Chicago, Burlington & Quincy Railroad v. Board of Commissioners

The opinion of the court was delivered by Horton, C. J.: The constitution of the state ordains that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” (Art. 11, §1.) To compel uniformity and equality of assessment and taxation, the statute provides that all property shall be assessed at its true value. (Gen. Stat. of 1889, ¶6861.) In this case, it appears from the findings of the trial court that a greater burden of taxation was imposed in 1893 upon the property of the railroad company in Atchison county than on other property in that county. The taxes were levied upon the railroad property at its true and actual value, but the levy for taxes upon all other property was at 25 per cent, of its true value. This, of course, is subversive of the obligation imposed by law to make all property bear an equal burden of taxation. (Gen. Stat. of 1889, ¶¶6861, 6904.) This unequal valuation was not the result of an accidental omission of property from the assessment list, or an accidental valuation of property at more or less than its true value. The state board of railroad as — 788 — sessors valued the railroad property in Atchison county for taxation at its true value, but the city and township assessors of that county, by an agreement between themselves, assessed all the other property of the county at 25 per cent, of its true'value. Thus, by concerted action, the statute of the state was flagrantly disregarded. There is a statement in the findings that the assessors acted ignorantly. “Ignorantia juris, quod quisque scire tenetur, neminem excused,” — “ Ignorance of the law, which every one is bound to know, excuses nobody.” The statute providing for the valuation of property for taxing purposes is so plain that “ wayfaring men, though fools, shall not err therein.” Valentine, J., speaking for the court, in Adams v. Beman, 10 Kas. 37, requiring the local assessors to meet in March of each year and agree upon a basis of valuation of property, thus clearly explains the statute: “ That section means that assessors shall meet and compare their various views and notions with regard to the values of all the different articles of property required to be assessed, and then, from these various views and notions, agree upon what should be the true and correct values of all said articles of property, and then establish such values as the basis of the valuation of the property that they might be called upon to assess.” (Laws of 1870, p. 245.) That section in no way conflicts with § 15 (Gen. Stat. of 1889, ¶ 6861). The habitual disregard of the statute relating to the valuation of property for taxation by local assessors has been continuously condemned in the decisions of this court, from Adams v. Beman, 10 Kas. 37, to Challiss v. Rigg, 49 id. 119. In every instance where this court allowed the assessors an inch of leeway in valuing property, they have taken the proverbial ell, and more. The injustice of the system of taxation, growing out of the constant and continued disregard of the proper valuation of property, becomes more and more apparent in every case brought to this court where such proceedings are reviewed. The words of advice given from time to time in the decisions — 789 — of this court to local assessors have not been of any practical utility, and the condemnation by this court of such unlawful conduct has not been given respectful attention. As' before observed, the railroad property in this ease was overvalued, as compared with other property in Atchison county, and the result is that the taxing officers have discriminated in their assessments so as to compel the railroad company to pay a rate four times the proportionate amount charged against other property in the county. Before the commencement of this action, the company tendered to the treasurer of Atchison county all of the taxes levied for state purposes, and a sufficient amount for the county and other taxes, if its property had been assessed as other property. There has been a gross.discrimination in the taxation of the railroad property. The law has not been observed. The taxes complained of are not equal and uniform. While exact equality and uniformity cannot be had, and while mistakes and omissions by assessors may not, in all cases, be the subject of adequate remedy in the courts, yet, for the gross injustice and violation of the law complained of, there ought to be some remedy. The plaintiff below, having tendered all of the state taxes, and also its just share of the county and other taxes, is entitled to have enjoined the collection of the illegal excess. (Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, 101 id. 153; Lefferts v. Board of Supervisors, 21 Wis. 688; People v. Weaver, 100 U. S. 539.) It is insisted that before the plaintiff can be permitted to go into a court of equity to enjoin the collection of the illegal excess, resulting from a discrimination or overvaluation of its property, it ought to have applied to the state board of equalization for relief. Braden v. Union Trust Co., 25 Kas. 362, is cited as decisive. It is ruled in that case that “ The state board of equalization has the power, when equalizing the various assessments made for taxation, to equalize the same by increasing or decreasing the valuation of railroad — 790 — property, as well as by increasing or decreasing the valuation of any other kind of property.” Under the findings of the trial court, it were useless to compel the plaintiff to apply to the state board of equalization, because it appears that the railroad property has been assessed at its true and actual value. Therefore, the state board of equalization could not change materially the valuation of that property. The action of the state board of equalization does not result in a change of the amount of taxes anyone would pay under levies for local purposes and would afford no relief to the railroad property assessed at full value, as against local taxes extended on its valuation at 100 per cent., and on all other property at a valuation of 25 per cent. The law provides for the meeting of various county and local officials to determine their rate of taxes to be levied. It is well known that the state board of equalization scarcely ever completes its equalization and gets out its reports thereof until after most of the local levies are made. Under all the facts disclosed in the findings, the equalization board could not have effectively equalized the property illegally and improperly valued, so as to have corrected the levy of the county and other local taxes, and a party is not required to do a vain thing. Further, the statute of the state expressly declares that actions may be brought to enjoin the illegal levy of any tax, charge or assessment, or the collection of them. (Civil Code, § 253.) Therefore the remedy by an injunction is expressly granted. It was held in Cummings v. National Bank, supra, “That when a rule or system of valuation for purposes of taxation is adopted by those whose duty it is to make the assessment which#is intended to operate unequally, in violation of the fundamental principles of the constitution, and when this principle is applied, not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operations of the unconstitutional exercise of power; that the appropriate mode of relief in such cases is, upon payment of the amount of the tax — 791 — which is equal to that assessed on other property, to enjoin the collection of the illegal excess.” In Stanley v. Board of Supervisors, 121 U. S. 535, it was remarked that, “When the overvaluation of property has arisen from the adoption of a rule of appraisement which conflicts with a constitution 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 be due.” Our attention is called to Adams v. Beman, 10 Kas. 37, and Challiss v. Rigg, 49 id. 119, as conclusive in favor of the judgment rendered. In both of those cases, this court was asked to have the taxes declared null and void. In Adams v. Beman, Mr. Justice Valentine, speaking for the court, observed : ' “This was an action brought for the purpose of restraining by injunction the collection of certain taxes claimed to be illegal and void. . . . The plaintiffs have not presented the question so that we could declare void the county taxes for Shawnee county, or the township, school district or other taxes in and for Shawnee county, and still declare the state taxes to be valid. But they have so presented the question that, if we should declare any tax void, we must necessarily declare the whole of the taxes void, state taxes as well as county and other taxes.” In Adams v. Beman, supra, the court also ruled that the assessment, although improperly made, did not authorize an injunction to restrain the collection of any part of the taxes levied • but no reasons are given in the opinion for that ruling, except that the levy of the taxes for 1870 was not void. The whole argument in that case made by the attorneys for the injunction is founded upon the theory that, if any of the taxes complained of were illegal, all were void. Challiss v. Rigg, supra, was an action brought to have the taxes declared void. The decision in that case follows Adams v. Beman, supra, and does not extend the rule. The court very properly — 792 — refused an injunction in the Challiss-Eigg case to restrain the collection of the illegal excess of taxes, because of the failure of the plaintiff to aver in his petition that he had paid or tendered so much of the taxes assessed against him as it could be plainly seen he ought to pay. 1. Cases, distinguished 2. Taxation— £sment^r¡!ecuonnof001" illegal excess. It was ruled in City of Lawrence v. Killam, 11 Kas. 499, that “where a definable portion of the tax is legal, and the balance illegal, equity will not interfere unless that which is legal be first paid.” See, also, Wilson v. Longendyke, 32 Kas. 267, and cases cited; Railroad Co. v. Clark, 153 U. S. 252. In this case, unlike the cases of Adams v. Beman, supra, and Challiss v. Rigg, supra, the plaintiff does not ask the court to declare all the taxes void. The plaintiff has tendered the state taxes, and the amount of the county and other local taxes which is equal to its proportionate share of such taxes for 1893, if its property had been assessed as other property. We do not think the courts are powerless to prevent such a gross discrimination in the assessment and taxation of property as is shown in this case, where one class of property is assessed and taxed at its actual value, and all the other property in the same county is assessed and taxed at only 25 per cent, of its value. The rule favored in this case permits the state and the county to collect from the plaintiff its just share of the public burden, and prevents the unfortunate consequences which would result if all the taxes levied were declared void. Upon payment to the county treasurer of the taxes tendered, J 7 or their deposit into the district court for his use, the plaintiff will be entitled, upon the findings of • * fact of the trial court, to an injunction to restrain the collection of the illegal excess of the taxes levied. The judgment will be reversed, and the cause remanded, with direction to the court below to enter judgment for the plaintiff, in accordance with the views herein expressed. All the Justices concurring.