Nashville, C. & St. L. Ry. v. Browning

Mr. Justice DeHaven delivered the opinion of the Court. The Nashville, Chattanooga & St. Louis Railway filed a petition for certiorari and supersedeas in the Circuit Court of Davidson County to review the action of the State Board of Equalization in fixing the value of petitioner’s property for taxation. The trial judge dismissed the petition and an appeal has been taken to this court. The Railroad and Public Utilities Commission is directed by statute (Code, sec. 1508) to assess for taxation, for State, county and municipal purposes, all of the property of every description, tangible and intangible, within the State, belonging to railroad companies and other named public utilities. It is provided that the Commission shall assess all of such property biennially, in even years, at its actual cash value as of the same date the properties of other persons are by law assessed. The *250 owners of property assessable under the statute are required by Code, sec. 1509, to file with the Commission sworn schedules and statements of certain information. Section 1526 of the Code is as follows: “Upon examination of every such schedule and statement and all other evidence taken by them, the said commission shall proceed to ascertain and determine the value of said property within the state for taxation and assess the same accordingly, taking’ into consideration the capital stock, corporate property, franchises, and gross receipts, the market value of the shares of stock and bonded indebtedness, and such other evidence as is afforded by said statements and schedules or other evidence taken to enable them to fairly and equitably fils the actual cash value of the properties of such persons.” The railway filed its return with the Commission, and after considering* the same, together with other evidence, the Board fixed the cash value of the railway’s property in Tennessee, for taxation, at $16',223,199, for the biennium 1938-39. The railway filed numerous exceptions to the assessment, which were denied after a full hearing, and the railway prayed and was granted an appeal to the State Board of Equalization. The statute (Code, sec. 1533) provides that the Commission shall file with the Board the assessments made by them, together with such records as may be deemed necessary. Section 1534 provides that the Board shall proceed to examine the assessments so made, and are authorized to increase or diminish the valuation placed upon any property valued by the Commission, and are further authorized to request of the Commission additional evidence touching the property assessed; that if the Board so desire, they have the power, without referring any assessment to the Commission, themselves to employ experts, accountants, *251 and to call witnesses to testify upon any assessment certified to them by the Commission, and to call upon the Interstate Commerce Commission for any valuation of property in the office of such Commission; that the assessments shall not be deemed complete until corrected and approved by the Board. Under Code, Section 1535, the Board is required to certify to the Commission the valuation fixed by them upon each property assessed, and the action of the Board “in fixing tbe valuation upon such property shall be conclusive and final and the valuation so fixed shall be assessed against said property and the taxes due thereunder be paid. ’ ’ The Board reviewed the assessment of the railway’s property and approved the same. Before the Board certified back to the Commission the amount of the assessment, as approved, the railway filed its petition for writs of certiorari and supersedeas in the Circuit Court of Davidson County. The circuit judge, upon motion of the Board, taking into consideration the entire record as certified to the circuit court by the Board, dismissed the petition and discharg’ed the supersedeas. From this action of the circuit judge, the railway has appealed to this court and made numerous assignments of error. The railway in the presentation of its case has not followed seriatim the assignments of error. As a matter of convenience we will follow the same course. The railway complains, in the argument contained in its brief, that “The assessment is not supported by any evidence; is grossly in excess of the value of the property as established by the evidence; was made by methods not calculated to produce a fair and just result and therefore arbitrary and illegal; and was made in violation of the provisions of the statutes controlling the assessment of railroad property.” *252 The assessment made by the Board is made final and conclusive by statute (Code, sec. 1535) and is not open to review by tbe courts on certiorari, where the Board has not, with reference to the assessment, exceeded its jurisdiction or acted illegally or fraudulently. Tomlinson v. Board of Equalization, 88 Tenn., 1, 12 S. W., 414, 6 L. R. A., 207; Anderson v. Memphis, 167 Tenn., 648, 72 S. W. (2d), 1059; Treadwell Realty Co. v. City of Memphis, 173 Tenn., 168, 116 S. W. (2d), 997. In Savage Co. v. City of Knoxville, 167 Tenn., 642, 72 S. W. (2d), 1057, it was held that value placed on property for taxation by duly constituted taxing authorities is not reviewable by the court, nothing else appearing, since value is a matter of opinion. In Mossy Creek Bank v. Jefferson County, 153 Tenn., 332, 284 S. W., 64, it was held that mere error in honest judgment of a county board of equalization as to value of property will not obviate binding effort of conclusion, in absense of fraud. The rule announced by the above cases is no longer open to. doubt or discussion. Where, however, the Board acts illegally, fraudulently or in excess of its jurisdiction, certiorari is the proper remedy. State ex rel. v. Dixie Portland Cement Co., 151 Tenn., 53, 58, 267 S. W., 595; Louisville & N. Railroad Co. v. Bate, 80 Tenn. (12 Lea), 573. The provision of the statute that the valuation made by the Board “shall be conclusive and final” presupposes a substantial compliance with the proceedings prescribed with reference to the method of making valuation of railroad property. The Commission, as affirmatively appears from the itemized assessment made by them, considered all of the elements specified in the statutes (Code, sec. 1526¡). The Commission had before it the return of the railway and other evidence submitted and fixed the value of the *253 railway’s property in the sum above stated. No witness, or document in evidence, fixed the exact value as reported by the Commission; but from the facts developed, the Commission held itself able to fairly and equitably, fix the actual cash value of the property. No intentional discrimination or fraud on the part of the Commission or Board is charged or proven. In Rowley v. Chicago & N. W. R. Co., 293 U. S., 102, 55 S. Ct., 55, 59, 79 L. Ed., 222, the court said: “There is nothing in this record to suggest any lack of good faith on the part of the board. Overvaluation resulting from error of judgment will not support a claim of discrimination. There must be something that amounts to an intention, or the equivalent of fraudulent purpose, to disregard the fundamental principle of uniformity.” In Chicago Great Western R. Co. v. Kendall, 266 U. S., 94, 45 S. Ct., 55, 57, 69 L. Ed., 183, 189, the court said: “It is not enough, in these cases, that the taxing officials have merely made a mistake. It is not enough that the court, if its judgment were properly invoked, would reach a different conclusion as to the taxes imposed. There must be clear and affirmative showing that the difference is an intentional discrimination, and one adopted as a practice.” The rule announced in the above cases is generally recognized and needs no additional citation of authority in its support. The good faith of the Commission and Board and the validity of their action are presumed; when assailed, the burden of proof is upon the complaining party. Sunday Lake Iron Co. v. Wakefield Township, 247 U. S., 350, 38 S. Ct., 495, 62 L. Ed., 1154. It is contended for the railway that the Commission and Board should have made the assessment on the basis *254 of capitalization of net income at a .rate which, would measure a fair return to the investor in the property, or, at least, that such method should have been made the predominant factor in arriving at the value of the property. Capitalization of net income is not specified in Section 1526 of the Code; but this factor could have been considered along with other elements in fixing the value of the property. Incorporated in the assessment made by the Commission under the caption “Earnings” is a tabulated statement of net operating income for the years 1933-1938. A statement filed by the railway showed net operating revenue for the years 1931-1937 averaged $947,530.60 per annum, and that the net revenue from nonoperating property for the seven-year period averaged $13¡,747.28, making a total average net operating revenue of $961,277.88. The insistence is that if this average net revenue be capitalized at 6%, a value of $16,021,298 is shown for the entire system as compared with the $23,996',604.14 fixed in the assessment. The statement of average income was considered by the Commission, as is shown by the following statement of one of the Commissioners made on the argument before them, “. . . to see what the trend was, whether the trend was upward or downward with the company, as justification for reducing or raising the assessment, so that was largely the purpose of having’ that in the brief, was what I thought.” Greater weight was given to the most recent figures “to judge present day conditions.” We are unable to agree that the Commission, or the Board, was under any legal compulsion to make the assessment on the basis of capitalization of net income, or to make net income a predominant factor in arriving at the value of the property. A railroad is to be assessed according to its value as a railway by taking into con *255 sideration tire elements specified in Code, section 1526, which inclndes “ other evidence taken to enable them to fairly and equitably fix the actual cash value of the properties.” Counsel for the railway refers to Louisville & N. Railroad Co. v. State, 55 Term. (8 Heisk.), 663, 798, as approving decisions holding that ‘ ‘ a tax can only be just and equal on railroad corporations, by being assessed upon the profits.” The court did not approve this as an exclusive method of ascertaining value; on the contrary, the court said, “We can conceive of no better criterion by which its value can be ascertained, than, first, the value of its structure, superstructure and properties, and then the profits which may enure to its owners in its operation. ’ ’ The court further stated, “A tax on a corporation may be proportioned to the income — revenue, as well as to the value of franchise granted, or the property assessed,” citing Minot, Jr., v. Railroad Co., 18 Wall., 206, 21 L. Ed., 888. Louisville & N. Railroad Co. v. State, supra, was decided prior to the enactment of the first railroad assessment law in 1875. In Great Northern Ry. Co. v. Okanogan County, D. C., 223 F., 198, 201, it is said: “The value of a completed railroad is not easy of ascertainment. Railroads are not usually bought and sold on the open market. Their value is in use, rather than in exchange, and many elements go to make up that value. The cost of construction or reproducing, the income, the earning capacity, the value of stock and bonds, have all been taken into consideration by the courts. None of these elements are controlling, however. ’ ’ A like statement to the above is to be found in 26 R. C. L., 189. It is complained by the railway that the apportionment of distributable property to Tennessee on *256 mileage basis is invalid. The Commission found the railway’s distributable property in Tennessee to be the average value per mile of the system distributable property multiplied by the number of miles of main track in Tennessee. On the basis of a total mileage in the system of 1,115.34, of which 800.02 miles is in Tennessee, and the total entire value of distributable property to be $18,022,-138.14, the Commission assigned to Tennessee for taxation a value of $12,926',944. It is contended by the railway that this method of allocation is contrary to statute (Code, section 1526), and has the effect of imparting into Tennes-nessee for taxation values located in other states, contrary to Article 1, section 8, and Article 2, section 28, of the Constitution of Tennessee, and the due process clause of the Fourteenth Amendment to the Constitution of the United States. It is further contended that the value of the entire property ($23,996,604.14) “is in substantial excess of any reasonable opinion or estimate of value supported by or deducible from any evidence upon which such assessment was made, and which finding of value is not supported by or based upon any evidence in the record upon which the assessment was made, all of the evidence showing that the actual value is not in excess of $16,021,-298. ’ ’ This is a renewal of the contention that the value of the property should have been fixed on the basis of capitalization of net revenue of the system, and not upon the basis adopted by the Commission. In Louisville & N. Railroad Co. v. State, supra, 55 Tenn., at page 797, the court said, “If it be an interstate railroad, as in this case — a part in this State and a part in another — we know of no better plan to fix the taxable value of that portion lying in this State, than to ascertain what proportion the latter bears to the whole. Upon this *257 subject, however, there is great conflict of authority, and great contrariety of judicial reasoning and ruling.” In Franklin County v. Railroad, 80 Tenn. (12 Lea), 521, 540, the court said: “No part of the mere roadway can he said to be more valuable than any other part, when considered as a track for the exercise of the franchises of the company as a common carrier. It is, like the franchise itself, a unit for the purposes intended, these purposes being not merely the use of the road for the profit of the company, but its use for the benefit of the public. Any interruption of that use is a public as well as a private calamity. ‘It may well be doubted,’ says the Supreme Court of the United States, ‘whether any better mode of determining the value of that portion of the track within any one county has been devised than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole’: State Railroad Tax Cases, 92 U. S., [575], 608 [23 L. Ed., 663].” In Pittsburg, C. C. & St. L. R. Co. v. Backus, 154 U. S., 421, 14 S. Ct., 1114, 38 L. Ed., 1031, the court quoted with approval the above paragraph taken from Franklin County v. Railroad and held, that the value of one part of a single continuous line of railroad is fairly estimated by taking the part of the value of the entire road which is measured by the proportion of the length of the particular part to that of the whole road, unless accompanied with proof that portions of the road outside of the State were of largely greater value than any similar length of road within the State. In Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U. S., 439, 14 S. Ct., 1122, 38 L. Ed., 1041, it was held that in assessing a part of a railroad within a State, the other part of which is in an adjoining State, when the assessing .board ascertains the value of the *258 whole line as a single property, and then determines the value of that within the State, upon the mileage basis, that is not a valuation of property outside the State, if no special circumstances exist to distinguish the conditions in the two States, such as terminal facilities of enormous value in one and not in another. The record in the instant case does not disclose that the portions of the railroad outside Tennessee are largely of greater value than the portion within the State, or that any special circumstances exist to show a greater value outside the State than within the State. The railway contends, however, that by breaking down the whole net revenue so as to show the portion thereof earned within the State as compared to that earned out of the State a greater value is shown to exist out of the State. The railroad was valued as a whole by the Commission. All of the elements set forth in Code, section 1526, were considered. Under the well-established rule for assessment on a mileage basis, no exceptional facts appearing, the portion of the railroad in Tennessee could not be treated as an independent line, disconnected from the part without the State. Furthermore, the exception to the rule contemplates, we think, that it be clearly shown that the portion of the road out of the State has a greater value than the part within the State, such as terminal facilities or other improvements not found within the State. Our conclusion on the question of allocation is that the assessment did not violate any of the railway’s rights under the State Constitution, nor under the Fourteenth Amendment to the Federal Constitution. Another complaint made by the railway is that the Commission and Board assessed its property at actual value, while the property of all other taxpayers was assessed at two-thirds of its actual value. A large number *259 of affidavits made by local assessors were filed with the Commission to the general effect that affiants intentionally and systematically assessed other property for taxation at an amount not exceeding 75% of its value. Affidavits from others to like effect were also filed. County assessors are required by law to assess property at its actual cash value (Code, section 1349). And they take an oath of office that they will assess all property at its actual cash value (Code, section 1343). They must make oath to the assessment lists, which contains the statement that they have assessed all property at its actual cash value (Code, section 1375). The assessment lists are returned to the county court clerk. The assessments as made by the county assessors are not final. On the -contrary, the assessment lists are required to be delivered by the county court clerk to the county board of equalizers (Code, section 1424). Under Code, section 1426, the duties and powers of the board are defined. It is made their duty “to carefully examine, compare, and equalize the county assessments.” It is further provided therein that, “Said board shall have the power, and it is hereby made its duty, to increase or lower the entire assessment roll or any assessment contained therein, so as to equalize the assessment of all property contained therein, and make such assessment conform to the actual cash value of the property described in the assessment. If the property described in said assessment lists or any part thereof shall have been assessed at less than the actual cash value thereof, the value of the same shall be increased so as to conform to the actual cash value thereof . . .” (Italics ours.) Under Code, section 1434, the county board upon returning the assessment roll to the clerk are required to append to the same a verification, signed by each member, *260 that they have equalized and fixed the value of all property at the actual cash value thereof. Tinder Code, section 1140, it is made unlawful for hoard to equalize at less than actual cash value. It is made the duty of the county hoard of equalizers to transmit to the State Board of Equalization a summary of the assessment as completed by it. The State Board of Equalization is directed to meet at places throughout the State, selected by them. (Code, section 1448.) And it is provided in section 1456, that the Board “shall have jurisdiction of, and it shall he its duty, to equalize during its session the assessments of all properties in the state” and its action “shall be final and conclusive as to all matters passed upon . . . subject to judicial review.” (Italics ours.) If the county assessors and the few members of county boards of equalizers making affidavits on the hearing before the Commission assessed property at less than actual value, and did so intentionally and systematically, there is no showing whatever that the members of the State Board of Equalization violated their oath of office by underassessing property. In the absence of a contrary showing, it must be assumed that the State Board did their duty. There is neither allegation nor proof that the State Board intentionally and systematically refused to equalize assessments at actual value. The good faith of such officers and the validity of their actions are presumed. Sunday Lake Iron Co. v. Wakefield Township, 247 U. S., 350, 38 S. Ct., 495, 62 L. Ed., 1154. In order to support a claim of discrimination under the equal protection clause of the Fourteenth Amendment there must he something that amounts to an intention or the equivalent of fraudulent purpose to disregard the fundamental principle of uniformity. *261 Another complaint made by the railway is that the Commission and Board included in the assessment interest hearing securities and corporate stocks to the value of $2,484,000, not subject to taxation. The assessment shows on its face that the value of the railroad was fixed, “making- due allowance for all non-taxable securities held. ’ ’ The securities were considered by the Commission merely as reflecting- on the present financial condition of the railway. It is complained that the Commission included 3.65 miles of railroad, known as the “West Nashville Branch,” as main track mileage in computing the value of the railway’s distributable property. It is asserted that all of the evidence shows this line to be side tracks. The railway’s own return shows this 3.65 miles to be main track. From our examination of the record we are satisfied that the assessment made on the property of the railway was fair and equitable. There is nothing to support the contention that the assessment was discriminatory or arbitrary. The record shows (Ex. 19) that the property of the railway, in Tennessee, was valued for taxation in former and 1938-1939 years as follows: “1923-1924 $24,000,000 1925-1926 24,795,303 1927-1928 24,795,303 1929-1930 26,000,000 1931-23,750,000 1932-1933 17,000,000 1934-1935 16,999,966 1936-1937 16',499,998 1938-1939 16,223',194” The former valuations were not made the basis for the 1938-1939 assessment; hut they may be looked to on the *262 argument that the railway’s property had declined in value. The Board in its opinion stated, “It will he seen, that the assessment made for the year 1938-1939, is a substantial reduction from the high of 1929-1930, indeed, a reduction in the sum of $9,776,806.00. We are convinced that this reduction of companies assessment from the high point in recent years, is comparable with the reduction enjoyed by owners of other property or any class of property, within the bounds of this State.” It is argued that property generally, throughout the State, is assessed for taxation at less than cash value, and that the court should take judicial knowledge of such underassessment. Whatever may have been the practice in this regard in former times, it is our belief that since 1930' assessments generally are and have been higher than the actual cash value of the property assessed. It is argued that the Commission “arbitrarily assessed the railway’s distributable property at the valuation placed upon it for the preceding biennium, notwithstanding the abandonment of 38 miles of Tennessee main track which the Commission had in said previous assessment included at a valuation of $15,407.93' per mile, aggregating $587,500.” The argument seems to be that the Commission and Board should have deducted from the assessment the sum of $587,500 representing the value alleged to have been placed on 38 miles of main track in the assessment of 1936-1937, and asserted to have been thereafter abandoned. The railway returned 800.2 miles of main track for the 1938-1939 assessment and that is the mileage assessed. The 38 miles was not included in the return or the assessment. In considering the various factors and elements going to make up the distributable value of the properties for 1938-1939, the Commission and *263 Board found the total value thereof (excluding the 38 miles above mentioned) to he $12,926,944, which assessment it is asserted is the same as 1938-1939. The total assessment for 1938-1939 was $276,804 less than for the previous biennium. The valuation for assessment of the 800.2 miles of main track returned by the railway for assessment fixed by the Board, under the statute and authorities hereinbefore cited, cannot he reviewed by this court, the Board not having- exceeded its jurisdiction or acted illegally. The opinion of the Board contains the following: “This appeal presents to the Board a difficult problem. Each member is ex officio. Therefore, adequate time is not ours to give the necessary investigation to entirely satisfy even ourselves, that we may reach an equitable conclusion. However the responsibility is ours and we would not shirk it. ’ ’ It is contended that this statement shows that the Board made the assessment, or approved the assessment without making necessary investigation. The opinion specifically refers to the railway’s exceptions and there is nothing to show that they were not given consideration. While not dealt with seriatim in the opinion, the conclusion reached was that the assessment made should stand. Various additional affidavits, charts and maps were introduced by the railway before the Board and there is nothing to show that these were not considered by the Board. On the contrary the record shows that the exceptions were fully argued before the Board and the able counsel for the railway and the Board acquainted the Board with all the pertinent facts and with their respective contentions. The assessment as made by the Commission, together with the whole record as made up before it, was filed with the Board, as required by Code, *264 section 1533. The Board “proceeded to examine the assessment so made,” as required by Code, section 1534. It received additional evidence from the railway.. It is mere empty assertion to say that the Board did not give proper or sufficient consideration to the cause. To upset the decision of this quasi court because of the expression set out above, which was immediately followed by the language, ‘ ‘ However, the responsibility is ours and we would not shirk it, ’ ’ when there has been a full hearing-on the exceptions, would be wholly unwarranted, especially when on a full hearing by the Board it was found that the exceptions were without merit, and subsequently so found, in effect, by the circuit judge. . After due consideration, we find all of the assignments of error to be without merit. The result is that the judgment of the trial court is affirmed. The railway will pay the costs of the appeal. Cook, J., and "W. T. Keinnekly, S. J., concur. McKinney and Chambliss, JJ., dissent.