieved by public levying officials in action right against provided by their to taxes have of action the code enjoin levy assessment, invoked; they remedy promptly such or if such but general legal question right validity levy have no to or assessment compel instituting original supreme an to action mandamus in the court public perform official-duty. to their officers compel duty brought public perform to “An action officials their should be county attorney attorney- name of the on the relation state general, ordinarily and such action cannot maintained citizen.” be (Syl. (Emphasis supplied.) ¶¶ See, also, Smith Prairie City Village, supra.
It would have been improper to have county attorney commenced mandamus in this court in the name of the state for and on behalf of the private As counsel of plaintiffs. record for the 19-702, clerk in the district court S. A. (K. 19-704), county attorney would have his as duty attorney violated commence such an See action. American Bar Com Association See, also, State v. and 37. Ethics, Nos. 6 Canon Legal
mittee on Wahl, 182 Kan. 774, Wilson P. 2d 178 Kan. Leigh, insofar relationship attorney-client where 532, 537, 2d 322 P. the private excuse not that did But is discussed. as here applicable, to in general attorney they requested alleging from plaintiffs court, or in the supreme mandamus action original stitute mandamus refused, original where particularly official that such the district attack collaterally sought being void. court of no case has been cited states majority opinion con situation remedy mandamus to be an
holding
improper
were
defendants
for the
so. Counsel
fronting
Perhaps
court.
and were
presented,
to brief the legal questions
afforded little time
argu
to oral
prior
brief
not afforded
of the private plaintiffs’
copies
majority
ment on October
1967.
16 of
Syllabus paragraph
the pri
states in effect that the
available to
opinion
legal remedy
a col
notwithstanding
vate plaintiffs
clearly inadequate
would be
decree
mandatory injunction
lateral attack is made
a void
not
parties
entered
a district court where the
were
cites
opinion
such action and are
entitled to relief.
clearly
Co.,
from T. & S. F. Rld. Co. v. Comm'rs
quotes
A.
of Jefferson
ordinarily
to the effect that mandamus will
decree of
act
doing
enjoined by
issued to command the
of an
to that decree
court,
one not a party
when
competent
particularly
a writ mandamus.
only by
had
which could be secured
rights
*33
Brewer’s
that mandamus will
opinion expressly recognizes
Justice
not lie where there is
a plain
adequate
ordinary
and
in the
remedy
law,
the
but where the
remedies of law are
proceeding
ordinary
of
claimed,
right
insufficient for a
enforcement of the
the writ
proper
There,
sought
be
the
to
the issu
may
plaintiff
compel
available.
and
Brewer
by
county
ance of railroad aid bonds
the
stated
Justice
difficult
other than
what
mandamus
say by
proceedings
it was
to
may,
that as
opinion
bonds
Be
the
could be obtained.
the
in State v.
to
rule
Hornaday,
an exception
labled as
properly
334,
In the the the of the Hornaday an action in in original supreme commenced mandamus the general the charita- to members of Board of Trustees of the court the compel the of this state to with an act of comply Legislature institutions ble of their duties. Mr. Chief and in the proceed performance Justice Doster, court, the said: for speaking (1) principal to That “Two defenses in return the writ: are stated the board, writ, enjoined of the had been the members the the service of before by by Clay against them county, the district in an instituted court of action doing county attorney, Kansas, upon from state of of the relation by required act; authority performance them. statutory its (2) no for exists to is admitted alleged defense The matter in the first of the above claims doubt, true, defense is opinion, that such of the without be we are valid one. “ compel granted is to ‘The rule the writ not be well established that will performance injunction expressly act an an which has been forbidden competent jurisdiction, or in the same court or in another court of whose performance existing injunction, even an would be direct violation of injunction though person seeking party to the mandamus is not relief subject compel parties perform them Courts acts would suit. will not to which punishment, put the order writ would them in conflict with or which court, cases, application court, is made to which another nor in such will (High, injunction.’ inquire propriety Extr. mandamus, for a into of the Leg. 23.) Rem. § Wyandot County, “The & R. R. case of Ohio Indiana Co. v. Comm’rs of many cases, support quoted text. There Ohio St. like other F. apparent exceptions rule, A. T. & S. are occasional to this is one which Co., general Rld. Co. v. but the doctrine Comm’rs 12 Kan. of Jefferson seeking ground one as stated. was that the of the decision that case injunction party relief as a mandamus had been denied admission only ultimately proceeding, besides, and, rights had which could enforced jurisdiction Therefore, mandamus. courts courts while the district court, supreme arbitrarily ignore judgments to the we cannot their inferior they, doing and orders and the undoubted command act which within jurisdiction, enjoined. revise limits their have We or otherwise reverse judgments orders, brought only their we can do so when us in but way purpose.” (l. (Emphasis supplied.) c. formal in State rule stated in was reaffirmed and Hornaday applied original was an Snelling, 80 Pac. name mandamus supreme commenced county attorney judge of the compel state relation arrest of warrants for the certain Court to issue Coffeyville issued writ persons. pleaded injunction The answer commissioners, the sheriff against the district court attorney, the county his from deputies, arresting employees who were company engaged laying pipe of a mains across gas county. It was held that to is highways the roads have *34 the injunction a writ of mandamus would violate terms of sued not, and that the court supreme of the district court will manda- mus, warrants in of the in- to issue violation magistrate require that the rule stated in junction. I have no doubt but is Hornaday the law of this state.
It is
not
to the action
parties
true
were
in
private plaintiffs
the district
Grant
No substantial reason was al-
County.
court of
not have
to be
leged why
private plaintiffs
applied
could
made
action,
in that
and set
claim
up every
or to intervene
parties,
set
in
for this order.
They only alleged
has been
up
to commence
proceedings
would have been
and useless
futile
indicated,
As
had at least two
they
adequate
court.
remedies
First,
timely
at law available to them:
to have
intervened pursuant
and,
to 60-224
as construed
(a) (2),
applied Moyer, supra,
second,
that judgment,
to have
from
perfected
appeal
have
their taxes under
commenced actions in the dis
paid
protest
trict court of Grant
to recover the
taxes.
alleged illegal
See
Kronewitter,
recent cases of
v.
our
Cities Service Oil Co.
199 Kan.
804,
2d
428 P.
Cities Service Oil Co. v. State Board of
instance,
199 Kan.
The statements matter judicial in any are “interlopers” of our district courts any that the action I agree Neither can pending before them. an from order “an appeal
district court of Grant was exists. of appeal such right State Board of Tax No Appeals.” 70, 422 Brookover, 198 Kan. Commissioners v. (Board an order Moreover, about P. 2d there is sacrosanct 906.) nothing in litiga of the questioned State Board of and when Equalization, course, tion, Of validity. it is the its judiciary pass upon which must such an clerk as to valuations binding county order is since 79-1803), certified in order S. A. 79-1409 and particular (K. the Board its is regularity presumption based presumed, that proper acted and in faith. The rule assumes honestly good valuation, any, if methods have been followed and an under or over & Co. is matter of the exercise of Land Cattle judgment. (Hitch Commissioners, 357, 364, v. Board 295 P. 2d 179 Kan. However, of orders validity courts into the inquire issued Salt State Board of Co. Ellsworth Equalization. 82 Kan. 107 Pac. it was held: equalizing fixing tax “While the decision of the commission erroneously, property honestly, although plenary assessment of is and final when made, taxpayer alleged injunction, of a for an it was that upon plain- the tax commission had fixed an valuation exorbitant excessive property, excessive, grossly tiff’s one which the commission knew placed plaintiff’s property higher had it a valuation on [or much much placed by others, good lower] than it had on similar owned stated a equitable relief, cause of action for and the demurrer should been thereto have (Syllabus.) overruled.” In the it was said that opinion mere error of of the assess judgment ing court, officer is no reason for interference but officers, entitled to the honest of the and if assessing excessive, assessment is fraudulently made or if it is or arbitrarily capriciously made and is so out of actual value proportion as to reasonable give assurance that the officers could not have been valuation, honest in in en fixing justified courts of equity joining enforcement of the tax. It said the fact was further that the State Board of did not obtain the best evi Equalization dence of value best the value of adopt plan estimating does not entitle the to an necessarily plaintiff injunc tion; theory must its appear practical operation and that through arbitrary, hurtful plaintiff capricious officers, assessment unjust taxing and fraudulent action in Bank v. from reaffirmed and quoted case was was made. The 376, 379, 496. 111 Pac. Lyon County, Commissioners, & Co. v. Board In Hitch Land Cattle remedies the administrative pursued supra, plaintiff-appellee County- to the grievance available and its assessment presented sought the relief board denied Board of Equalization. of Revenue the State Commission and the company appealed Taxation, Equalization. as the State Board of sitting *36 not that the facts did State issued its order Board of Equalization sustained and assessment and justify a reduction of the valuation protest its taxes under having paid board. The plaintiff, Despite action in the district court. commenced an (79-2005), reme tax assessment fact the had administrative plaintiff pursued dies, an the State Board the issuance of order including judgment sustaining plaintiff the court entered Equalization, its affirmed. Directing in all this court respects, upon appeal, court without to power attention to the contention the district tax, on land and compute valuation place plaintiff’s court, Thiele, said: speaking through Justice angle might court had one be said the trial “. . . While viewed from issue, nearly to to fix a valuation in it is more correct order determine say stipulated high in an amount that under the facts the valuation was too equal placed interests, on and all that was to the valuation the severed mineral (1. 364.) a mere calculation.” c. involved was Was the judgment district court of Grant void? distinguish crux of this case is court’s failure to between formally exercise of its a case its merits power review before it for S. A. appellate pursuant (b), review to K. 60-2101 the limitation of its to determine the of a power validity an rendered a district court which is attacked in collaterally It is original unnecessary mandamus void. proceeding being the mandatory the merits of decree since pass upon injunction I judgment is not before the court for review. can appellate that not that the district court of Grant did not have agree juris hear diction to and determine the Collins’ action. private taxpayer indicated, jurisdiction As hereafter the distinction between lack of a decision of a is of affecting practical error court any impor a court has jurisdiction, tance in where erroneous decision void, therefore, subject is not collateral attack. (20 90, 2d, Courts, 450, Time pp. 451.) Am. does not permit § Jur.
255 them include: a few of but point, research of all our decisions on 69; Lumber Co. Larkin, 90, Eberhardt 45 Pac. v. 57 Kan. Bradford Smith, 757; 158 Kan. 386, Bitzer v. Lecuyer, 153 110 P. 2d Kan. 689, 83, Mitchell, 653, 148; 228 P. 2d 145 P. 2d 170 Kan. Bindley Johnson, 740, 100. and In re Estate 308 P. 2d 180 Kan. Our statute the district gives S. A. (K. 60-907) expressly tax jurisdiction brought private to hear and determine suits assessment or illegal payers obtain relief injunctive against to enforce the an illegal levy any tax or any charge, proceeding enjoin action was to same. The of the purpose al interests land and mineral assessment of Collins’ plaintiff to be at a 27 leged rate excess of assessed valuation percent action was not au private plaintiffs’ only properties. 60-907, thorized by many but decisions of this court. (C. B. & Q. 1039; Co., Rld. Co. v. Comm'rs 54 Kan. 39 Pac. Atchison 1042; Ferris, 120, 122, 123, Bank Garnett v. Pac. 55 Kan. Bank v. Lyon County, supra; Railroad Co. v. Mitchell 582, 584, 729; Kan. 204 Pac. Patterson v. Montgomery Comm’rs, 400; 145 Kan. 66 Pac. 2d Hitch Land & Cattle Co. Commissioners, v. Board Southern City Kansas supra; Comm'rs, Rly. Co. v. Board 331 P. 2d See, also, Comm., Union Pac. Rld. v. State Tax Co. 2d to determine 68 P. a district court has the holding power *37 unreasonably whether the was or arbitrarily assessment valuation See, also, v. made State Tax Commission. Linder Board 815, Commissioners, 107, where the Kan. 348 P. 2d 186 1949, 60-1121 G. S. action was under petition alleged brought A. the ultimate relief K. S. and it was said that (now 60-907), statute, and the plain sought precisely was mentioned tiff was to the action. bring entitled jurisdiction a has uniformly
It has been held that where court a matter renders subject action and of the parties erroneous, within its even if competency, judgment is final and conclusive unless corrected or modified on appeal, statute, and it prescribed by may such other method as be A collaterally many attacked otherwise. few of our cases on Guthrie, 829, 359; are: v. 103 Kan. 177 Pac. Rennolds point Fletcher, 359, 1158; 58 P. 2d Ins. Co. v. Kan. Union Central Life 610, & 2d Power 203 P. Light v. Kansas Co. Middendorf 1075, Farmer, 2d 156; 177 Kan. 281 P. In re Farmer v. In 2d 290. In re Estate 298 P. 179 Kan. Burling, Estate Johnson, it was held: supra, matter, a and the power and decide of a court to hear is the “Jurisdiction upon inquiry right jurisdiction to enter but a test of is not a correct decision rightly, power decide a case decision; to the and make a it is not limited wrongly.” (Syl. power ¶ but to decide it includes the judgment depends a a render valid court to Jurisdiction a court to entertain authority statutory three The things: (1) was action which kind of arise decide questions action, statutory au means taxpayer and in the Collins’ brought, aby decide an tire to hear and thority of enjoin and seeks to aggrieved who feels himself can charge. tax or There levy any assessment or alleged illegal authority. the district court lacked such be no contention of the person it. grants statute specifically (2) Jurisdiction named as defendant. This whether he may depend upon properly in a manner provided with summons party-defendant, served law, In tax in the case. or enters his voluntary appearance action, her in the action clerk entered appearance payer a particular issued. order to render no summons was (3) to be deter question should judgment, pleadings present challenge as an and contain sufficient facts mined issue attention of as to its merits. Comm’rs (Sheridan the court Acre, 2d 250.) 160 Kan. 160 P. concludes majority opinion allegations the taxpayer’s and the stipulation of facts failed to contain petition sufficient facts relief, a of action for to state cause thus rendering the judgment void, it to subjecting collateral attack. I Again, do not agree void, decree was it was though perhaps erroneous. In Eber said: Lecuyer, supra, hardt Lumber Co. v. appellant, eireumstances, collaterally sufficiency under these “Can attack the petition granted? of action for state cause the relief This court long been committed to the doctrine that which states no has cause judgment, good against attack, a collateral ‘if it of action will sustain con challenge the attention of the court as to its tains sufficient matter merits.’ Wyandotte (Investment 708, 709, Co. 86 Kan. 121 Pac. See, also, Daniels, cited.) 911; Head v. cases therein 15 Pac. *38 Co., Wyandotte County 996; v. Investment 80 Kan. 103 Pac. McPherson 828, 829, (l. Martinson, 390.) 224 Pac. 115 Kan. 907.” c. course, Of as stated in Investment Co. v. Wyandotte County, was “ . . if a blank is
86 Kan. 121 Pac. mere filed paper attach, as a because there would petition, jurisdiction would not Wallace, In In for to act re nothing upon.’” (p. court 89 Pac. it was held: jurisdiction depends which the court “Where the of the a fact court required determining is fact ascertain and decide its by a or reversed jurisdiction does until aside exist is conclusive set evidence proceeding.” (Syl. ¶1.) direct juris- In that where Mr. stated Chief opinion, Justice Johnston suit, adjudi- and is diction in a litigated on a fact that is depends then question cated in favor of jurisdiction, who party avers of jurisdiction is judicially decided and record is con- the judgment clusive aby evidence of set jurisdiction until aside or reversed direct for cases follow- proceeding. See Kansas Citations Shepard’s ing In re Wallace.
On case, the face of district the record instant and, had jurisdiction my judgment, of the parties it had jurisdiction of subject taxpayer’s matter since the private petition the attention contained sufficient matters to challenge the district court arguendo, as to its merits. Assuming, concludes, failed action, to state majority opinion cause of as the against nevertheless was the judgment sufficient to sustain collateral attack. Lumber Co. It (Eberhardt Lecuyer, supra.) is of no moment erroneous; judgment may have been where jurisdiction exists, the court has the case power decide whether its decision right wrong. error, If there the private plain tiffs should have timely intervened under the doctrine proclaimed Moyer, supra, to this court. perfected appeal
The majority opinion entering criticizes the county attorney into stipulation facts with for Frank R. Collins in con- counsel travention of the my findings State Board of Appeals. opinion, court’s conduct is county censure attorney’s justified. officials, As the county chief to the legal advisor county attorney has a and uniform special interest the equal taxation, taxation of county subject treasurer, retention and in the of lawful taxes paid collection prompt of lawful taxes due In the exer- payable. functions, cise of its must, State Board of Tax a Appeals laws, matter necessity, interpret tax and such interpretations are prima However, facie where the has binding. county attorney cause to believe the orders of the state board are erroneous as *39 uniformity of taxation of the in lack of law or result
matter orders. he defend against in the county, properly 957; I. Jones, Pac. R. Chicago, 119 Kan. Robinson v. See 229; Comm'rs, 516, 27 2d 138 Kan. P. & Ford Co. v. Rly. P. Burke, 143 2d 53 P. Publishing Co. Beacon 489, 501, 502, Cushman, Ass’n State Teachers Kansas 2d 19. 351 P. mentioned, this grown but dissent has
Other matters could I dissent with the statement my conclude long. too issued order man- its improvidently commenced—the 31,1967. on October damus C.
Price, Kaul, J., join foregoing dissent. J., Notes Advisory ation. Committee state expressly no sub affected and in his rights stantive were Kansas Code of Civil Pro cedure, Gard states the case law Judge prior of Kansas will continue new impact 60-802, have authoritative under the code. (Sec. p. law, prior Under our required 610.) prose the name of the real interest. party (State cuted * While mandamus is now Jefferson, defined A. the name S. from "writ” 60-801), change (K. “order” traditional character of the change remedy, did and the remedy that the obtainable "under same procedure provision civil actions” S. A. (K. in other 60-802 [a]), as relief simply means