State ex rel. K. C., St. J. & C. B. R. R. v. Severance

Wa&ner, Judge,

delivered the opinion of the court.

The main questions in this case are whether the act approved March 10, 1871, (Sess. Acts 1871, p. 56.) entitled “an act to provide for a uniform -system of assessing and collecting taxes on railroads ” applies to the city of St. Joseph, and whether it is a valid, and constitutional law ?

After the board of equalization provided for in said act had made their assessment on the property of the relator, and apportioned the amount on the same within the limits of the *384 city, and duly certified their return, the city authorities proceeded to make a new and additional assessment greatly increasing the amount, claiming that they were not bound by the assessment made by the state board, and that the act in question had no application to the city.

The relator, after appealing unsuccessfully to the city court of revision and appeals, obtained a writ of mandamus to compel the city authorities to change the city assessment to the amount assessed by the state board of equalization.

Upon the hearing of the cause the writ was made absolute, and the defendants appealed.

At 'the threshold of this case we are met with the objection that the plaintiff has misconceived its remedy, and that mandamus will not lie. But as the matters in issue have been regularly passed upon, and they have been brought here,we think it will be more consonant to justice, to examine the case and put it at rest than to turn the party out of court for such' a reason, although we might be of the opinion that the defendant’s counsel were correct in their position.

The first section of the act of 1871 provides that all railroads now constructed, in course of construction, or which shall hereafter be constructed in this state, and all other property, real, personal or mixed, owned by any railroad company or corporation in this state, shall be subject to taxation, for state, county and other municipal or local purposes, to the extent and in the manner thereinafter set forth.

Section 2 provides, that on or before the first day of February in each and every year, the president or other chief officer of every railroad company whose road is now, or which shall hereafter become so far complete and in operation as to run locomotive engines, with freight or passenger cars thereon, shall furnish to the state auditor a statement duly subscribed and sworn to by said president or other chief officer, before some officer authorized to administer oaths, setting out in detail all the property of said company, including the roadbed, buildings, machinery, engines, cars, lands, workshops, depot and all other property of whatsoever kind,with the loca *385 tion thereof, and the actual value thereof, in each county, in cash. ^

By section 4, in addition to the statement required by the preceding section, it is made the duty of the president or other chief officer, on or before the first day of February, in each and every year, to furnish the state auditor with a statement duly subscribed and sworn to, setting out the length of such road that may bo so far complete and in operation as to run locomotive engines, with freight or passenger cars thereon, and the number of miles in length of such road in each county, city or incorporated town in which said road may be located.

By section 5 the state auditor, state treasurer and the' register of lands are constituted a special board of equalization of railroad property, with all the powers, and entitled to discharge the same duties with reference to railroad property as the state board of equalization with reference to all other property.

Section 6 requires the board to meet at the office of the state auditor on the first Monday in May, in each and every year; when the state auditor is commanded to lay before the board all the returns which have been made to him in compliance with the law.

By section 7 it is provided as follows: “The board shall thereupon proceed to adjust and equalize the aggregate valuation of the property of each one of the railroad companies liable to taxation under the foregoing sections of this act. The board shall have power to summon witnesses by process issued to any officer authorized to serve subpoenas, and shall have the powers of a circuit court to compel the attendance of sucffiwitnesses and compel them to testify. They shall have power to increase or reduce the aggregate valuation of the property of any railroad company in accordance with the evidence produced before them, and as they may deem just and right. If the said board should deem personal inspection of the property of any railroad company necessary to a thorough understanding of its value and a just decision, they shall *386 have power to visit such road, and may adjourn from time to time for that purpose.”

Section 8 declares: “The board shall apportion the value of all lands, work-shops, depots and other buildings belonging to each railroad company to the counties, cities or incorporated towns in which such lands, work-shops, depots and other buildings are situate, and the aggregate value of all other property of each railroad company shall be apportioned to each county, city or incorporated town in which such road shall be located, according to the ratio which the number of miles of road completed in such county shall bear to the whole length of such railroad.”

It is now contended that this law, general in its character, does not apply to the Oity of St. Joseph, whose charter, passed prior thereto, gave it. express power to tax the property of railroad companies within the corporate limits. There is no question concerning the now generally admitted rule, that a general affirmative statute will not repeal a former one, which is special or particular in its nature, unless negative words are used, or the acts be so entirely inconsistent that they cannot stand together. In such cases there is nothing but an implication of repeal, and repeals in that manner are not favored. But it is really a question of intention, and where' the legislative intent is manifest or apparent it must prevail. The statute says, that all railroads now constructed, in course of construction, or which shall hereafter be constructed, and all other property, real, personal or mixed, owned by any railroad company or corporation, shall be subject to taxation for State, county, or other municipal or local purposes. A board of equalization is then organized with full and complete power to assess the roads and all their property. Not only does the board complete' and ascertain the value in their assessment, but it is made their duty when the assessment is arrived at; to apportion the value of all lands, work-shops, depots and other buildings belonging to each railroad company to the counties, cities or incorporated towns in which such property is situate. If it were intended that the cities and towns should still have the privi *387 lege and power of again assessing the property under their municipal ordinances, for wliat purpose was the law enacted? The provision apportioning the lands, work-shops, depots and other buildings to the municipalities, under such a construction, would be a mere nullity and amount to nothing more than unmeaning verbiage. We must suppose, that the legislature meant something, and that they intended what they said, and that therefore all the property was to be assessed by the board, and that they were to ascertain the value within the limits of any city, and transmit that amount as the proper assessment in favor of the city, and that their action in this regard was exclusive of all other officers, either State or municipal. This construction is obvious, else the act has no efficacy.

It is further insisted with great zeal, in an able and eloquent argument, that the act is void, because it violates that provision of our constitution which declares that taxation on property shall be uniform. We are unable to perceive .the force of this objection. Under the act no part of the company’s property is exempt, and it is all taxed alike upon a cash valuation. The board of equalization assess all the property at its cash value, and then it is taxed in the same manner as all other property of a like description. The principle of uniformity is adopted throughout. Its validity is in no wise impaired or affected because a different mode of assessment is provided for, so long as the same end is attained. It is not an absolute or indispensable requisite that the county or corporation assessor should make the assessment. That duty may be devolved on any other officer or officers, if uniformity ig_ accomplished and preserved.

There is no attempt here to tax one section for the benefit of another, nor is any real inequality produced. The board apportions and sets off the value-of all real estate to the counties, cities or incorporated towns in which it is situated, and they collect what is due to them upon the same. Thus there is no exemption and no inequality. Should the board omit to assess any property or place too low an estimate upon it, the *388 proper proceedings should be taken by those interested to have the error or mistake rectified. The board has the power of a court of appeals for the purposes for which they are organized, and may take testimony, summon witnesses, raise or diminish the value of the property as in their judgment may be right to make a just, fair and uniform assessment. As such board they are amenable to the same supervision as other boards performing similar duties.

But the point is strongly pressed that the law is objectionable because aside from the real estate it provides that the aggregate value of all other property of each company shall be apportioned to each city, county or incorporated town iri which such road shall be located, according to the ratio which the number of miles of such road completed in such county shall bear the whole length of such .railroad. So far as the actual road-bed is concerned, it is not questioned that this is a sufficiently uniform and just manner of making the taxes. But it is argued with great earnestness, that in the phrase “all other property,” is included the rolling stock of the railroad, and that,the company having its chief offices for the transaction of its business in the city of St. Joseph, there and there alone this property should be assessed and made liable for taxes; that though constantly used in other counties through which the road passes, in the transaction of the business of the road, still its only situs is where the chief office is located, and there it must be taxed.

The proposition is undoubtedly true, that where a corporation has its residence, there the property of this description is liable to assessment and taxation, if the law has prescribed no different rule or regulation on the subject. This notion of the situs of personal property following the personal residence of the corporation, is a legal fiction, but is not an unbending and uncontrollable principle of law. It may be modified by the legislature. The rolling stock of a company is in a constant state of transition, and has no more real local existence in one county than another. A county through whose whole length it runs might well think that it had as much right to tax it as *389 a city that it passed through but for a mile or two at most; but both would have no right to levy a tax, for that would be double taxation upon the same property.

This machinery, by which the road is operated, is constantly passing from one terminus to the other of the entire road, and to save all cavil and dispute in respect to it, it was perfectly competent for [the legislature to say that it should become a part of the road itself, and become property the same as the road, and that for the purposes of taxation it should be equally distributed through the counties, cities or towns through which it passed, in proportion to its length in those respective localities.

It is, however, said, that the act of the legislature designates no particular mode by which cities and towns can collect the taxes from the company, under the valuation made by the board of assessment. But this is not an insuperable objection. The well known rule is, that where a statute creates a right and gives no remedy, the party may resort to the usual remedy applicable to such a case. (Carondelet vs. Picot, 38 Mo., 130 ; Dudley vs. Mayhew, 3 Comst., 9; Almy vs. Harris 5 Johns., 175 .)

I think the judgment should be affirmed.

The other judges concur.