ARK.] DICKINSON, RECEIVER, V. HOUSLEY. 25.9 DICKINSON, RECEIVER CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY V. HOUSLEY. Opinion delivered July 9, 1917. 1. TAXES— ERRONEOUS ASSESSMENT —RECOVERY.—An action may be maintained for the recovery of taxes paid under an erroneous assessment, when the collector retains possession of the same, pending the result of the litigation. 2. TAXATION — ASSESSMENT FIXED BY TAX COMMISSION— CHANGE BY COUNTY.—The assessor and county board of equalization of a 'county are without authority to alter the assessments of railroad property made by the State Tax Commission; and a judgment giving a command to those officials with respect to the assessment of that kind of property is not binding on a taxpayer in a collateral suit to recover the amount illegally exacted.
260 DICKINSON, RECEIVER, V. HOUSLEY. [130 3. TAXATION—UNIFORMITY.—Assessing officers can not be compelled to adopt a rate of assessment in a given county not in conformity with the rate of valuation fixed generally throughout the State. 4. TAXATION—RAILROAD PROPERTY — BOARD TO ASSESS.—The Act creating the State Tax Commission, held valid, in its provision for the assessment of railway property by the commission. 5. TAXATION—PAYMENT OF TAX ILLEGALLY ASSESSED—RECOVERY.— Where the county assessor and board of equalization raised the assessment of a railway company's pioperty in the county for taxation, over that fixed by the State Tax Commission, the railway company may recover back the illegal tax paid under protest. Appeal from Garland Circuit Court ; Scott Wood, Judge ; reversed. T. S. Buzbee, H. T. Harrison and C. L. Johnson, for appellant. 1. This suit was instituted in the proper forum. It is different from 30 Ark. 275 and 113 Id. 138. It is in the nature of a suit for money had and received. 2. The action of the county court in raising the assessment certified out by the State Tax Commission was illegal and void. Const., art. 16, § 5, Act 257, Acts 1909, Act 251, Acts 1911. The legislative will is supreme. The county board of equalization was without authority of law to raise the valuation certified by the Tax Commission. The power to assess railroad property is conferred upon tile State Tax Commission, and it alone has the power. 127 Ark. 349. Gibson Witt, for appellee. 1. This is merely a collateral attack upon the judgment of the United States District Court. 2. Under article 7, section 46, Constitution, only the assessor can assess property for taxation. Other agencies may be constituted by the Legislature to aid the assessor, but the assessor makes the assessment. Kirby's Digest, § 6970; 1 Desty on Taxation, p. 581 ; 49 Ark. 526; 92 Id. 493; 64 Id. 436. 2. When the Tax Commission certifies its findings of value to the assessor, its authority ends. Only the assessor can assess. The tax must be uniform and coexten-
ARK.] DICKINSON, RECEIVER, V. HOUSLEY. 261 sive with the territory to which it applies. 11 Enc. U. S. Sup. Ct. Rep. 382; 101 U. S. 153. 3. The case in 192 S. W. 202 is not parallel. The United States District Court had jurisdiction, and it can not be questioned. Only void judgments can be impeached collaterally. 46 Ark. 502. If appellant was entitled to any relief he should have gone to the Federal court. 11 A. & E. Ann. Cas. 744. The State court had no jurisdiction. 32 Ark. 676. McCULLOCH, C. J. This is an action instituted by the receiver of the Chicago, Rock Island & Pacific Railway Company against the tax collector of Garland County to recover taxes alleged to have been assessed in eXcess of the amount legally authorized, which were paid to the collector under protest. The cause was heard upon an agreed statement of facts, and the court rendered judgment in favor of the defendant, from which the plaintiff has prosecuted an appeal. The facts, as recited in the agreement, are that the State Tax Commission assessed the property of the railroad for the taxes of 1916 and certified to the assessor of Garland County the apportionment to that county of its part of the aggregate value of the railroad and the assessor of Garland County entered the same upon the tax books, but subsequently the board . of equalization raised the assessment for county purposes and road and bridge purposes 50 per cent. of the value as certified by the State Tax Commission. In other words, the State Tax Commission apportioned to Garland County the value of the railroad property amounting to $189,957, which was entered on the tax books by the assessor, but the board of equalization raised the value to $284,953, and the taxes were extended on the last mentioned valuation fixed by the board of equalization. The receiver of the company applied to the collector to pay the taxes according to the valuation made and apportioned by the State Tax Commission, but the collector refused to accept the amount and the receiver paid the full amount demanded under
DFKINSON, RECEIVER, V. HOIJSLEY. [130 Wotestond L brinn ittllsi suit ; to; recoyer ti j e aniountp.payl in excess of̀ the ametnt extended aCcordifig to the valup fixed by the State Tax. Commission. (1) It is agreed that the 'money was in the i hands •;) the- tax_ collector , at the time of the commencement of the iita 9 nd Wa's retained by him to await the final debisiOR in thc , cause, so, if it . be found . that the .amount:deiliande4 by the Collector was in exceSs of the legal amount,of hme On' the property, the plaintiff is entitled to:-reetkret; Sanders v. Simmons, 30 Ark. 275; First NatiOnatWaic Of Fbrt SMith- r.:1■T hrris,-113 -Ail. 138.. . The validity .of.the increaseof the'-asSessment is .sOught to be:sustaine&undet authority -of ..ajuittgment of the United States District- COurt for the WesterriDivi. Sion of the Eastern District. of .Arkansasran an, actionyin73 stitutéd.by !On e of the-creditors .Of) Garland C ottnW against the-. assessOr and board: of eqnalization, of that county; coMinandirig those Officers. biasseSs all prOperty county at its true value in Moner.; .Thajudgment. of. the Federal court ; was rendered ; 13y; consent ;; of _the oparties thereto._ The members H of ; She:: State ..T,a,x;;Commissiog were not parties . to thataction;,:jConceding,,Eithoutlder ciding, that a judgment.of that kind against:the assessor and board of equalization . , of the, county, was ,l2in4ing , on taxpayers ,as to the. yaliditylot the asses;smentonadeopurE suant, to, the judgment,: it : certainly . did; nothincl f gaiko, ad property : which is, under:the statute, assessable-,onlfy6hy the':State . Tax 'Commission.- The statutes,(?fildiAcatiate Acts ot] 1911, page 235) provide . that. theFpg.opertio,f railroad i expressy 'sleeping ear, telegraph, .telpplaone;F:and pipe line;' .conipapies:shalt he assessed byiAlienStgeyiTax. -Commission an ' d that -the value shall, be l appoitionedAy that commission to ; the several cOunties the1State;f4-TO§ -is; the only authority for the assessment; of t4at-ykinjclsof property, and. the statute does liot confer authorityogo the county boards . of equalization,to raise:or Jiyigglict* values : of the property' thus a ggessi es1:• Aioth-Alqigsfogor and -the board of equalization- . being withontdp,oft;akiko -alter the assessments of railroad p.ropeptyianacleakftkp
WM.] JDICKI/siSON, RECEIVER, V. HOUSLEY. 263 -ttatiY.Ta3i CoramiSSiOn, it necessarily follows that judg-td4ht r giVing.a. command to -those . officials with respe6tAb -tMfaks6Ssrnant-of -that kind r . of 'pfciperty is not bindin`g.74.- stetarpayek in a: c011ateranuit'afrecover the amountillef-gaexaeted.r:- ril D11 D . :• r.%)'j eth 413)I v We have alreadyldecided=that:assessingrbfficers Ici6t1 be comp elieti: to-adOPt i rate cof Tasse'ssment r cinr fa Wye:4 cOunty l netin[cOnf orthityfwithf the Tatezoff Valuation ,fircb7geiteral1y--(thrOUghOut ihest:Stateur,INielsohiPv..41vell, c4.m7fp127 Ark. 349;192_5S. tfil lott c lisadontendedi . h'owk r e'r, that Itheistatute-'authorim-ing assessniefitSfiof-TaifitoadtrolDefrty2.43P9thexStaliegaic Commission is i u n nconstitutional-for the reason that there is.Acia j tvvisop rr :the . .Constituoyofq . f . ,rthe ) election of a county assessor, and that it is necessarily c implied from that provisidil °that'll:1e iLegi'glidAl dâ fia ) authorize an daBaigISn leatitrn 1440Vg allY.:0:ther.40Q(WS..--4 7,ormerlyribe:,..4s-Es c ossni-cnbl oid railroad TrOpe'rty :was tnader by --the 'State egoltardifelfickaf ilfor adb lkswesSots; ecrrhposr6c11-93f-ther-GWetnor and certain other State officials, andAii3Vi`e'CA'S'iifiTittle ATcric ceuFmt SM419Ry„v:Tyartherh,-. 46-.Ark.-312 3;the constitutionality of that statute was . ass-#4gd „on the. grotmcl that it provided for a 4ifferent r methoq. of ass.ssing that character . of property frolirthataWb'hi e t d for'the assess-lia96311) . k mivatsY; generally nfi'ib6iirt....sistained thk3'OA : 6'1e Aide*. -ana iii"e'ite4"116;14 : that 'the 1.444_ 1 . 4) liaki tlirp2 oVer : to r `Cre -kt& tbid 't8'aE sgeS g , thai
iveCif iii[613 g fff, 1 , 'TheY4ndspii'WagrAirefil.',i.gigpar 7y} 'Co:. ir= 2"Wbi.ellEieP5-2/61:ik: 529 .WhaelIth'e > P m IP a rt 'A ?, g ain o de ;C p f lar c e4 th e, co n s r , t t 4 4. u ..A. t " i • o r n r a , hotyf . tha . t, me thod .f" aI t s4sTi'ng ( railroad . .13rOPe i rty.' : T& .gUbjeCt : wAk again discussed in the case of Railway v. Williams, 53 G .A.- k7.-54, and the other cases wei ,re,NpSeReid /t, o . as \ upholding that AlttjacKl ififEmn , qopent,rof frailrk J -4s the grouncir that Apck i pr j onrAy be- -assessed,- As, arrunit does-not :4IMW .411 g .jAciViYa004PsC:.P.ft:§9ArAINYa§-5-TIssteci/1a5..iin 1ToENT44npos.mt s hat2thesimoyisionrof (the . Constitution Atkrefetimcp ll toTthe , election. of a r county assessor was it4ii.emlimt vc:fi eth , od. a s ssesSi*grprt:?pery okallAin*.Tri
264 [130 (4-5) We must, however, treat the question as settled that the statute authorizing the assessment of this kind of propery by a State board created for that purpose is not in conflict with the Constitution. The increase of valuation by the board of equalization was, therefore, unauthorized and illegal, and plaintiff, having paid the amount under protest, it follows that he is entitled to recover . from the collector, who still has the funds in his hands. The judgment of the circuit court is, therefore, reversed and the cause is remanded with directions to enter a judgment in favor of the plaintiff for the amount illegally exacted as set forth in the complaint.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.