The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1898-06-29

| Guthrie, .. L. June S.-(Specldl-J-ro OF
lowing is the dissenting opinion Of Judge
McAtee Of the territorial supreme court,
in the Equalization" tax case recently
decided:
By the courtesy OF my brethren, and
the importance of the matter, would like
| to say word in the case of Wallace VS..
Bullen, before the case has gone out of
| sight and perhaps into history. 1 can
never consent Ii lay down a principle. or
consent to the approval of an interpreta-
ton of the law which I believe destroys
the Fundamental rights of citizens.
The power of taxation is the power of
destruction. 1t must be exercised with the
profoundest care, and all of the courts,
and all of the text writer's have uniformly
fully and fairly held that no power shall
be exercised to take the property of a
citizen except under express and explicit
terms of statutory authority. In this case
it is not necessary to say much. The
whole matter has been thoroughly ex-
amined in the opinion filed in the case Of
Gray VS.. Stiles.
1tGTe are Two DrOdQ Oh lIlS
law governing taxation. One is valuation,
the other is equalization. The organic
act Of this territory, as, indeed. the con-
sttution Of many of the states, perhaps
all of them, provides that taxation shall
be upon the true value Of the property
and the statutes of this territory, express
ing the spirit Of the organic act, provide
expressly and emphatically that property
shall be taxed according to its true cash
value" and in providing the method Of
taxation the statutes expressly provide
how that true cash value shall be as
certained. All Of the articles of the chap
ter upon revenue provide the method by
which the property shall be valued The
citizen and taxpayer must swear to his
property and must swear to its value. The
assessor must swear to his return, and
must swear to its values therein. He dare
not prevaricate II he does, he crimi-
nally offends. He must make his return
upon the value of the property, under
oath, under the apprehension Of criminal
reprobation and punishment, and when
the statutes have thus expressly provided
what the duty of the atx payer shall be,
and what the duty of the assessor shall
been returned by the local assessors, to
the township board, and the township
board has acted upon those individual
assessments, according to the method pre-
scribed in the statute, the duty and the
functions and the power of ascertaining
the ca sh value of the property is com
plete. Nothing further can be done in that
direction. Beyond that the board of county
commissioners of each county of the ter
ritory are charged with the function of
equalizing between the various townships,
and beyond that STILL when that ascer-
tainment has been made and the county
clerk in the discharge of his duty, has
returned the county rolls to the auditor
of the territory, there remains, under the
explicit instruction of the statute, but one
duty for the board of equalization to dis
charge. That is the duty, under the eX-
press language of the statute, of equaliza-
ton. No power is given to the terrific
rial board, nor to the boards of county
commissioners, to value property; neither
by express terms nor by any just inference
which can be drawn from those terms.
The power is the power of equalizing
alone. 1t is to reduce, to an average. to
reduce to a common standard, the valua-
tons Of the various counties as shown !
by the assessment rolls sent up from the
eountyclerks of the various counties. Il
is TO ascertain the average and to equalize
them. and il cannot be argued that be-
cause the organic act provides that the !,
property of the territory shall be valued
according to its true value for the pur-
pose Of taxation. and otbH provisions /
nave been made by the statute for the as
sessment and taxation of property, and /.
that inasmuch as it has been Intellectually /
done, that therefore the power remains I
in the eQualizing board 10 assume the au-
thority to ascertain that value No such /
power exists. Neither has any court, be- /
fore the case Of Wallace VS.. Bullen de- I
clared thac such power existed. Il was
suggested in that case that the case of /
Black ". McGonigle. l03 No. I92. made /
such determination. 1t did not. And 1 !
challenge an examination of the case.
The statute Of the state of Missouri /
charged the board of equalization and f.
the board of county commissioners not
only with the duty Of ascertaining the
value of the property. but expressly au-
thorized and directed them to do 50. and
Judge Black, in rendering the decision OF
the supreme court in that case went no
farther The board Of county commission
erS were changed and authorized. by the
statutes Of Missouri. while exercising
their duties OF equalization. also 10 as
certain the value of property That case
does not affect the present Interpretation:
does not aid in the Interpretation Of our
statute or our organic act.
But the Jurisprudence Of that state IN
another case. and II viii be conceded upon
higher authority does assert the doctrine
which I now contend for.
I; is the case OF Paul vs.. Railra-I C-,-r,
'any, 4 Dill. 3. in the United States cir
,uit cour; for the Eastern district of
Missouri. in which Judge Dillon. express
ng the opinion Of Mr.. Justice Miller Of
he supreme court Of the United states
and United States District Judge Treat.
VINO sat with him in the case, expressly
affirmed the limitation which contend
FOR upon state board OF equalization,
which was authorized TO adjust and
equalize the aggregate valuation OF the
property Of railroads The case was one
Il which the state board OF equalization
undertook, while exercising lis functions
= equalization. 20 raise the property OF
he railroad companies in Pet,is county.
rom nine thousand a mile 20 twenry-ssx
thousand dollars a mile. The opinion OF
he court declared that the law lin
Ted the functions and powers Of this
9ody 20 The work Of equalization. and
hat the raising OF The valuation OF the
-ailroad companies property amounted 70
N assumption OF the functions ard powers
u an original assessment wnich did nor
sxist In this board. and that IT'S functions
nd powers. under thai statutory provision