Atchison, Topeka & Santa Fé Railroad v. Howe

The opinion of the court was delivered by Hurd, J.: On the 6th day of March, 1883, the legislature .passed an act entitled “ An act concerning railroads and other common carriers,” by the second section of which, “ a board of railroad commissioners,” consisting of three competent persons, was created, and by the fifth section, “the general supervision of all railroads in the state, operated by steam, and all express companies, sleeping-car companies, and all other persons, companies or corporations doing business as common carriers in this state,” was given to such board. Section* three of the‘act fixes the salaries of the commissioners and secretary, and directs the same “to be paid as the salaries of other state officers.” Section four of the act is as follows: “ Sec. 4. To provide a fund for the payment of the salaries and current expenses of the board of commissioners and secretary, the board shall certify to the auditor of state, on or before the [762] 20th-of May, in each year, the amount necessary to defray the same; which amount shall be divided pro rata among the several railroad companies, according to the assessed valuation of their property in the state, and the auditor shall thereupon certify to the county clerk of each county the amount due from the several railroad corporations located and operated in said county, and the county clerk shall place the same on the tax rolls of his county to be collected the same as other taxes upon railroad property; and the county treasurer shall account to the state for the same as provided by law for the other state funds: Provided, That in unorganized counties the amount so found due from railroad companies therein shall be included in, and levied and collected with, such taxes as are levied and collected by the state from railroad companies located in said unorganized counties.” For the purposes of assessment and taxation, railroad property is referred-to-in the concluding part of section 27, article 7, ch.-107, Comp. Laws of 1879, as follows: “The board, when properly organized as herein provided for,-shall proceed to ascertain all the personal-property of any railway company, owning, operating or constructing a railway in this state, which, for the purposes of assessment and taxation, shall be held to include the track, road-bed, right-of-way, water and fuel stations, buildings and land on which they are situated adjacent to or connected with the right-of-way, machinery, rolling stock, telegraph lines and all instruments connected therewith, material on hand and supplies provided for operating and carrying on the business of such railroad, together with the moneys, credits, and all other property of such railway company used or held for the purpose of operating' its railroad by such railway company, and appraise and assess such property as personal property at its actual value in money.” The amount necessary “to provide a fund for the payment of the salaries and current expenses of the board of commissioners, and secretary,” in and for the year 1883, was ascertained by the auditor of state, and by him divided pro rata among the several railroad companies according to the assessed valuation of their property in the'state; and pursuant to the statute mentioned, a- tax was levied in each, of the counties through which such railroads passed, upon the amount of the assessment in such county, for the payment of the same. The [763] property of the plaintiff in the unorganized counties of Finney and Hamilton was assessed at seven hundred and eighty-nine thousand seven hundred and four dollars and seventy-nine cents, and for the purposes aforesaid a tax was levied on this assessment in the sum of $473.82. The plaintiff refused payment of this tax, and the defendant threatening to enforce its payment by issuing the warrant provided for by § 37 of article 7, ch. 107, Comp. Laws of 1879, commenced this suit in the district court of Shawnee county, to enjoin the defendant from issuing such warrant for the collection of such tax. The defendant demurred to the petition, on the ground that it does not state facts sufficient to constitute a cause of. action. The court below sustained the demurrer, and entered judgment against the plaintiff for costs. The plaintiff brings the case to this court for review. Under the statutes, (Comp. Laws 1879, ch. 107,) all of the property - of railroad companies within the state (except real estate not used or necessary to be used for the convenient or daily operation of the road) for the purposes of assessment and taxation, is considered personal property, and the valuation and assessment are made- by a board consisting of certain state officers, and the amount of the assessment is apportioned among the counties through which a road passes in the proportion which the whole length of such road in each county bears to the whole length of said road; and upon such assessment the annual taxes for state, county and other purposes are levied, in organized counties by the board of county commissioners and collected by the treasurer of the counties, and in unorganized counties by the auditor of state and collected by the state treasurer, and the state taxes so levied and collected form in part the general revenue of the state, and such taxes may be enforced by the sale of property. The state has created this board of railroad commissioners, and invested the commissioners with certain powers of the state, and placed under their charge portions of the property of the state, and compensates them from the state treasury in the same manner and from the same funds that other, state [764] officers are compensated. For the purpose of reimbursing the treasury for the moneys .appropriated for the salaries of the commissioners and secretary, and the expenses of the board, section 4, ch. 124, Laws of 1883, provides that the amount required shall be certified to the auditor of state, “ which amount shall be divided pro rata among the several railroad com- ' panies according to the assessed valuation of their property in the state.” This apportionment is upon the assessment made for the purposes of taxation of the property of railroad companies under section 27, supra. •All of the legal machinery of the state for the assessment of railroad property and the levy and collection of taxes thereon for state purposes, is employed in the levy and collection of these taxes, except that the amount to be collected in each county is fixed by the auditor of state. In the statute under consideration the legislature has designated the levy or exaction as a tax, and the act making the appropriation for the payment of their salaries, (sec. 57, ch. 23, Laws of 1883,)-designates them as taxes levied upon the railroad companies. We think that the taxation provided for in the fourth section of chapter 124 of the Laws of 1883, is a tax upon one class or species of property, to be collected from property in the same manner as taxes on personal property are collectible within the state, and that the section aforesaid authorizing the levy and collection of such taxes is in conflict with §1 of article 11 of the constitution, providing for a uniform and equal rate of taxation, and is void, and that the taxes complained of are null and void. It is evident that the legislature regarded this tax as a property tax, and not as a license or an inspection tax, because the tax is not assessed upon all the companies, corporations and persons subject to be regulated by the provisions of the statute. (Laws of 1883, ch. 124, §5.) The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.