IN THE
SUPREME COURT,
ST^TE OIF Kz^isrs^s.
THE MISSOURI RIVER. FORT SCOTT ^
AND GULF RAILROAD.
Plaintiff in Error,
against
C. MORRIS, Trf.asuker,
and
C. s VVHEATON, Sheriff
of Bourbon Countv,
Defendants in Error.
BRIBE FOR PLAIN/IFF IN ERROR.
PRATT & BLAIR. Attorneys for Plaintiff in Error.
f
IN THE
SUPREME COURT,
ST^TE O:F sz^isrs^S-
THE MISSOURI RIVER, FORT SCOTT ^
AND GULF RAILROAD,
Plaintiff in Error^
against
C. A. MORRIS, Treasurer, ^
and
C. S. WHEATON, Sheriff
of Bourbon County,
Defen davits in Error.
BRIEF FOR PLAINTIFF IN ERROR.
PRATT & BLAIR, Attorneys for Peaintiff in Error.
1.
statement of the case.
This action was commenced in the District Court, Bour¬
bon County, to set aside and enjoin the collection of a tax
amounting to the sum of thirteen thousand, six hundred and
forty-eight dollars and thirtv-seven cents, levied by the of-
iicers of said county upon the Railroad property of the
plaintifTin error, and upon an alleged illegal and unauthorized
%
valuation of such property attempted to be made in pursuance
of Chapter 154, General Laws 1S69.
The tax roll includinsf this tax, was at the time of the filinor of
the Petition in the hands of the said Treasurer for collection,
and a warrant about to be placed in the hands of the Sheriff,
The Flai)itiff in error moved upon the petition dulv veri¬
fied, together with admissions and due proof of the material
allegations of such petition, for a temporary injunction against
the Defendants in Error to restrain them from the collection
of such tax.
No affidavits or proofs of any kind were introduced by the
Defendants in Error upon the hearing of such motion. The
motion was refused by the District Couit, and the Plaintiff
in Error thereupon made a case for the Supreme Court.
II.
THE QUESTIONS PRESENTED FOR THE ADJUDICATION OF
THIS COURT, ARE :
First. Is Chapter 124 of the General Laws of 1869 a
valid and constitutional Law ?
Second. Were not the proceedings, by wbich the property
of the Plaintiff' in Error was valued, and such valuation ap¬
portioned to the different counties along the line of its Rail¬
road, so irregular as to render the tax levied upon such valu-
tion illegal and void ?
Third. Can this action be maintained for the purpose of
adjudicating either of the above questions ?
Foiirth. Is the Plaintiff in Error entitled to the relief
prayed for in its «petition herein ?
III.
POINTS FOR THE PEAINTIFF IN ERROR.
First. As to the unconstitutionality of Chapter 124 of
the General Laws 1869.
While admitting the power of taxation of all persons and
property belonging to the body politic as one of the attri¬
butes of the sovereignty of the State, and one to be exercised
s
by the Legislature to an almost unHmited extent/yet there
are certain fundamental rules, the non-observance of which
by the Legislature in the exercise of this power may cause
the burden to be so oppressive upon the subject as to render
it not a tax, but an unlawful confiscation of property.
Among these rules, and tiie most important of all, is that
requiiing taxation to be equal arid uniform.
The State of Kansas has incorporated in its constitution
this fundamental principle in the following apt and concise
language :
*'The Legislature shall provide for a uniform and equal rate
of assessment and taxation."
(CONSTITUTION; ART. JI, SEC. 3.)
To render taxation uniform, however, in any case, it is es¬
sential that each taxing district shall confine itself to the sub¬
jects of taxation within its limits; else^ there might be dupli¬
cate taxation and hence inequality.
Cooley on Constitutional Limitations, page 566, says :
'^Assessment upon real estate not lying within the taxing
districts would be void, and assessments for personal prop¬
erly made against persons not residing in the district would
also be void, unless made with reference to the actual pres¬
ence of the property in such district."
The residence of a private corporation is in the town where
its principal office is located.
Angelí & Ames on Corporations, 8th edition, s. 107.
Conn, and Pass. Rivers Ry. vs. Cooper, 30th Vermont,
page 467.
Redfield on Railways, 2nd vol., page 382, and cases cited.
In examining the provisions of chapter 124, above referred
to, we find that this fundamental rule of taxation has been
in part ignored.
Section 2, (Laws 1809, page 245,) provides that the County
Clerks of the several counties along the line of railroad
"shall constitute a board of appraisers and assessors for the
property of such railroad company."
Section 3, after providing for the meeting of such biiard
4
and its organization, contains the following clause :
"Such board when properly organized, as herein provided
for, shall proceed to ascertain all the personal property of
such railroad company, which shall be held to include the
track, road bed, right of way, water and fuel stations, build-
ines, and the land on which they are situated, machinery,
rolling stock, telegraph lines, and all instruments connected
therewith, material on hand and supplies provided for oper¬
ating and carrying on the business of such railroad, together
with the moneys, credits and all other property of such rail¬
road company, used or held for the purposes of operating by
such railroad, and appraise and assess such propertv at its
actual value in money."
Section 7, page 247, provides as follows :
''The value of such property, moneys and credits of any
railroad company, as found and determined by said board,
shall be apportioned by said board among the several coun¬
ties through which said road or any part thereof runs, so
that to each county shall be apportioned such part thereof as
shall be equal to the relative value of the real estate, struc¬
tures and stationary personal property of such company
therein, in proportion to the whole value of the real estate,
structures and personal propertv of said railroad com¬
pany in this State, and so that the rolling stock of such com¬
pany shall be apportioned in the same proportion that the
length of such road in such county bears to the entire îeng^th
thereof in all said counties or county; and the board shall
certify to the County Clerk of each county interested the
amount apportioned to nis county."
Thus, after appraising the value of all the personal prop¬
erty, which includes the rolling stock, machinery, materials,
supplies, moneys, credits, &c., this board oi appraisers and
assessors is required by section 7^ above quoted, to apportion
value of such property^ moneys and creditsf (not inclu¬
ding, however, the rolling stock,) among the several coun¬
ties, giving to each such a proportion as the value of the
propertv in that county bears to the whole in the State ; and
apportioning the rolling stock according to the number of
miles of road in such county: notwithstanding portions of
'»uch rolling stock, SBch as yard and switch engines, may
never have been in the county. Take, for instance, the case
of a long road, lik^ the Kansas Pacific Railway, which is op¬
erated in divistons, so that the entire motive power used to
operate each division, rarely, if ever leaves that division.
Upon what principle can it be claimed that rolling stock,
used exclusiv^ely upon the division of the Kansas Pacific
Railway extending from State Line to Brookfield, shall bear
its proportion of the taxes levied by the County of Wallace,
which lies in the extreme western part of the State. It may
be claimed, however, that this is only an injustice to the
counties along the division where the rolling stock is used,
and not to the Railway Company. The fidlacy of this prop¬
osition is shown by the simple suggestion, that the taxes in
the countv of Wallace, and other western counties, might be
much larger than in the counties along the line ot said divis¬
ion.
The injustice and inequality of this system of apportion¬
ment is more apparent in the case of the plaintiff in enor,
which has part of its road in this State, and part in the State
of M ssc uri.
Section 8, of the Statute under consideration, provides that
in cases of this k ind "the board shall take the value of such
property, moneys and credits of such company, so found
and determined as aforesaid and divide it in the proportion
the length of such i"oad in this State beai\s to the whole length
of such road; and determine the principal sum for the value
of such road in this state accordingly, equalizing the relative
value thereof in this State, as provided in the fifth (sixtii)
■section of this Act.''
The plaintiff in error has one hundred and fifty-seven
miles of railroad in this State, and about three miles in the
State ot Missouri. Kansas City is the northern terminus of
the road, and there it has its machine shops, main depots,
materials and supplies, and a large and valuable property
connected with its road. Suppose, for instance, that the
machinery, materials and supplies, stationary motive power;
money, credits and effects, depot buildings and other person-
o
al property of the plaintiiT in error, at Krnsas Gity in the
State of Missouri (leaving out of the question, the possibly
greater value of the real estate over that in Kansas,) be val¬
ued at one hundred and sixty thousand dollars: then, under
the provisions of section 8, above quoted, one hundred ànd
fifty-seven thousand dollars of this amount would be appor¬
tioned to the State of Kansas for the purpose of taxation, and
three thousand dollars left to be taxed be the State of Mis¬
souri. Unfortunately, for the plaintiff in error however, the
State of Missouri would not be likely to see such a pecuni¬
ary advantage to itself in this mode of proceeding, as to ac¬
cept a tax levied only upon the three thousand dollar valua¬
tion, not taxed by the State of Kansas, but would probably
give the plaintiff an'opportuinity of paying a tax on ti e en¬
tire one hundred and sixty thousand dollars, notwithstanding
the tax by the State of 'Kansas on one hundred and ii.ft)'-
seven thousand dollars/
This is a fair illustration of the practical working and effect
of this law, and shows conclusively that it violates the rule of
uniformity above stated, and hence is unconstitutional and
void.
We lind further that the rule of uniformity has been ig¬
nored by the Legislature, by providing that the property of
railroad companies shall be valued and assessed by a differ¬
ent mode than that provided for the assessment of other
property. In the latter caie township assessors value and
assess all the property in their respective townships. In the
former, a board composed of the county clerks along the line
of the, road, value and assess the aggregate property of the
^•ailroad, and then apportion to each county in conformity
with the provisions of section 6, of chapter 134.
In the case of railroad companies, \h€\x real property \% as¬
sessed, and the tax collected as personal property. (Section
3, chap. 124, laws 1869, p. 346.) While in the case of indi¬
viduals, their real and personal' property are separately as¬
sessed and the tax separately collected.
"Uniformity in taxing implies equality in the burden of
taxation, and this equality of burden, cannot exist without
À
uniformity in the mode of the assessment as well as in the
täte of taxationT
, Ex. Bk. of Columbus vs. Hines. 3 Ohio State R. p. r vide
P- 15-
Thus far we have arg^ued the unconstitutionality of this
law upon grounds other than that presented to this Cour^
In the matter of the appeal of the Auditor of State from
the appraisal and assessment of the property of the Atchison,
Topeka and Santa Fe Railway Company."
In that case this Court dismissed the appeal, taken by the
Auditor of Sti-tj under the provisions of Sections 11, 12 and
13 of Chapter 124 of the Laws of 1869, holding that portion
of sa'd chapter which gave equally to the Railroad Company
and the Auditor of State, the right of an appeal from the
appraisement and assessment of the Board of County Cleiks
to the Supreme Court, was an attempt to conféra jurisdiction
upon the appellate Court, in direct violaticn of the
We readily acquiesce in the correct
n^ss of this adjudication, and submit that its effect is to in¬
validate the entire law.
By the provisions ot this chapter 124, as well as by the act
to which it is amendatory, the property of railroad compa¬
nies, both real and personal^ was valued and assessed per.
sonal property. The modes of assessment and valuation of
real and personal property, as prescribed by the General
Statutes, are entirely different.
In the case of real property the township assessor lists and
values all of the real estate in his township, and returns the
same to the County Clerk of the County. In the case of per¬
sonal properly the owner is required to list the same him¬
self, under oath if required; and furnish such list to the asses¬
sor. Should he fail to do this the assessor ascertains the same
and returns it to the County Cleik.
In the case of real estate the County Board of Equalization
composed of the County Commissioners, at their annual
; meeting in July, have the power to raise or lower the valua-
P.Hf tiy the assessor cn the same ; and before this board
any owner oj . real estate, feeling himself aggrievi;d by the ac-
3
tîon of the assessor, may appear and present his case to them.
While in the case of personal property no such privilege is
allowed the owner. Evidently to compensate the railroad
companies for the depriving them of the right to have the
action of the assessor reviewed by the County Eoard of
Equalization, by making their real estate taxable as personal
property, was the right of appeal attempted to be given
them by that p ^rtion of chapter 124, which this coiirt, as stated
above, has declared to be unconstitutional.
And it is but fair to assume that the Legislature would nevex
have done the inju ^tice to railroad companies of enacting a law
by which their real estate should be taxed as personal propert}^
and sodip; ive tliem of the right of review by the Board of
Equalization, without giving them an equivalent or compen¬
satory right of review.
C >oley on Cdnstituticnal limitations, p^^ge 17«^. says : -■
"When, therefore, a part of a Statute is unconstitutional,
that fact does not authorize the court to declare the remainder
vo\à^unless al: the frovisions ai'e connected in subject
matter^ depending on each other^ operating together for the
same pîirhosc^ or otherzvisc so connected together in meaning
that it cannot be presumed the legislature would have passed
the one without the other.''
Again, on page 179, he says :
"And ifthev are somuluillv connected with and dependent
on each other, as conditions, considerations :r compensations
for each other, as to warrant the belief that the legislature in¬
tended them as a whole, and if all could not be carried into
effect, the legislature would not pass the residue independent¬
ly, then if some parts are unconstitutionad all the provisions
which are thus dependent, conditional or connected, must fall
with them."
Warren vs. Mayor &c., of Charlestown, 2 Gray, S4.
State vs. Commissioners Perry Co., 5 Ohio N, S. 507.
Slauson vs. City of Racine, 13 Wis., 39^.
Has the tax in question been legally levied and assessed
according to the provisions of chapter 124, laws 18691
assuming this law to be constitutional and valida
9
An assessment and a valuation being essential require¬
ments, the Statute must be strictly pursued in making
them, or the proceedings based upon them will be illegal and
vo'd.
Black .veil on Tax titles^ 2d ed, pages 106 and 153.
The Plaintiff in ror claims that essential requirements of
the la .V under consideration, and which were made for the
pi'otection of the railroad cou p nies, were not complied with
in the valuation of its property, upon which the tax sought to
be set aside was based.
A,
No notice was ever oriven to the Plaintiff in error of the
O
time and place of the meeting of the Board of Appraisers
and Assessors, as is required by law.
Sec. 4, of said chapter 124, provides as follows :
'dt shall be the duty of the Auditor of State to notify the
propjr C iiinty Clerks and the proper railroad company, by
mail or otherwise?, of the time and pl^ce of meetinsf as herein¬
before provided for, giving to each nat less than five days
notice."
A plain and proper construction of this section is that the
railroad comp mies, in order that the}^ may have an oppor¬
tunity of being present, and presenting for examination per¬
sons, books, papers and accounts, touching the value of their
property, as they are permitted to do by Sec. 3, of said chap¬
ter, shall be notified of the time and place of meeting of the
County Clerks of the several counties along the line of their
road, who, by the provisions of Sec. 2, constitute the Board
of Appraisers and Assessors.
And the more essential is it that the railroad companies
should have this opportunity to appear before this Board of
App ;aisers, witli their testimony touching the value of their
10
property, since this court has decided, (cnl we think prop¬
erly decided), that the provision in the law under considera-
ion, ;í:ív n ^ an appeal to the Supreme Court from the amount
of the appraisal by the Board, is unconstitutional and void ;
th us depriving the railroad company of the only opportunity
given them by law of seeking relief from an over valuation
of their property.
True, a notice was given to the PlaintitF in error, that the
Clerks of Wyandotte and fohnson Counties %vould meet^ (êc.
(Printed case page 14.)
This was no notice that the Clerks of Wyandotte, Johnson,
Miami, Linn, Bourbon and Crawford Counties, through which
the railroad of the Plaintiff at that time was built and in opera¬
tion, would meet to appraise and assess the value o f the
Plaintiff's property ; nor was it a notice that the Board pro¬
vided by law would meet ; but it simply informed the Plain¬
tiff that a board would meet at a certain time and place, for
the purpose of maki ig this assessment, composed of the
Clerks of but two counties, which the Plaintiff in Error well
/
knew would be an illegal board, and one not authorized to
make such assessments.
How was the Plaintiff to know that the Auditor of
State had notified the Clerks of other Counties than the two
named in the n ;t;ce served u[^on Plaintiff, or that any such
board as the law required would meet at the time and place
designated ?
The Plaintiff did not waive the want of notice by appear¬
ing before the Board, for its appearance was compiilled by
Older of the Board, served upon its Land Commissioner and
its attorney, in pursuance of Sec. 3, of said chapter 134.
The Plaintiff also submitted a written protest to the juris¬
diction of the Board, which was received by them rnd incor¬
porated in their record. (Printed case page 9.)
Blackwell on Tax titles, 2d ed., page 520-1, note.
11
B.
Non )tice was ever given to the County Clerk of Craw¬
ford Cou ity of the time and place of meeting of such Board
of Appraisers and Assessors, n.r v^ as he pie^ n. at sulIi
meeting.
It is a rule of the Common Law, as well as the SiatuteLaw
of this State, that an authority, imposed for -public purposes
upon three or more persons, may be executed by a m.ijority ;
yet all 7nust he legally jiotified to act.
Blackwell on Tax titles, 3d ed. page 112.
People vs. Batchelor 22 N. Y. page 128 vide '31-145.
Keeler vs. Frost, 22 Bai^ 400.
The Statute imder consideration modifies both the Common
Law and the General Statute,^y providingin Section 3, that
'Tn all meetings of such board ,4iiajority of such County Clerks
.ôhalÎ constitute a quorum for the transaction of business, and
a majority of those present at any meeting having a quoi urn
shall decide all questions submitted," &c.
In Section 4, however, it directly follows the rule of the
Common Law, by making it the duly of the Auditor of State
to give not less than five days notice to all of the proper
County Clerks, of the time and place of meeting.
Nothing can be plainer or more reasonable than this re¬
quirement.
If the neglect to notify one of the Clerks is an immaterial
departure from the requirements of the law, then it is only
requisite that a sufficient number be notified to constitute a
quorum, namely, a majority of the whole number of clerks.
Let us look a moment at the practical working of this con¬
struction of the law :
12
Aí^sume that the whole number of Clerks, who should con¬
stitute this Board, is ten; four of the number known to the Au¬
ditor of the State to have an exaggerated idea of the value of
railroad property ; the other six known to him to have oppo¬
site views. He notifies the four with the exaggerated ideas
and two only of the other six, who meet, and, being a majori y
of the whole number, constitute a quorum and proceed to the
valuation of the railroad property. The four, being a '■^major¬
ity of those present at any meeting having a quorum f control the
entire valuation. In the case at bar, it might have been, had
the Clerk of Crawford county been notified of, and present at
the meeting of the Board, that his influence and vote would
have changed the valuation of the property of the Plaintiff
from a sum, double the valuation of most of the other railroad
property of the State, to one more just, honest and equitable.
At least, the Plaintiff in Error was entitled to a trial of the
experiment
c.
The Board was ako improperly and illegally orginized by
the admission of Joshua C'ayton, the Deputy Clerk of Miami
county, as one of the members of the Board, and by his taking
part in their proceedings and determinations.
The duties prescribed by said chapter 124 for the Board of
Appraisers and Assessors are partly ministerial, and partly
'^quad" judiuial; and we wish it distinctly understood, that
we do not use the word "judicial " in the sense in which it is
used in the Constitution of the State of Kansas, but simply
as defining duties and acts req[uiring an exercise of the judg¬
ment and discretion, as contradistinguished from those purely
ministerial.
Section 3, of said chapter, confers upon this Boardpower to
call upon the officers of the railroad companies for statements
of all the items of their property; to examine their books
and papers; to examine their officers, servants or agents,
under oath; makes it the duty of the Board to examine any
and all persons, books, papers and accounts which they may
call for or may be presented to th^ju by*such Company^ touching
the value ol the property to be appraised and assessed; and
from such examination to determine the value of the prop¬
erty; also empowers any one of the Board to administer the
necessary oath. These duties are ceriainiy not ministerial,
but are duties requiring the exercise of judgment and discre¬
tion, and must be exercised by the persons upon whom the
law has conferred the power. This power can not be dele¬
gated.
Easton vs. Callender, 11, Wend. 92.
Barhyte rs. Shepherd, 35, Iii". Y. 238.
Weaver vs. Devendorf. 3. Denió 117.
Bacon's Abridgement^ Ihtle, Officer, Yol. 7, p. 317.
The County Clerks when sitting as a Eoard, of Appraisers
under this law, are not peiToriniig the dutie-» required of
County Clerks by the General Statute, but, from the cir¬
cumstance of their being such County Clerks, they are ex-
oificio " made members of this BoarH.
The Law creating this Board does not apply to all of the
County Clerks throughout the State, but only to those along
the line of rai'roads.
Hence the General Statutes, authorizing the appointment of
a Deputy to act in certain sjnecified contingencies, does not
authorize a Deputy appointed under it to perform even the
ministerial duties imposed upon this Board oí Assessors
much less could he perform the "quasi judicial," or legislative
duties of the Board.
Nor is it any answer to this objection, to say that there was
a quorum of County Clerks present, without this Deputy. If
he had no right to sit and act with them, then he was an in¬
terloper and the action of the Board is a nullity.
14
His vote and influence may have been the cause of« this un¬
just and excessive valuation of the property of the plaintiff;
and if one Deputy can sit and act with the Board, then why
cannot the entire Board be composed of Deputies.
THIED.
Can this action be maintained for the purpose of adjudicating
the queistions raised by the Plaintiff in error ?
ITl on the argument of the motion for a temporary injunc-
ticn in the Court below, the Defendants in error contended
that without a statutory authority no action could be main¬
tained to enjoin the collection of an illegal tax, but that a
part\' who claimed to be injuriously affected by it should be
left to his remedy at law; and that Section 253, of Chapter
80, of the General Statutes of this State, could only be con¬
strued to allow an injunction where the tax to be enjoined
was against propertj^ not subject to taxation, and where the
tax was levied for an an unauthorized purpose.
We think that the learned counsel w^as ^mistaken, both in
his construction of the Statute, and in his ideas of the gen¬
eral powers of a Court of Equity.
We are aware that the Supreme Court of the State of
illinnis has held that a Court of Equity ought not to inter¬
fere by injunction, to restrain the collection of an illegal tax,
but that the injured party should be left to his remed)' at
law. We believe that the Supreme Court of Iowa has also
partially fdlowed this doctrine.
With the exception of these two States, we can safely
assert that the current of authorities, conceding and sustain¬
ing the right and propriety of the interference of a Court of
Equity to restrain the collection of an illegal tax against
real estate, is nearly unbroken.
Blackwell on Tax Titles, in his chapter on 'Murisdiction
and Eemedies," has collated many of the auth^ritics on tb's
subject, and on page 485, 2d edition, says:
10
"Prior to the sale, no one has a vested interest in the pro-
"eeeding, save the Government^ to the extent of the tax; and
"where power to levy the tax exist«, but the proceeding to
"collect it is illegal^ the exercise of a speedy restraining pow¬
der furnishes the State with notice of the illegality, and
i^cnables the Government to re assess the lax, and enforce the
"collection in a legal manner. If, on the contrary, the tax
"itself is illegal, the State has no right to harass her citizens
"by pr< ceedings to enforce its collection.''
Black well on Tax Titles, 2d Edition, page 4M et seq.
Burnett, vs. Cincinnati 3, Hammond (Ohio) 71.
Hi an vs. City of Madison, 9, Wis., 402.
Knowltoii vs. Supervisors of Bock Co., 9, Wig., 410.
In the case of a tax agaii st personal propeHy, Courts ot
Equi ty have sometimes decided not to interfere by an inj nnction,
unless there were allegations in the bill that the acts complain¬
ed of would in an extraordinary manner prejudice the plain¬
tiff, or that the parties complained of would be unable to re"
spond in d^images for the injury, or that a multijdicity of suits
would be avoided. But in those States where this distinction
is drawn between the case of a tax on real property and one
on personal proj^erty, the party aggrieved would have a
much more ample remedy at law than in this State. The
Legislature of Kansas have abolished the writ of "certiorari,"
In most of the other States this writ is allowed. In the case
at bar, if a writ of ceitiprari could have been sued out by
the Plaintiff in error, the action of the Board of Appraisers
might have been reviewed by this Court, and, if found illegal
and without jurigdiction, set aside and reversed.
Again, the State of Kansas denies the Writ of Beplevin for
propert}' taken for a tax. It will be found that there is no
such restriction and abridgment of this right of Beplevin in
those Slates, where they deny the power and impropriety of
interference of a Court of Equity to "cstrain the collection of
m
a tax on personal property. Had the Plaintiff in error the
right to rejilevin any property that might be seized by the
officer for the tax so levied against it, and not limited to an
action of tresspass, the judgin nt in which, in favor of Plain-
tid, might be worthless, it Would never Lave taken the trou¬
ble to invoke the equitable aid of the Court, hut would have
been content to pursue its legal remedy.
To compensate for the abolition of the Writ of Certiorari,
and the restriction to the right of replevin, the Legislature
have wiscl}^ ab lished the distinction betvveen the case of a
tax on personal and on real estate, in the matter of interfer¬
ence by a Court of Equity; and have at thi> same time in
unmistakablelanguaL^e asserted that i he doc trine of ihe Illinois
Supreme Court shall not prevail in the State of Kansas.
Sec. 253, Chap. 80, General Statutes, 1868.
The Plaintiff in Error submits that it ha» shown the law,
under which the appraisal of its property was had, and which
was the foundation of the tax sought to be enjoined, to be an
unconstitutional one; also, that essential requirements of this
law which were made for the protection of the interests of the
railroad companies, were disregarded by the Board of Ap¬
praisers and Assessors, in their proceedings.in the valuation
of Plaintiff's property : in either of which cases the tax in
question is an illegal tax, which the District Court has the
power to enjoin by the express terms of Section 253, above
cited.
J.be Plaintiff in Error further submits, that the inherent
powers of a Court of Equity are sufficient, without the aid of
Section 253, to authorize its int -rference by injunction in the
case at bar.
FOUETH.
Is the Plaintiff in Error entitled to the relief prayed for in
its Petition ?
17
To answer this we will brieñy giv^e a resamtf of our argu¬
ments :
1.
Chapter 124, Laws of 1869, under which ihu property of
the Plaintiif was valued, an«"! the apportionment made to the
County of Bourbon, and which was the basis of the tax sought
to be enjoined, is in conflict with the Constitution of the State
of Kansas, and void.
It violates the rule of uniforniity by prescribing a mode of
assessment and valuation of railroad property, different from
that of oth^r property in the same taxing districts.
It also violates the rule of uniformity by providing for the
assessment of property without the taxing district, even to
the assessment of ])roperty, both real and personal, lying in
another State.
b.
In giving to the railroad companies and Auditor of State
a right of appeal to this Court from the appraisment of the
Board of County Clerks, it attempted to give to this Court
a jurisdiction unwarranted by the constitution.
And this portion of the law in question having been ad¬
judged unconstitutional by this court, and being plainly a
pro\ ision upon which the other provisions of the law were
dependent, and it being evident that the Legislature would
not have passed the one without the other, the whole law
must fall.
18
II.
Essentia! requirements of the law in question, and which
were provided for the protection of the interests of the rail¬
road companies, were not complied with in the proceedings
by which the property 0/ Plaintiff was valued and assessed»
a.
No notice of the time and place of the meeting of the
Board was given to the Plaintiff in the Error.
b.
No notice of the time and place of the meeting of the
Board was given to the County Glerk of Cniwford county,
nor was he present at such meeting.
c.
The Deputy Clerk of Miami county was admitted as a
nember of, and participated in the proceedings of the Board,
in the place of the County Clerk.
III.
Either Section 253 of Chapter 80, General Statutes 1868, or
the well settled law of the Powers and Jurisdiction of Courts
of Equity, is ample authority to the Plaintiff for seeking its
relief in the form it has chosen, instead of confining itself te
an inadequate and restricted remedy at law.
19
In conclusion, we beg leave to remind the Court that we
are here representing one of a class, which is often the sub¬
ject of both legislative and popular injustice.
I
The desire to court the favor of the people, who aro noto¬
riously hostile to corp )rations, ofttimes so blinds the law mak¬
ers as to cause them to overlook the plainest requirements of
the ill Ildamen tal law.
Similar reasons also induce those, to whom the Legislature
have entrusted the power of taxation, to so impose the bur¬
den upon the propert}^ of corporations, that their friends and
neighbors may bear less than their fuir and equal proportion.
To the Courts alone can we look for protection against this
inj list i ce-
While notonW willing, but desirous to bear our just and
equal share of the burdens imposed for the support of the
Gov ernment, we claim the right to refuse the payment of a
tax so unjust and inequitable as the one sought to be enjoined
in the case at bar; a tax that was levied upon a valuation of
the projierty of the Plaintiff, double that placed upon other
similar property in the State, and much larger than the valu¬
ation of the property of individua's in the County of Bour¬
bon : upon a valuation made by an illegally constituted an I
organized Board of Appraisers ; made, too, without the ob¬
servance of those requirements of the law, that were enacted
as safeguards to the interests of the Plaintiff in Error : and
all this under color of an unjust and unconstitutional law.
We respectfully submit that the District Court erred in
refusing the temporary injunction prayed for.
PEATT & BLAIE,
Attorneys for Plaintiff in Error.