State Ex Rel. Stephan v. Martin

641 P.2d 1020, 230 Kan. 759, 1982 Kan. LEXIS 231

Opinions

The opinion of the court was delivered by

Miller, J.:

This is an original action in quo warranto brought by the State on relation of the attorney general against the respondent, Philip W. Martin, director of property valuation of the Kansas Department of Revenue, seeking a determination of the constitutionality of Section 1 of Chapter 373 of the 1981 Session Laws of Kansas, now K.S.A. 1981 Supp. 79-343. We will refer to it hereafter as “Section 343.” It establishes a method of assessing the value of farm machinery and equipment for the purposes of ad valorem taxation. It is challenged as being violative of Article 11, Section 1, of the Kansas Constitution. The Kansas Farm Bureau, the Kansas Livestock Association, Inc., and the Kansas Association of Wheat Growers, Inc., were permitted to intervene.

The sole issue is whether Section 343 violates Article 11, Section 1, of the Kansas Constitution.

We start our examination of this issue in light of the rule that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before a statute may be stricken, it must clearly appear that the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done. Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 472-73, 618 P.2d 778 (1980); State ex rel. Stephan v. Lane, 228 Kan. 379, Syl. ¶ 1, 614 P.2d 987 (1980).

The facts are stipulated. The Act in question, then known as Senate Bill No. 26, was enacted during the 1981 Session of the Kansas Legislature, was signed by the Governor, was published in the statute book, and became effective January 1, 1982. K.S.A. 1981 Supp. 79-343 reads as follows:

“(a)(1) The fair market value for all powered farm machinery and equipment, for the purposes of ad valorem taxation, shall be the average loan value of such machinery and equipment in its model year of manufacture, based upon nationally published guides or other trade sources, hereinafter referred to as the initial value thereof, reduced by 10% of such value per year of age from the model year of manufacture of such machinery and equipment, not to exceed a total of 80% pursuant to the following schedule:

Fair Market Model Year Value

Current model year................................. 100% of initial value as determined above

1st year following model year.......................... 90% of initial value as determined above

' 2nd year following model year......................... 80% of initial value as determined above

3rd year following model year ......................... 70% of initial value as determined above

4th year following model year ......................... 60% of initial value as determined above

5th year following model year ......................... 50% of initial value as determined above

6th year following model year ......................... 40% of initial value as determined above

7th year following model year ......................... 30% of initial value as determined above

8th year and all succeeding years following model year .......................... 20% of initial value as determined above.

“(2) The fair market value for all non-powered farm machinery and equipment, for the purposes of ad valorem taxation, shall be the average loan value of such machinery and equipment in its model year of manufacture, based upon nationally published guides or other trade sources, hereinafter referred to as the initial value thereof, reduced by 20% of such value per year of age from the model year of manufacture of such machinery and equipment, not to exceed a total of 80% pursuant to the following schedule:

Fair Market Model Year Value

Current model year................................. 100% of initial value as determined above

1st year following model year.......................... 80% of initial value as determined above

2nd year following model year......................... 60% of initial value as determined above

3rd year following model year ......................... 40% of initial value as determined above

4th year and all succeeding years following model year .......................... 20% of initial value as determined above.

“(3) The fair market value determined for farm machinery and equipment under the foregoing provisions shall be utilized in the personal property guides devised or prescribed by the director of property valuation under the provisions of K.S.A. 75-5105a, and amendments thereto, and furnished to the counties for use in valuing such property for taxation.

“(4) It shall be the duty of the county appraiser to value all farm machinery and equipment utilizing the guides devised or prescribed by the director of property valuation based upon values established under the provisions of parts (1) and (2) of this subsection except that the appraiser shall deviate from the value so established when the value assigned to such property in accordance with parts (1) and (2) of this subsection does not reflect the fair market value of the particular property involved as provided for by parts (1) and (2) of this subsection.

“(b) The term ‘farm machinery and equipment’ shall not include any passenger vehicle, truck, truck tractor, trailer, semitrailer or pole trailer, other than a farm trailer, as said terms are defined by K.S.A. 1980 Supp. 8-126 and amendments thereto.”

Two years ago this court had before it for determination the constitutionality of the predecessor of Section 343, that being K.S.A. 1979 Supp. 79-342, enacted by the legislature in 1978. In State ex rel. Stephan v. Martin, 227 Kan. 456, 608 P.2d 880 (1980) (Martin I), we declared 79-342 unconstitutional. That Act directed the county appraisers to subtract 20% from the estimated average values of farm machinery and equipment, as indicated by the 1979 Kansas appraisal guide for farm machinery and equipment prepared by the director of property valuation. The 1978 Act applied only to farm machinery and equipment “used by the owner thereof in conducting a farming or ranching operation.” It also included a statement of purpose which, in substance, was to grant tax relief to farmers and ranchers. We found that the effect of the Act was to lower the fair market value in money of farm machinery and equipment used by the owners in farming and ranching by an arbitrary 20%; that the Act created a subclass which was granted partial exemption from taxation; and that the Act destroyed the uniformity and equality in the rate of assessment of tangible personal property required by Article 11, Section 1, of our Constitution.

Chief Justice Schroeder wrote the opinion for a unanimous court in Martin I. He discussed the fundamentals underlying our consideration of the 1978 Act, including the constitutional provision, its history, the cases construing it, and the related assessment and taxation statutes. Since the same discussion is germane to a consideration of the 1981 Act, we quote at length from that opinion:

“Article 11, § 1 of the Kansas Constitution is the fundamental law against which the validity of K.S.A. 1979 Supp. 79-342 must be tested. In clear and simple language that fundamental law vests the State’s taxing authority in the legislature, stating:

‘The legislature shall provide for a uniform and equal rate of assessment and taxation, except that the legislature may provide for the classification and the taxation uniformly as to class of motor vehicles, mineral products, money, mortgages, notes and other evidence of debt or may exempt any of such classes of property from property taxation and impose taxes upon another basis in lieu thereof. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.’

“In response to the constitutional command to provide for a uniform and equal rate of assessment and taxation the legislature has enacted many statutes. Among the statutes material to a decision herein are the following:

“K.S.A. 79-501 provides:

‘Each parcel of real property shall be appraised at its fair market value in money, the value thereof to be determined by the assessor from actual view and inspection of the property; but the price at which such real property would sell at auction or forced sale shall not be taken as the criterion of such fair market value in money. Tangible personal property shall be appraised at its fair market value in money at the place where the same may be held. All such real and tangible personal property shall be appraised at its fair market value in money and assessed as required in K.S.A. 79-1439.’

“K.S.A. 79-1406 provides:

‘All property, real or personal, shall be appraised at its fair market value in money, and all real and tangible personal property which is subject to general property taxes shall be assessed at its fair market value in money as required in K.S.A. 79-1439.’

“K.S.A. 79-1439 provides in pertinent part:

‘[A]ll real and tangible personal property which is subject to general property taxes shall be appraised uniformly and equally at its fair market value in money, as defined in K.S.A. 79-503, and assessed at thirty percent (30%) thereof.’

“K.S.A. 79-503, in pertinent part, provides for the determination of fair market value in money as follows:

‘Fair market value in money shall mean the amount of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting, assuming that the parties thereto are acting without undue compulsion and that the property has been offered at the market place for a reasonable length of time. Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and such other factors as may be appropriate including but not by way of exclusion:

‘(a) The proper classification of lands and improvements;

‘(b) the size thereof;

‘(c) the effect of location on value;

‘(d) depreciation, including physical deterioration or functional, economic or social obsolescence;

‘(e) cost of reproduction or improvements;

‘(f) productivity;

‘(g) earning capacity as indicated by lease price or by capitalization of net income;

‘(h) rental or reasonable rental values;

‘(i) sale value on open market with due allowance to abnormal inflationary factors influencing such values; and

‘(j) comparison with values of other property of known or recognized value. The ratio study shall not be used as an appraisal for appraisal purposes.’

“Article 11, § 1 is probably one of the most litigated provisions of the Kansas Constitution; it has been amended three times since the original version was adopted in 1859 at the Wyandotte Convention. One of the earliest decisions by this Court interpreting the meaning of art. 11, § 1 was Hines et al. v. City of Leavenworth et al., 3 Kan. *186 (1865). Explaining the meaning of uniform and equal assessment, the Court stated:

‘Each man in the State, county and city, is equally in proportion to his property interested in maintaining the State, county and city governments, and in that proportion should bear the burden equally. There is a justice in this arrangement which commends it to the approbation of any right thinking man . . . .’3 Kan. *201-02. (Emphasis added.)

“In 1915 the Court had occasion to review many of our prior decisions interpreting art. 11, § 1. In Wheeler v. Weightman, 96 Kan. 50, 58, 149 Pac. 977 (1915) this following statement was made:

‘The foregoing decisions, covering the period of the state’s history to the year 1900, are full, clear, consistent with each other, and indubitably sound. The doctrine they announce was the one with which the people were familiar when the constitution was framed, and the work of the constitutional convention consisted principally in stating the doctrine in suitable phraseology. The essentials are that each man in city, county, and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax. The imposition of taxes upon selected classes of property to the exclusion of others, and the exemption of selected classes to the exclusion of others, constitute invidious discriminations which destroy uniformity. That the system works badly now is ground for change, but the system having been established by the constitution as a limitation on the power of the legislature, the constitution must be changed before the system can be changed.’ (Emphasis added.)

“The legislature eventually responded to the decision in Wheeler, and in 1924 an amendment to art. 11, § 1 was adopted. The amendment, inter alia, permitted classification of mortgages for taxation under the exception to the ‘uniform and equal rate of assessment and taxation.’ Attempted exemption of mortgages from taxation was the basis of the action in Wheeler.

“Here we are confronted with an unsatisfactory method of assessing and taxing farm and ranch machinery as part of the ad valorem tax plan. For the reasons hereafter assigned we must repeat now what the Supreme Court said in Wheeler: ‘the constitution must be changed before the system can be changed.’

“This Court has repeatedly held that art. 11, § 1 of the Kansas Constitution requires the legislature to provide for uniformity in the basis of assessment as well as in the rate of taxation. Uniformity in taxing implies equality in the burden of taxation. Gordon v. Hiet, 214 Kan. 690, 693, 522 P.2d 942 (1974); Northern Natural Gas Co. v. Bender, 208 Kan. 135, 143, 490 P.2d 399 (1971), cert. denied 406 U.S. 967 (1972); Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, 286, 440 P.2d 634 (1968); Addington v. Board of County Commissioners, 191 Kan. 528, Syl. ¶ 3, 382 P.2d 315 (1963).

“The foregoing cases stand for the proposition that all property which is subject to general property taxation must be valued or assessed on an equal basis. In the recent case of State ex rel. Schneider v. City of Topeka, 227 Kan. 115, Syl. ¶ 5, 605 P.2d 556 (1980), this principle is acknowledged where the Court states:

‘When the rate of property assessment is uniform throughout a taxing district, the constitutional mandate of uniform and equal taxation has been fulfilled.’

“The term ‘assessment’ as employed in art. 11, § 1 means the process of listing and valuing property for taxation. See Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, Syl. ¶ 3; Wheeler v. Weightman, 96 Kan. at 53.

“The legislature, in responding to the mandate of art. 11, § 1 of the Kansas Constitution that it provide for a uniform and equal rate of assessment and taxation, has provided that all property subject to taxation be valued on an equal basis. The equal basis currently provided by the legislature is ‘fair market value in money.’ ‘Fair market value’ has a well defined meaning in our free economy and in case law. The legislature defined ‘fair market value’ in K.S.A. 79-503 in substantially the same language as this Court has defined it, and as it is generally understood and accepted. Mobil Pipeline Co. v. Rohmiller, 214 Kan. 905, 926, 522 P.2d 923 (1974).” pp. 458-62.

The statute now before us, Section 343, applies to all powered and non-powered farm machinery and equipment. It does not require the arbitrary deduction of twenty percent of the value per se, as did the 1978 Act. It is not limited in its application because of the use of the property. Finally, it contains no express statement of purposes. Section 343 simply declares that the initial fair market value for all powered and non-powered farm machinery and equipment, for the purposes of ad valorem taxation, shall be the average loan value of the machinery and equipment in its model year of manufacture, based upon nationally published guides or other sources. Thus the “initial” value of the property is fixed by reference to the average loan value in the model year of manufacture.

What is “average loan value”? The term is frequently used in banking, finance, and sales parlance, and is commonly and widely understood. The “loan value” of an item of tangible personal property is the amount of money a lending agency will loan to the purchaser or owner of the particular item, when that item and nothing else is pledged as security for a loan. The “average loan value” of an item of tangible personal property is the average amount of money various lending agencies will loan on like items.

Americans by the millions purchase manufactured goods on credit. Directories and guides listing the various makes and models of automobiles, trucks, motorcycles, tractors, farm machinery, recreational vehicles, and other items of personal property are published annually; some are updated quarterly. Such guides customarily list the original “new” or “list” price, and the average selling price and loan value for each make and model manufactured in the last few years prior to publication, and thus serve as a reference for those engaged in buying or selling the enumerated property, or making loans thereon to owners or purchasers. Some guides give various prices — the original list price, the average retail or sales price (varying with age and condition), the average “as is” price, and the average loan value for each item. These are given not only for items that are new, but for items one or more years old. The average loan value is consistently the lowest value or price given for each item; above that are the “as is” price, the average retail or resale price, and the original “list” price.

The Spring 1980 “Official Guide” to “Tractors and Farm Machinery,” published by National Farm and Power Services, Inc., an affiliate-of the National Farm and Power Equipment Dealers Association, St. Louis, Missouri, is an example of a nationally published guide to farm machinery and equipment. It gives the following data for two 1979 model Allis-Chalmers diesel tractors (the 1979 model year being the most recent before the issuance of the Spring 1980 issue):

Model Series 7000 8550

Model Year 1979 1979

F.O.B. Factory (suggested $24,860 $68,451 list price)

Average Resale Price $21,901 $62,479

Average “as is” Price $18,352 $52,461

Average Loan Value $15,599 $44,591

According to the publisher, average resale price is computed on actual sale prices of machines as reported by dealers, and average “as is” price is computed by subtracting the average reconditioning cost from the average resale price, then deducting fifteen percent from that difference. The average “as is” price is a suggested “trade in” price. The average loan values shown throughout the guide are nearly 30% less than the average resale prices and about 15% less than the average “as is” prices. It is readily apparent that the average loan value, while having some correlation with fair market value, is not the price “a well informed buyer is justified in paying and a well informed seller is justified in accepting.” See K.S.A. 79-503.

Article 11, Section 1, of the Constitution requires the legislature to provide “a uniform and equal rate of assessment” with certain exceptions. Farm machinery and equipment are not included within the exceptions. The legislature has responded to Article 11, Section 1, with K.S.A. 79-501, which requires that tangible personal property be appraised at its fair market value in money, and by K.S.A. 79-503, which defines fair market value in money and enumerates various factors to be considered in determining that value.

Section 343 specifically and unequivocally provides that the initial fair market value for all farm machinery and equipment shall be the average loan value of that property. The initial value is thus arbitrarily fixed at “average loan value,” a value which we have seen is 15% to 30% less than various sale prices, without regard to the amount of money a well informed buyer is justified in paying and a well informed seller is justified in accepting, and without regard to the condition of the property or its sale value on the open market. All other tangible personal property, not excepted from Article 11, Section 1 of the Constitution, must have its value fixed and determined pursuant to K.S.A. 79-503. The differential treatment is obvious to the most casual observer.

Section 343 also provides for the automatic annual reduction of the initial value by 10% in the case of powered and 20% in the case of non-powered farm machinery and equipment, regardless of the actual fair market value in money. All other nonexcepted personal property, meanwhile, must be appraised annually in conformity with K.S.A. 79-503 and K.S.A. 79-1439 at its current fair market value in money. Under Section 343, neither inflation or deflation is reflected in the appraisal of farm machinery and equipment; Section 343 would completely insulate and shield this specific type of personal property from inflation. As we said in Martin 7, “to shield certain property, that is, ‘farm machinery and equipment,’ from the effects of inflation, when inflation is affecting all property, is an act of discrimination, inconsistent with art. 11, § 1 of the Kansas Constitution.” 227 Kan. at 467.

This court is acutely aware of the plight of farmers and ranchers in these recent years of drought and flood, deflated farm prices, and an ever-increasingly inflated economy. As the Chief Justice pointed out in Martin I, however, “Economic distress is no justification for ignoring the constitution.” 227 Kan. at 468.

Respondent and intervenors argue that Section 343 provides nothing more than a different method of achieving fair market value in money, and that the guide which the respondent is directed to prepare by K.S.A. 75-5105a may reflect the fair market value in money of farm machinery and equipment. No such guide had been prepared by the respondent when this case was briefed, and his official 1982 guide valuing farm machinery and equipment is not before this court. Respondent and intervenors fail to recognize, however, that Section 343 makes average loan value the fair market value of such property; the director of property valuation is required by subparagraph (a)(3) of the Act to utilize that value in devising guides furnished to the counties for use in valuing such property for taxation. Average loan value, as we have seen, is not fair market value. The legislature cannot change the inherent nature of a rose by calling it by a different name. Anything less than fair market value is not fair market value. The legislature has attempted to create a separate definition of fair market value, applicable to but one kind of property. The initial value is reduced each year regardless of economic conditions. This is clearly an attempt to create an aberrant and unequal assessment in violation of the constitutional mandate.

Respondent and intervenors also contend that even if the required reliance on average loan value does not produce fair market value, the final figures must be adjusted by the county appraisers to reflect actual fair market value pursuant to subsection (a)(4) of Section 343. That subsection, however, requires deviation by the county appraisers only when the value assigned in accordance with subsections (a)(1) and (2) fails to reflect fair market value as provided by parts (1) and (2)! Deviation is not required when the subsection (1) and (2) values fail to reflect fair market value in money as defined by K.S.A. 79-503, and as that phrase is generally understood and accepted both in our free economy and in our case law. In Martin I, language parallel to that of subsection (a)(4) of Section 343 was examined and held to be ineffective to cure the fatal error of K.S.A. 1979 Supp. 79-342, since it merely referred back to part (a)(1) of that statute which, like parts (a)(1) and (2) of Section 343, failed to provide for assessment at fair market value in money. Subsection (a)(4) does not cure the obvious defects of subsections (a)(1) and (2) of Section 343.

We have carefully considered all arguments made and all authorities cited by respondent and intervenors, but find them unpersuasive.

The legislature has attempted by Section 343 to grant tax relief by fixing a different, reduced, and discriminatory basis of assessment for certain property. The section thus violates the requirement of uniform and equal assessment mandated by Article 11, Section 1, of the Kansas Constitution. It creates an unlawful classification of personal property for ad valorem tax purposes. As announced in our interim opinion, filed earlier this year, we hold that the statute, K.S.A. 1981 Supp. 79-343, is unconstitutional and void. The respondent is ousted and precluded from acting thereunder.

Relief in the nature of quo warranto is granted.