*1 495 WOLLMAN, HANSON, concur. JJ., WINANS and DOYLE, absent. J., COUNTY, al., et Plaintiffs EX REL. PENNINGTON

STATE v. al., et Defendants

MERNAUGH N.W.2d 409) (210 (File 1973) August Opinion No. 11191. filed rehearing Petition for denied October *2 D. Murphy, Boyce, Murphy, McDowell & Green- Jeremiah field, Falls, Wilson, Sioux Wilson, Olson, Gunderson & James Rapid City, O’Keefe, Terence A. Barnett, Siegel, Schütz, O’Keefe Aberdeen, & Ogborn, for plaintiffs. Fisher, Burke, Gale E. Falls, & May, Sioux for Johnson

intervenor, Northwestern Bell Telephone Co. Gerdes, Martens, Goldsmith, Warren and David A. May, Adam, Pierre, Porter & May, for balance of intervenors. Woods, Woods, Fuller, Smith, Falls, M. T. Shultz & Sioux for amicus curiae. Gen., Dewell, Asst. Atty. Atty. Gordon Mydland, John

Gen., Pierre, defendants. for WOLLMAN, Justice. an in this court based an original upon

This is proceeding named for a writ of certiorari the several plaintiffs application State and the above who contend that the Board of Revenue exceeded in the manner jurisdiction their in which the to property belonging telephone, telegraph, gas, assessedand for tax equalized electric and pipeline companies in 1972. Several of these were to companies permitted purposes in this intervene proceeding. defendants ex-

Stated contend that briefly, plaintiffs ceeded their jurisdiction equalizing real and personal assessed centrally the value of such reducing whereas full and true value for to 42.49% of real such centrally have defendants should a county-to- on county average in accordance with the of full on the basis of 60% basis and the personal property railway respect and true value as was ordered with Co., 85 Railway & Northwestern Chicago the case of Appeals 188 N.W.2d 276. assessment average The record reveals that statewide its full and true assessed real was 38.33% of locally value, County high from a low of 27.6% Custer ranging of 53% in Yankton County. *3 did defendants that contention plaintiffs’

The record supports factor to the average equalization the sales ratio county not apply in each assessed utilities to the centrally real property belonging to the factor equalization and did not the 60% apply example, For county. said utilities in each of personal property assessed locally had County the Aurora during period $51,676,399, locally and a full and true value of real of property $12,588,933, a full and true value personal property the same For or a ratio of 80% to 20% real to personal property. had Company intervenor Northwestern Bell period Telephone $3,656 $127,430 personal property worth of real property ratio or a County, based in Aurora (both upon original cost) defendants personal 3 % to 97 % real to Had property. Northwestern Bell’s in accordance with the rule laid case, down in the Northwestern Railway supra, countywide of 40.6% would have average been to Northwestern applied Bell’s real in Aurora and the 60% factor to its County applied personal property.* other could be we

Although examples think that the given, record supports plaintiffs’ contention that vast amounts of * they The which intervenors contend that much of the listed personal property actually personal property as is in the conventional they required sense as of the word but that are to list such personal property by prepared on the forms of Revenue. reported purposes proceeding accept figures For we of this must period question. the intervenors for the of time

personal belonging centrally assessed utilities were equalized by using percentage heavily weighted by lower real property equalization percentage rather than the 60 % factor applied to personal property. Plaintiffs contend that at least $38,940,287 in taxable value of property centrally assessed utilities was eliminated from the statewide assessment rolls action, defendants’ awith consequent loss of potential tax revenue to the political subdivisions and taxing districts in the $2,141,715. amount of we need Although not and do not determine whether correct, these are figures we that agree the assessment and equalization practice followed defend- ants resulted in a substantial potential loss of revenue to plaintiffs and other political subdivisions and taxing districts similarly situated.

Having thus stated the issue raised by plaintiffs, we turn to the question whether certiorari is the proper remedy this case. SDCL 21-31-1 provides that:

“A writ of certiorari be Su- may granted by the courts, courts, officers, preme circuit when inferior boards, or tribunals have exceeded their jurisdiction, nor, and there is no writ of error or in the appeal court, judgment other any plain, speedy, adequate remedy’.’

Plaintiffs’ of right if appeal, from any, the action of the Department of Revenue under the provisions of 10-1-41, SDCL 1-26, SDCL or SDCL 21-33 is more illusory than real and does not preclude the of a granting writ in this case. State v. Circuit Court of Seventh Circuit, 154, 61 S.D. 246 N.W. 638. Judicial See also State v. 572, 52 Knight, S.D. 219 N.W. 258.

The electric, taxation of heating, water and gas companies is governed by SDCL 10-35. After the assessment is made and the Department of Revenue has given utilities, notice to the SDCL 10-35-12 provides that:

“After such date of hearing, on or before the fourth of Monday August, the department of revenue shall finally equalize the assessments and each notify com-

499 mail. The of revenue shall pany by thereof department finally county the value determined to the certify county company auditor of each which which value shall be entered on the tax owns property, lists such levies extended county proper thereon, be tax so extended shall collected him the same treasurer and distributed manner as other taxes.”

SDCL 10-38-2 that: provides

“Any utility action of state feeling aggrieved days of revenue within fifteen after department may, such receiving notice from as to its assessed department value, valuation or the determination of appeal state board of equalization for determination of such * *”* grievance. In gas 1972 intervenor and electric utilities companies did not to the State Board of appeal Equalization. Thus the from a decision opportunity appeal of the State Board of was not available in this case we held it that was case of Sioux Falls v. City State Board of Equalization, 106, S.D. 203 N.W.2d 419. Appeals See also City Aberdeen, 87 S.D. 203 N.W.2d 177. the right Therefore under SDCL 10-11-42 and 10-11-43 is appeal applicable this case toas those utilities.

The State Board of Equalization equalizes the assessments of property belonging to telephone companies. SDCL 10-33-16. Rather than to fragment this proceeding by dismissing the writ as it pertains telephone company however, property, we conclude that in the circumstances of this case considerations of judicial economy warrant a disposition by certiorari as to all elements of the case.

We conclude that what was written in State ex rel. American Express Co. v. State Board of Assessment and Equalization, 53 N.W. is applicable here:

“The writ is confined to the questions touching jurisdic- courts, officers, boards, tion the subordinate or tri- In other bunals, proceedings. and of their regularity courts, officers, boards, words, or tribunals when such of the party, of the and subject-matter have jurisdiction in proceedings action will be sustained unless their their law to do neglect do some act forbidden or they law; or, as stated Judge some act required ‘when assessment is erroneous point Cooley, law, either because the assessors have some adopted it, or have they inadmissible basis in because making mandatory provisions of the of the sta- disregarded any to rely,’ on which a parties right tutes will lie to correct the proceedings.” certiorari 53 N.W. 194. We hold that the rule announced in the Northwestern case, and supra, question is Railway applicable property that the defendants should have the real equalized property to the utilities on basis in accord county-to-county ance with the assessment in each and that ratio been personal property belonging to the utilities should have at the 60% It that statutory very factor. well be may railroads, utilities well as in dissent (as powerfully argued in the Northwestern class of Railway constitute a case) separate for tax So as the defendants purposes. long equalize utilities in accordance with all other applied ratios to state, however, within must so do they with accordance rule proportionate equalization announced in the Northwestern Railway case. Revenue directing will be issued

A writ their actions aside set Roard the State and them directing equalizing forth set with the guidelines in accordance equalize in this opinion. DOYLE, JJ.,

RIEGELMEIER, WINANS J.,C. concur.

HANSON, dissents. J.,

HANSON, (dissenting). Justice *6 The writ should been issued —the remedy appeal.

Furthermore, the statutes clearly for express procedure assessing property public utilities and the factors to be taken into consideration. Their cannot be simply classified judicial fiat into “real” and “personal” property.

IN THE MATTER OF K.D.E. N.W.2d

(210 907) 1973) (File Opinion Nos. 11011. filed October rehearing Petition for denied November