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thereof. It was provided that after the board had raised or lowered the assessment of any county in accordance with the percentage shown by the tabulated statement thereof it should give notice of such action to the county judge, that he might appoint not exceeding five witnesses to appear before the board and testify under oath in reference to its action; and that then the board should revise its action or not, as it might think just and proper. This latter act was amended by an act approved May 27, 1890 (1 Acts 1889-90, p. 170, c. 1903), by which it was provided that the county judge and county attorney, as well as the county clerk, should swear to the correctness of the tabulated statement as to sales; that the board should have authority to obtain and use any other evidence of values, and whether or not the property conveyed had been assessed at a greater per cent. of its actual value than in cases where property had not been conveyed; that the percentage at which property as to be equalized should be 70 per cent.; and that the per cent. to be added or subtracted in equalizing assessnients of personalty should be the per cent. added to or subtracted from the assessment of lands alone.
Thus stood the law when the Constitution of 1891 went into force. It was in quite an inconsistent shape. The taxpayer was required to give his property in under oath at its fair cash value; the assessor was required to swear that he would assess it at that value, to so assess it; and, before he could get his pay, to swear that he had so assessed it; and the supervisors were required to swear that, if they found that the assessor had not so assessed it, they would correct his error, and to so assess it. On the other hand, the Board of Equalization was required to equalize it in masses at 70 per cent. of its fair cash value. That Constitution was a radical departure from the Constitution of 1850 in its provisions in relation to taxation. The former had few, if any, provisions on that subject. The latter had quite a number. Amongst them was one (section 172) prescribing the value at which “all property not exempted from taxation” should be “assessed for taxation,” and a criterion of such value. That value was the "fair cash value," and that criterion was “the price it would bring at a fair voluntary sale.” As to the effect of this constitutional provision on existing law, Judge Day, in the case of Louisville Trust Co. v. Stone, 107 Fed. 305, 46 C. C. A. 299, said:
"It established a rule for taxation inconsistent with the prior statutes, and must be taken as repealing those statutes which are in conflict with the constitutional provisions."
This could only have had reference to the provisions of the act of 1888 as amended by the act of 1890, for they were the only prior statutes prescribing a different rule, and therefore inconsistent or in conflict with that provision. It would seem, however, that it did not repeal those statutes in toto, but simply substituted a different standard of equalization, to wit, the fair cash value, instead of 70 per cent. thereof. This was so held by the Court of Appeals of Kentucky in the case of Louisville R. Co. v. Com. (Ky.) 49 S. W. 486. Judge Paynter there said:
"The act creating the Board of Equalization and Assessment is not in force in so far as section 172 of the Constitution and section 4028 of the Kentucky Statutes are in conflict therewith. In other words, the Board of Valuation and Assessment cannot equalize except upon a basis of the cash value of the property assessed."
The next Legislature after the adoption of said Constitution enacted a comprehensive law on the subject of revenue and taxation, which went into force November 11, 1892. Acts 1892, p. 277, c. 103. It contained a general provision (section 4020, Ky. St. 1903) to the effect that all property in this state not exempt from taxation should be assessed at its fair cash value, estimated at the price it would bring at a fair voluntary sale. The special provisions therein in regard to the taxpayer, the assessor, and the board of supervisors were substantially the same as in the said act of May 17, 1886, save that in each instance it was the fair cash value, estimated at the price it would bring at a fair voluntary sale, that the property was to be valued in assessing it; that the oath of the taxpayer was to be in writing, and signed by him, and the assessor was required to read it over to him before signing it, and to make oath beforehand that he would administer the prescribed oath to him, and afterwards that he had done so; and a penalty was prescribed for the assessor violating this requirement, and the taxpayer was made liable to punishment for false swearing if he made a false statement in his oath. No provision was contained in this act in relation to the State Board of Equalization.
And finally came the act of March 29, 1902 (Acts 1902, p. 281, c. 128). It, too, is a comprehensive one on the subject of revenue and taxation. It contains all the provisions of the acts of May 17, 1886 (1 Acts 1885–86, p. 110, c. 1233), and November 11, 1892 (Acts 1891-93, p. 277, c. 103), hereinbefore referred to, but it goes beyond them in that in article 16 thereof it covers the ground of a State Board of Equalization-the same covered by the acts of May 10, 1884, and May 4, 1888, as amended by the act of 1890. This article consists of the same provisions as the act of May 4, 1888, as so amended, save that as to the qualifications of the appointed members of the board it is provided that no person should be eligible to appointment who was under 30 years old, and that he should be a housekeeper, and the owner of real estate located in this state. Like the act of May 27, 1890, it provides that the board shall equalize assessments at 70 per cent. of fair cash value. Of course, in so far it is a violation of said constitutional provision. But in it we have a continuance of the legislative inconsistency of requiring the taxpayer and one set of officials to value property in assessing it for taxation at its fair cash value estimated at the price it would bring at a fair voluntary sale, and another set of officials to equalize the primary assessments thereof on the basis of 70 per cent. of the fair cash value of the property assessed.
Such, then, has been the legislation in this state since before the Constitution of 1850 as to the value at which and the persons by whom property, assessments of which have since May 10, 1884, been subject to equalization by the equalizers, should be assessed. The only period of time that there was valid legislation in existence providing for the assessment of said property at less than its full and fair or fair cash value was from May 4, 1888, the date when the second act in relation to the equalizers became effective, and September 28, 1891, the date as of which the present Constitution took effect. During this period the legislation, so far as it related to the primary assessments by the assessors and correction thereof by the supervisors, required, as it has always required, that they should be at the full and fair or fair cash value of the property assessed. It was only the legislation in relation to the equalizers requiring them to equalize said assessments after such correction, first at 69 per cent, and then at 70 per cent. of its fair cash value, that provided for the assessment of said property at less than its full and fair or fair cash value. Said legislation was regulative in its character. It is evidential also. It indicates that, though the legislation in existence when it was passed, and which had been in existence for many years prior thereto, provided said property should be assessed at its full and fair or fair cash value, it was not in fact so assessed in the aggregate at more than 70 per cent. thereof; for it is inconceivable that the Legislature would have provided for an equalization on the basis of 70 per cent. if said property was then being or had theretofore been assessed in the aggregate at a greater percentage of its full and fair or fair cash value. This indication that said property had not theretofore been fairly assessed is borne out by a statement of the Court of Appeals of Kentucky through Judge Bennett in the case of Spalding v. Hill, supra, decided three months before the passage of said legislation, as to the necessity which caused the passage of the previous act of May 4, 1884. It is in these words:
"It is the settled doctrine of this state that for the purpose of taxation property must be assessed according to its true value: that equality of burden is essential to the correct administration of the government. But it is a fact known by all that for years past the grossest inequalities have existed in the values fixed upon all kinds of property by the county assessors, and that the county boards of supervisors have failed to correct the evil. In some counties it is said that assessors secure their election by pledges made to assess the property in the county, or certain kinds of it, at a low value. In creating the State Board of Equalization the object was to correct this evil, and to have the assessment of taxes in the several counties equalized according to the value of the property therein, so that the state government might be supported by just and equal taxation."
Further, there is in the act of May 4, 1888, a note of helplessness and despair, to wit, that it was regarded by the Legislature that it was well-nigh impossible by mere legislation, no matter how stringent, to secure an assessment of said property at its fair cash value. It is hard to understand why it was not provided that the equalizers should exercise a supervision over the action of the assessors as corrected by the supervisors, and bring the assessment of each class of said property in each county up to its fair cash value, and in that way bring about an equalization on any other idea than that it was felt that this could not readily be brought about by mere legislation.
So forcible is the evidence thus afforded as to these two matters, confirmed, to a certain extent, as to one of them, by the opinion of the Court of Appeals of Kentucky, through Judge Bennett, that it seems that it should be accepted as conclusive in regard thereto. This being so, the question which we have to determine, to wit, as to whether said property was assessed, after it had been equalized, for the year 1902 at its fair cash value, or at not more than 80 per cent. thereof, may be put in another form. It is this: Had section 172 of the Constitution of 1891 and the stringent provisions of the act of November 11, 1892, been able, by the year 1902, to accomplish that which the legislation prior to the act of May 4, 1888, had been unable to accomplish, to wit, to secure an assessment of said property at its fair cash value? Had those laws, by that time, become written in the inward parts of taxpayers and assessing officials, so as to bring about a change in their settled habit in the matter of assessing property for taxation-so settled that the Legislature felt forced to recognize it—a change from the habit of assessing at 70 per cent. of fair cash value to the habit of assessing at full and fair cash value? As to such a great change being thus brought about one cannot help but be sceptical, and the aid which this historical survey brings to the solution of the question in hand is in inducing this attitude of scepticism towards the claim that said property was assessed for the year 1902 at its fair cash value. This attitude is strengthened by the evidence as to how relative to fair cash value said property was assessed, after equalization had, for the years 1893, 1891, 1895, and 1896, which was subsequent to the taking effect of the Constitution of 1891 and the act of November 11, 1892. It consists of the affidavits and depositions of L. C. Norman, auditor for 1893, 1894, and 1895, and S. H. Stone, auditor for 1896, and the affidavits of J. S. Phelps, an equalizer for 1893, 1894, and 1895, John S. Murray, an equalizer for 1894, and L. C. Pritchard, Hancock Taylor, and Ben D. Ringo, equalizers for the years 1895 and 1896. These seems to be all the surviving members of the State Board of Equalization for those years. There is no other evidence bearing upon its action as to those years. It is to the effect that said board equalized the assessments of said property in accordance with the requirement of said statute of May 4, 1888, as amended by the act of May 27, 1890, the same as if it had not been affected hy said constitutional provision and act of November 11, 1892; i. e., at 70 per cent. of its fair cash value. Hancock Taylor states that SO per cent. of the prices at which the real estate sold according to the reports of the county clerks was assumed at its fair cash value, and the assessments were equalized on the basis of 70 per cent. thereof. As to the years 1897 and 1898 the evidence is not uniform. The question as to those years was involved in the case of Louisville Trust Co. v. Stone, supra, and in the opinion therein all the evidence introduced in that case bearing on that question is fully set forth. Some of it has been introduced herein. The conclusion of the court as to the effect of that evidence is binding upon this court. 'Though it denied the complainant therein the relief sought, it did not do so because its conclusion in regard thereto was not that said property had been assessed after equalization had for those years at its fair cash value. It was impressed by complainant's contention that it had not been. In referring thereto Judge Day said, "There is much force in this argument." Its conclusion was simply that complainant's contention had not been made out "by the convincing proof required.” As to the years 1899, 1900, and 1901, there is no evidence directly bearing thereon as to how, relative to value, said property was assessed after equalization had. But though, because of the conclusion in Louisville Trust Co. v. Stone, as to the years 1897 and 1898, and the absence of direct evidence as to the years 1899, 1900, and 1901, we cannot, so far as our investigation has thus far progressed, take position as to how said property for said years was assessed after equalization had, the evidence as to the years 1893, 1894, 1895, and 1896 is sufficient to warrant the conclusion that for those years it was so assessed at not more than 70 per cent. of its fair cash value. This fact we say strengthens the attitude of scepticism towards the claim put forward herein that for the year 1902 said property was assessed after equalization had at its fair cash value, induced by the historical survey we lave made.
We are warranted, therefore, in entering upon a consideration of the evidence bearing upon the question as to the valuation at which said property after equalization had was assessed for that year from this standpoint of incredulity. That evidence, in our Cpinion, shows beyond question that it was so assessed at not more than 80 per cent. of its fair cash value. It is possible that the assessments have been worked up 10 per cent.—that is, from 70 to 80 per cent.—but certainly not higher than 80 per cent. That this is so results from a comparison of the total assessments of said property after equalization had for the year 1902 with the year 1891. However it may have been after the latter year because of said Constitution and act of November 11, 1892, it is certain that for said year said property was not assessed after equalization had at more than 70 per cent. of its fair cash value. The then existing law, as to whose validity there can be no question, required that assessments should be equalized on a 70 per cent. basis. There is no evidence tending to rebut the presumption that the law was complied with in this particular. L. C. Norman, auditor for that year, testified that it was. In the report of the equalizers for the year 1896, is this answer to certain criticisms of a "few public speakers and newspapers of the state"-evidently made in the campaign in the fall of 1895 for state officers—to wit:
“The principal charge brought against this board, and to which it objects, is, in effect, that 'unreasonable and unlawful additions have been made to the assessed valuation in the state, that revenue may be created to refill an empty treasury. The facts and figures disproving any such charge are these: For the years 1889, 90, 91, and '92—the last four years under the law which requires all real estate to be assessed at 70 per cent. of its 'fair cash value'—the average equalized value of lands in this state was $237,888,310. It will be admitted that lands are very rarely, if ever, either assessed or equalized for taxation at more than the law requires. Then it is safe to assume that the average equalized value above given was not greater than 70 per cent. of the fair cash value of lands in this state. Now, if $2:37,888,310 was only 70 per cent. of the average 'fair cash value of said lands for the years 1889, 90, 91, '92, then it necessarily follows that the average fair cash value of lands for