| Mo. | Dec 3, 1901
This is an action at law by the collector of J ackson county to recover $1,027.22 back-taxes for the year 1899.
The answer contains two defenses: First, that the State Board of Equalization intentionally discriminated against defendant in assessing its property at its full value, while other property in the State is only assessed at from thir
The record discloses the facts to be that the State Board of Equalization, whose duty it is under the law (sec. 9387, R. S. 1899) to assess all property, real and personal, “including franchises,” of telegraph companies, made the following assessment of defendant’s property on the twenty-fifth of July, 1899:
“State of Missouri, office of State Auditor.
“Be it remembered that heretofore, to-wit, on the twenty-fifth day of July, 1899, the following among other proceedings were had by the State Board of Equalization, viz.:
“The State Board of Equalization having given to the Western Union Telegraph Company opportunity to be heard personally by the board, and having heard the said company through its officers and agents, and having carefully considered the facts set out in the returns and the statements of said company, and all evidences of value, and all matters bearing upon the question of the value of the property of said company, and considering the cost of construction and equipment of said Western Union Telegraph Company, and the location thereof, and its traffic and business, and the market and par value of its stocks and bonds, and the gross receipts and net earnings and franchise owned by said company, and the value thereof, and having received evidence concerning the value of the cost of construction of said telegraph line, and the market value and par value of the stocks and bonds, and of the gross re*512 ceipts and net earning power, and the franchise and the value thereof, and having heard evidence upon and considering all other matters ascertainable by said board bearing upon the question of the value of said company, which, in the opinion of the board, would assist in its findings, conclusions and judgment in arriving at the actual cash value of the property of said telegraph company; 'on motion the State Board of Equalization assesses and values for taxes of 1899 the property of said Western Union Telegraph Company at $1,827,-727.45; and it is further ordered by the State Board of Equalization that the assessed value thereof be distributed upon the said classes of property as follows:
6,075.98 miles of poles at $71.50 per mile. .$ 434,432.57
23,767.34 miles of wire at $22.02 per mile. 523,356.82
2,375 instruments at $5.70 each.......... 13,557.50
All other property at.................. 856,400.56
Total...........................$1,827,727.45.”'
Subject to the right of objection on any sufficient ground in law, it was stipulated between counsel, “That the taxbook should be prima facie evidence of the validity of the taxes thereon assessed for the year 1899, against defendant, without proof by plaintiff or any of the steps leading up to its execution and issuance; and that said taxbook was properly certified.”
It was also admitted: Eirst, that defendant, since 1854, has been a corporation, organized and existing under the laws of the State of New York; second, that as pleaded in the answer, it accepted the provisions of the act of Congress of July 24, 1866, and that said acceptance has not been withdrawn, and that defendant transmits telegrams for the Government between its departments and officers at rates fixed by the Postmaster-General; third, that defendant is not incorporated under the laws of the State of Missouri, and has never applied for or secured from the State a license authorizing it
Objection was made by plaintiff to the introduction of the admissions second and third, but such objection was overruled and exception taken.
A general objection was also made by plaintiff to the introduction of any evidence by defendant for the reason that the finding and assessment of the State Board of Equalization was final and not subject to attack in this suit. This objection was overruled and an exception noted.
It was shown on the part of the defendant, by the testimony of A. A. Lesueur, Secretary of State,. and as such a member of the State Board of Equalization, that the property, outside of St. Louis, is assessed by the local assessors at what he believes to be about thirty-five to forty per cent of its full value, and in St. Louis at about fifty per cent thereof, although the city assessor and city board of equalization thought it. was seventy per cent thereof.
It was also shown by the testimony of Edward C. Crow, Attorney-General, and as such a member of the State Board of Equalization, that the item of assessment, “All other property at $856,400.36,” was intended to include all the taxable property of the defendant other than that specifically mentioned in the three other items, and also its intangible property, including franchises, but as to how much the franchise value or intangible property was valued at and how much the tangible property other than that specifically enumerated included under the head of “all other property” was valued at, he “could not say.”
The Attorney-General then further testified:
“Q. What do you understand by the meaning of the word ‘franchise/ as used by you in your direct examination ? A. Well, the same sense in which I use it might not be agreed to by lawyers or laymen, without qualification, but I used it in the same sense of representing the class of property owned*514 by the Western Union Telegraph Company and controlled by it, such as privileges and rights to erect and maintain their poles and wires, to carry on their traffic in the different portions of the State of Missouri in connection with their rights to so erect, their poles and wires, and carry on their-traffic wherever else their lines extend in this, country and other countries, representing a unity of use in the entire corporate property, making the same thereby much more valuable- than it otherwise would be for use separately and independently in each territory or country.
“Q. And therefore the privilege tó be or to exist does not enter into your idea at all in the matter of values as you have explained by way of franchise? A. Oh, no, as I understand it the Western Union corporation acquires their right to exist as a corporation from an act of the Federal Congress; ■they have this, however, which I did not consider, and that is the right to use the posts of the Federal Government. I did not consider that as an element in fixing the franchise value of property in the use of my term of the word 'franchise,’ although it might properly be considered, as the courts have held in a Massachusetts case, but I did not have that in mind when I used the word 'franchise.’ ”
It was ffirther shown by the testimony of Theodore P. Cook, superintendent of the defendant, that all the property owned by the defendant on June 1, 1898, in Missouri, outside of St. Louis, Kansas City and St. Joseph, other than that specifically enumerated, would not exceed $1,000, and that it- has paid the taxes on the property located in the three cities and subject to local assessment there. Mr. Cook further testified that the defendant’s whole system and plant in Missouri could be replaced absolutely new for $984,357.89, and that its present system or plant was not worth over thirty-five per cent of that amount. He further said that he had made a return to the State Board of Equalization showing that defend
The trial court found and decided that the term “all other property” embraced franchises derived from the Federal Government, which were non-taxable by. reason of such derivation, and that the defendant is a governmental agent and instrument of interstate commerce, exercising its rights in Missouri solely by virtue of such Federal authority, and so held that the tax based upon the assessment of “all other property at $856,400.56,” was void, but, “that the assessment and valuation made by the State Board of Equalization upon the poles, wires and instruments, owned by the defendant in this State, is final and conclusive, and' is not subject to review or attach in this suit.”
Both parties appealed.
I.
The defendant contends that it has been discriminated against, contrary to the provisions of section 4 of article 10 of the Constitution of Missouri, and of the fourteenth amendment to the Constitution of the United States: in this, that the Constitution of Missouri relied on, provides that, “all property subject to taxation shall be taxed in proportion to its value,” and the fourteenth amendment to the Constitution of the United States prohibits any State to deny any person within its jurisdiction the equal protection of the laws, and that the State Board of Equalization has assessed defendant’s property at its full value, while the local assessors throughout the State have only assessed the property of other persons at from thirty-five to forty per cent of its value.
In support of its contention the defendant cites a great number of cases, among them, Cummings v. National Bank, 101 U.S. 153" court="SCOTUS" date_filed="1880-03-18" href="https://app.midpage.ai/document/cummings-v-national-bank-90105?utm_source=webapp" opinion_id="90105">101 U. S. 153; Railroad v. Taylor, 86 F. 168" court="None" date_filed="1898-03-15" href="https://app.midpage.ai/document/nashville-c--st-l-ry-v-taylor-9307926?utm_source=webapp" opinion_id="9307926">86 Fed. 168; National Bank v. Kimball, 103 U.S. 732" court="SCOTUS" date_filed="1881-03-30" href="https://app.midpage.ai/document/national-bank-v-kimball-90393?utm_source=webapp" opinion_id="90393">103 U. S. 732; Pelton v. National Bank, 101 U.S. 143" court="SCOTUS" date_filed="1880-03-18" href="https://app.midpage.ai/document/pelton-v-national-bank-90103?utm_source=webapp" opinion_id="90103">101 U. S. 143; Balfour v. City of Portland, 28 F. 738" court="U.S. Cir. Ct." date_filed="1886-09-20" href="https://app.midpage.ai/document/balfour-v-city-of-portland-8125577?utm_source=webapp" opinion_id="8125577">28 Fed. 738;
Thé principle here contended for is tersely expressed by Mr. Justice Miller in the case of National Bank v. Kimball, 103 U.S. 732" court="SCOTUS" date_filed="1881-03-30" href="https://app.midpage.ai/document/national-bank-v-kimball-90393?utm_source=webapp" opinion_id="90393">103 U. S. 732, as follows: “It is held in these opinions that when the inequality of valuation is the result of a statute of the State designed to discriminate injuriously against any class of persons or any species 'of property, a court of equity will give appropriate relief; and also where, though the law itself is unobjectionable, the officers who are appointed to make assessments combine together and establish a rule or principle of valuation, the necessary result of which is to tax one species of property higher than others, and higher than the average rate, the court will also give relief. But the bill before us alleges no such agreement or common action of assessors, and no general rule or discriminating rate adopted by a single assessor, but relies on numerous instances of partial and unequal valuations which establish no rule on the subject.”
The defendant has not brought itself within the rule announced in those cases, for it has shown no combination among assessors and no* course of conduct among them to discriminate against the defendant or other telegraph companies and other property owned by citizens generally. It has only shown by the testimony of one member of the State Board of Equalization that in his judgment the valuation put upon property generally is only thirty-five or forty per cent of its true value. The law contemplates that for purposes of taxation property shall be assessed at its true value in money (R. S. 1899, sec. 9180), and it also presumes that all officers do their duty. [Agan v. Shannon, 103 Mo. 661" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/agan-v-shannon-8010034?utm_source=webapp" opinion_id="8010034">103 Mo. 661; State ex rel. v. Bank, 120 Mo. 161" court="Mo." date_filed="1894-02-13" href="https://app.midpage.ai/document/state-ex-rel-gracy-v-bank-of-neosho-8011214?utm_source=webapp" opinion_id="8011214">120 Mo. 161; Mathias v. O’Neill, 94 Mo. 520" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/mathias-v-oneill-8009228?utm_source=webapp" opinion_id="8009228">94 Mo. 520.] The evidence adduced is not sufficient to overthrow this presumption, nor to establish a combination or unlawful course of conduct. It is only enough to show what the witness believed to he the
But aside from this the cases relied on also establish another rule, which is voiced by Mr. Justice Field, in Stanley v. Supervisors, 121 U.S. 535" court="SCOTUS" date_filed="1887-05-02" href="https://app.midpage.ai/document/stanley-v-supervisors-of-albany-91946?utm_source=webapp" opinion_id="91946">121 U. S. 535, that when the statutes of a State provide a board for the correction of errors and irregularities of assessors in the assessment of property for the purpose of taxation, the official action of that body is judicial in character and its judgments are not open to attacks collaterally, but, “When the overvaluation of property has arisen from the adoption of a rule of appraisement which conflicts with a constitutional or statutory direction, and operates unequally not merely on a single individual but on a large class of individuals or corporations, a party aggrieved may resort to a court of equity to restrain the exaction of the excess, upon payment or tender of what is admitted to he due.” To the same effect are Cummings v. National Bank, 101 U.S. 153" court="SCOTUS" date_filed="1880-03-18" href="https://app.midpage.ai/document/cummings-v-national-bank-90105?utm_source=webapp" opinion_id="90105">101 U. S. 153; Balfour v. City of Portland, 28 F. 738" court="U.S. Cir. Ct." date_filed="1886-09-20" href="https://app.midpage.ai/document/balfour-v-city-of-portland-8125577?utm_source=webapp" opinion_id="8125577">28 Fed. 738; Pelton v. National Bank, 101 U.S. 143" court="SCOTUS" date_filed="1880-03-18" href="https://app.midpage.ai/document/pelton-v-national-bank-90103?utm_source=webapp" opinion_id="90103">101 U. S. 143; Trustees of Railroad v. Guenther, 19 F. 395" court="U.S. Cir. Ct." date_filed="1884-02-18" href="https://app.midpage.ai/document/trustees-of-the-cincinnati-southern-railway-v-guenther-8123965?utm_source=webapp" opinion_id="8123965">19 Fed. 395; Railroad v. Board, 67 F. 411" court="8th Cir." date_filed="1895-04-22" href="https://app.midpage.ai/document/chicago-b--q-r-v-board-of-comrs-of-republic-county-8852431?utm_source=webapp" opinion_id="8852431">67 Fed. 411.
The defendant can not avail itself of these cases, for the reasons, first, that it seeks to raise the question of discrimination by a defense to an action at law to collect the taxes, and thereby collaterally attacks the judgment of the board of equalization; second, that such questions can only be raised by a direct attack, in equity, and then only upon the condition precedent that it pays or tenders the amount justly due and only asks to have the collection of the excess restrained. This the defendant has not done in this case. It simply alleges a discrimination or excessive tax, and then seeks to defeat the whole assessment without paying or tendering anything, notwithstanding it admits by its answer and its proofs that it has property in this State subject to taxation of tire value of $541,-472.40. Upon the authority of the eases relied on by it, this can not be done. It results that defendant’s appeal is with
II.
The trial court held that the item “all other property at $856,400.56,” included franchises which were derived from the Federal Government and were non-taxable by reason of such derivation, and that the defendant is a governmental agent and an instrument of interstate commerce exercising its right in Missouri solely by virtue of such Federal authority, and hence held that portion of the tax sought to be recovered which was based upon this item could not be legally charged on defendant. From this the plaintiff appealed.
The defendant is a corporation organized under the laws of tile State of New York. It has never received any authority or right or permission from tire State of Missouri to do business in this State or to erect its poles or string its wires on, over or upon the public highways and places in this State. Ever since 1865 (R. S. 1865, ch. 65, p. 849, sec. 5) there has been a statute in this State authorizing any telegraph company organized under the laws of this State, to place its poles and wires along, over and upon the public highways. But there is not now and never has been any law of this State granting any such franchise or permission to any foreign telegraph company. The defendant’s sole right to do.business in Missouri arises out of the act of Congress approved July 14, 1866. [U. S. Stats. at Large, 1865-67, pp. 221-22.]
Briefly stated, that act gives the defendant the right to maintain its system of telegraph along the military and post roads of the United States, and over, under, and across all navigable streams of the United States, and requires the defendant to transmit and give priority to messages of the Government between its various departments, officers and agents,
But while this act has been held to be a legitimate regulation of commerce between the States and to constitute the defendant, as to Government business a Government agency, and an instrument of interstate commerce (Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1" court="SCOTUS" date_filed="1878-03-25" href="https://app.midpage.ai/document/pensacola-telegraph-co-v-western-union-telegraph-co-89664?utm_source=webapp" opinion_id="89664">96 U. S. 1; Telegraph Co. v. Texas, 105 U.S. 460" court="SCOTUS" date_filed="1882-04-18" href="https://app.midpage.ai/document/telegraph-co-v-texas-90600?utm_source=webapp" opinion_id="90600">105 U. S. 460); nevertheless, it is equally as well' established that: “The property of a telegraph company within a State is subject to State taxation like all other property. The fact that the company is engaged in interstate commerce, or that it is an agent of the Government, can afford no immunity from the taxation of its property.” [25 Am. and Eng. Ency. of Law (1 Ed.), p. 873, and cases cited; Telegraph Co. v. Texas, 105 U. S. 464; Western Union Tel. Co. v. Taggart, 163 U.S. 1" court="SCOTUS" date_filed="1896-05-18" href="https://app.midpage.ai/document/western-union-telegraph-co-v-taggart-94459?utm_source=webapp" opinion_id="94459">163 U. S. 1; Western Union Tel. Co. v. Mass., 125 U.S. 530" court="SCOTUS" date_filed="1888-03-19" href="https://app.midpage.ai/document/wu-tel-co-v-massachusetts-92205?utm_source=webapp" opinion_id="92205">125 U. S. 530, and 141 U.S. 40" court="SCOTUS" date_filed="1891-05-11" href="https://app.midpage.ai/document/massachusetts-v-western-union-telegraph-co-93126?utm_source=webapp" opinion_id="93126">141 U. S. 40.]
The plaintiff relies, principally, upon the cases of Western Union Telegraph Co. v. Massachusetts, 125 U.S. 530" court="SCOTUS" date_filed="1888-03-19" href="https://app.midpage.ai/document/wu-tel-co-v-massachusetts-92205?utm_source=webapp" opinion_id="92205">125 U. S. 530, and the same v. same, 141 U.S. 40" court="SCOTUS" date_filed="1891-05-11" href="https://app.midpage.ai/document/massachusetts-v-western-union-telegraph-co-93126?utm_source=webapp" opinion_id="93126">141 U. S. 40. The syllabi in those cases express clearly the points decided. In the first case (125 U.S. 530" court="SCOTUS" date_filed="1888-03-19" href="https://app.midpage.ai/document/wu-tel-co-v-massachusetts-92205?utm_source=webapp" opinion_id="92205">125 U. S. 530) the syllabus is as follows:
“The privilege conferred upon telegraph companies by Bevised Statutes, section 5263, carries with it no exemption from the ordinary burdens of taxation in a State within which they may own or operate lines of telegraph.
“The laws of Massachusetts impose a tax upon the Western Union Telegraph Company on account of the property owned and used by it within that State, the value of which is to be ascertained by comparing the length of its lines in that State with the length of its entire lines; and such a tax is essentially an excise tax, and is not forbidden by the fact*520 of the acceptance on the part o'f the company of the rights conferred on telegraph companies by Revised Statutes, section 52G3, nor by the commerce clause of the Constitution.
“The principles established by the statutes of Massachusetts for regulating the taxation of corporations doing business within its limits, whether domestic or foreign, do not appear to be unfair or unjust.
“A State statute which authorizes an injunction to be issued to restrain a corporation organized under the laws of another State, whose taxes are in arrear, from prosecuting its business within the State until the taxes are paid, is void so far as it assumes to confer power upon a court to so restrain a telegraph company which has accepted the provisions of Revised Statutes, section 5263, from operating its lines over military and post roads of the United States.”
In the second case (141 U.S. 40" court="SCOTUS" date_filed="1891-05-11" href="https://app.midpage.ai/document/massachusetts-v-western-union-telegraph-co-93126?utm_source=webapp" opinion_id="93126">141 U. S. 40) the syllabus is as follows:
“The tax imposed by the statutes of Massachusetts (Pub. Stat., c. 13, secs. 40, 42) requiring every telegraph company owning a line of telegraph within the State to pay to the State Treasurer ‘a tax upon its corporate franchise at a valuation thereof equal to the aggregate value of the shares in its capital stock,’ deducting such portion of that valuation as is proportional to the length of its lines without the State, and deducting also an amount equal to the value of its real estate and machinery subject to local taxation within the State, is in effect a tax upon the corporation on account of property owned and used by it within the State; and is constitutional and valid, as applied to a telegraph company incorporated by another State, and which has accepted the rights conferred by Congress by section 5263 of the Revised Statutes.”
It will thus be observed that in the first case it was held proper to tax the tangible property of the company in that State, and that “the value of which is to be ascertained by comparing the length of its lines in that State with the length
It was argued in the last case cited that such a tax was a tax upon its right or franchise derived from the act of Congress and hence was a tax on its franchise and not on its property. But the Supreme Court of the United States held that such a method of taxation was not a tax on its franchise, but was only a method to ascertain the value of the tangible property located in the State of Massachusetts.
Mr. Justice Gbay, delivering the opinion of the court, said:
“But this court, in answering that argument and upholding the validity of the tax, affirmed tire following propositions:
“The franchise of the company to be a corporation, and to carry on the business of telegraphing, was derived not from the act of Congress, but from the laws of the State of New York, under which it was organized; and it never could have been intended by the Congress of the United States, in conferring upon a corporation of one State the authority to enter the territory of any other State, and to erect its poles and lines therein, to establish the proposition that such a company owed no obedience to the laws of the State into which it thus entered, and was under no_ obligation to pay its fair proportion of the taxes necessary to the support of the government of that State. [125 U. S. 547, 548.]
“By whatever name the tax may be called,, as described in the laws of Massachusetts, it is essentially an excise upon the capital of the corporation;' and those laws attempt to ascer*522 tain the just amount which any corporation engaged in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein. [125 U. S. 547.]
“The tax, though nominally upon the shares of the capital stock of the company, is in effect a tax upon that organization on account of property owned and used by it in the State of Massachusetts; and the proportion of the length of its lines in that State to their entire length throughout the whole country is made the basis for ascertaining the value of that property. Such a tax is not forbidden by the acceptance on the part of the telegraph company of -the rights conferred by section 5263 of the Revised Statutes, or by the commerce clause of the Constitution. [125 U. S. 552.]
“The statute of Massachusetts is intended to govern the taxation of all corporations doing business within its territory, whether organized under its own laws or under those of some other State; and the rule adopted to ascertain the amount of the value of the capital engaged in that business within its boundaries, on which the tax should be assessed, is not an unfair 'or unjust one; and the details of the method by which this was determined have not exceeded the fair range of legislature discretion. [125 U. S. 553.]
“That decision was cited by the court in Ratterman v. Western Union Telegraph Co., 127 U.S. 411" court="SCOTUS" date_filed="1888-05-14" href="https://app.midpage.ai/document/ratterman-v-western-union-telegraph-co-92269?utm_source=webapp" opinion_id="92269">127 U. S. 411, 426, 427, and in Leloup v. Mobile, 127 U.S. 640" court="SCOTUS" date_filed="1888-05-14" href="https://app.midpage.ai/document/leloup-v-port-of-mobile-92291?utm_source=webapp" opinion_id="92291">127 U. S. 640, 649.”
The rules established by the adjudications may be stated to be: First, that the Western Union Telegraph Company is, as between governmental departments, a governmental agency, but is not so as between the company and a State or a citizen; second, that the telegraph company is an instrument of interstate commerce, and-has a right to enter a State and transact business; third, that the telegraph company being an instrument of interstate commerce and deriving its powers in this regard from the United States, no State has a right to- pre
In the case at bar the board of equalization first ascertained the number of miles of poles and wires and the number of instruments owned by the defendant, and used in this State, and placed a valuation upon them. The board then considered “all other property” owned by the defendant located in this State and put a valuation upon that. The defendant’s evidence shows that it did own other property in this State besides the poles, wire and instruments specially enumerated and valued. But it contends that such other property was worth only one thousand dollars and not $856,400.56, as the board found it to be worth. The utmost that could therefore be said of this item is that the defendant and the board differed in opinion as to the value of such other property, and this being an action at law wherein the defendant attempts to defeat the whole levy, as long as it appears that the defendant' owned some property and the only question is whether it was of the one value or tire other, the defense must fail, for a court of law has no machinery for determining how much such prop
But aside from this, such a defense is not available to the defendant in a suit upon the taxbill in a court of law, but “a party aggrieved may resort to a court of 'equity to restrain the exaction of the excess, upon the payment or tender of what is admitted to be due.” [Stanley v. Supervisors, 121 U.S. 535" court="SCOTUS" date_filed="1887-05-02" href="https://app.midpage.ai/document/stanley-v-supervisors-of-albany-91946?utm_source=webapp" opinion_id="91946">121 U. S. 535.] This the defendant has wholly failed to do. It admits it owns some property that is subject to taxation other than that specifically enumerated, and- it has not sought the aid of a court of equity to relieve it against the claimed excessive tax, nor has it paid or offered to pay the tax upon the other property it admits it owes, even upon its own basis of valuation thereof. So that even if this was an appropriate proceeding in equity, the defendant has not brought itself within the rule entitling it to relief as laid down by the Supreme Court of the United States.
The defendant, however, contends, and the trial court found, that “all other property at $856,400.56,” included franchises which were derived from the Federal Government and were non-taxable by reason of such derivation, and that the defendant is a governmental agent and an instrument of interstate commerce, exercising its rights in Missouri solely by virtue of such Federal authority, and hence that court held that the portion of the tax based upon this item of assessment could not be recovered.
The trial court was right in holding that the defendant is a governmental agent, but this only extended to its relations between the Government and its agent. The trial court was
So that, when, in determining the value of the property of the defendant in this State, the board of equalization took into consideration “the cost of construction and equipment of said Western Union Telegraph Company, and the location thereof, and its traffic and business, and the par value of its stock and bonds, and the gross receipts and net earnings and franchises owned by said company, and the value thereof,” it did not and could not have included therein any franchise derived by the defendant from the Government of the United States, because that Government had conferred no such franchise; nor was such a valuation placed upon “all other property,” a, tax upon the franchise of the defendant company. The franchise derived by the defendant from the State of New York was considered by the board in determining the value of the property of the
It will not do to say, as the defendant does, that the poles, wire and instruments could be replaced new at a cost of $984,357.89, and that all its other property in this State