Knudson v. Linstrum , 233 Iowa 709 ( 1943 )

I concur in the dissenting opinion of Justice Smith, but, because I believe this law also violates section 6, Article I of the Iowa Constitution in that there is no relationship between the purposes of the law and the classification, I desire to state my views.

Chapter 202, Acts of the Forty-ninth General Assembly provides that in cities of more than 125,000 population, an examining board will be created "to give an examination for the positions of city assessor and deputy assessors." This board shall consist of one "qualified person" selected by the city council, one by the board of supervisors, and one by the school board. It is not stated that members of this examining board shall be qualified electors of the city or county, but the duty of this board is to conduct an examination covering the assessment of property and related subjects and to submit the list of those who pass the examination with a grade of seventy per cent to the city council, the board of supervisors, and the school board. Thereafter, the city council, the board of supervisors, and the school board meet and appoint a city assessor from this list. The majority vote of the members present of the heads of each separate taxing body counts as one vote toward the selection of a city assessor. The city assessor then takes office for a six-year term and he appoints ten deputies who have successfully passed a somewhat similar examination conducted by the examining board. A board of review, consisting of five members, is then selected by the three taxing bodies in the same manner that these bodies select the assessor. The terms of the members of the board of review are six years each. The duties of the assessor and board of review are in general the same as those duties now performed by all assessors and boards of review in Iowa. The act provides that the three taxing bodies shall determine the number of deputies and other personnel of the assessor's office, and the compensation to be paid the assessor, the members of the board of review, and all other employees, and it further provides that each of the three taxing bodies shall contribute one third of the amount required to pay all of said salaries and expenses.

By section 23 of the act, an aggrieved taxpayer can appeal to the board of review only by means of a written protest confined to one or more of five grounds. These grounds include that the assessment is not equitable; that the property is assessed for more than the value authorized by law; that the property is not assessable; that there is error in the assessment; and that there is fraud in the assessment. The board of review is given until August 1st to act upon protests in its hands, but undisposed-of protests are on that date "automatically overruled." Section 16.

From this summary of the act it will be seen that this law makes radical changes in the assessment and review machinery in cities of more than 125,000 population. The assessor, who in all other cities is appointed by the city council, is, under this act, selected by the city council, board of supervisors, and school directors. The assessor, who in all other cities is paid from county funds, is, under this law, paid one third from city funds, one third from school funds, and one third from county funds. The board of review created by this law is entirely new. The board of review, which in all other cities is composed of elected city officials, is, under this law, appointed by the city council, board of supervisors, and school board. It will be observed that, under this law, one third of the appointive power of the assessor and board of review, namely, the board of supervisors, is controlled by persons who are not residents of the city. Another third is controlled by the school board. The act seems to assume that there will be but one school board in the city, though obviously there could be more than one. The boundaries of city school districts frequently extend into rural areas.

The taxpayer's rights also change somewhat under this law. The taxpayer is confined to the enumerated grounds of protest. It is true that in general these grounds follow the ordinary grounds which a taxpayer may assert before all other boards of review in Iowa, but it is doubtful whether the taxpayer could, under these enumerated grounds, assert that an assessment is illegal though not fraudulent, and there does not seem to be any provision whereby a taxpayer could, under these grounds, question the authority of the person making the assessment. The undisposed-of protests are automatically overruled, under this law, on August 1st, whereas this court has held that the time when other local boards of review shall adjourn is directory only. Hawkeye Lumber Co. v. Board of Review, 161 Iowa 504,143 N.W. 563.

The validity of this statute is assailed on the ground (among others) that it violates section 6, Article I, of the Constitution of the State of Iowa, which provides as follows:

"All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms shall not equally belong to all citizens."

It is elementary that a law that deals with the assessment of property for general tax purposes is a law of a general nature. Our inquiry, then, is whether this law of general nature has uniformity of operation. Uniformity of operation does not mean that the law must operate upon every citizen alike. A law is uniform if it operates alike upon all within a reasonable classification. If the classification is not reasonable, but arbitrary, then there are others, who are outside the arbitrary classification, upon whom the law does not operate, and the law is unconstitutional as not uniform in operation. So our inquiry is narrowed to a determination of whether the classification embraced in this law is a reasonable classification. Population may be a proper basis of classification. When it is a proper basis, then the law, operating within a certain population classification only, is a law of general nature with uniform operation within the constitutional provision. State ex rel. Welsh v. Darling, 216 Iowa 553, 246 N.W. 390, 88 A.L.R. 218, and cases therein cited. The act, by its terms, is applicable only to cities having a population of more than 125,000. It is a matter of which judicial notice will be taken that the city of Des Moines alone has a population of 125,000. The mere fact that but one city at present meets the statutory requirement is not fatal to the validity of the act. The general rule is that when population is used as the basis for classification it must have a reasonable relation to the purposes and objects of the legislation. The rule is well stated by Justice Stevens in the case of State ex rel. Welsh v. Darling, 216 Iowa 553, 555,246 N.W. 390, 391, 88 A.L.R. 218:

"Classification, to meet the requirements of the Constitution, must be based upon something substantial — something which distinguishes one class from another in such a way as to suggest the reasonable necessity for legislation based upon such classification." (Citing a long list of cases.)

In 12 Am. Jur. 169, 170, section 489, it is stated:

"It is a mistaken idea that because classification on the basis of population is sustainable in respect of legislation on certain subjects, it may be appropriate for all purposes of classification in legislative enactments. Such a basis for classification must have a reasonable relation to the purposes and objects of the legislation and must be based upon a rational difference in the necessities or conditions found in the groups subjected to different laws. If no such relation and differences exist, the classification is invalid. For example, since there is no relation between a person's fitness for jury service and the size of the county in which he resides, a discrimination in a statute controlling jury service based upon the population of the county involved is invalid."

Turning now to chapter 202, I fail to see any relationship between the population classification and the new assessment and appeal structure that this assessor law provides. It may be a wholesome thing to have the board of supervisors of the county a part of the appointive power of the assessor's office, since the county always bore the burden of paying the assessor's salary. But, why is this a good thing only in cities of 125,000 population? On the other hand, it may be right and proper to have the city pay part of the expense of assessment, for the city council appointed the assessor. But, why is this right and proper only in cities of 125,000 population? Perhaps the school board, the taxing body that usually certifies the highest levy, should have a voice in the appointment of the assessor and the board of review, and perhaps it should bear part of the burden of paying these officers. But, why should this be true only in cities of 125,000 population? No reason suggests itself why all these changes in the appointive power and the assessor's office are rendered necessary by a dense population center. Why should a heavy population make it necessary to lodge a part of the appointive power in persons who are not residents of the city? Why should the school district have a part of the appointive power in large cities only? And why should the school district pay a part of the assessment expense and board of review expense only in large cities?

As we have seen, the taxpayer's right under this new law is somewhat curtailed. But, why should the protesting taxpayer's rights be curtailed in any manner in a large city? It is significant that, upon appeal from the board of review, no taxpayer can assert any ground that was not urged before the board of review, and therefore it is important that all taxpayers be given the same right to urge the same grounds of protest before boards of review.

I fail to see how it can be said that these changes in the assessment and review laws of Iowa will aid in the handling of the peculiar assessment problems caused by a heavily populated community. It is not enough that these laws will enable the better handling of assessments and review in the large city. In order to determine whether the classification is reasonable, we must find that the law is designed to facilitate the handling of the assessment problems caused by the dense population of a large city. The classification of population must bear a reasonable relation to the law.

We all know that there are assessment problems and review problems present in a large city that are not present in a smaller one. It would seem that the main problem caused by the high population would be a matter of volume. The population classification would, quite clearly, be a reasonable basis upon which to enact legislation which would give to the large city more local boards of review, or more assessing officers, or additional salary for the personnel.

This law appears to be the Iowa Legislature's first attempt to change the general assessment and review laws of Iowa by a statute that will not have state-wide application. Counsel for appellee in their brief do not refer us to any law of any other state, or any decision of any other state, where, under like constitutional provisions, a similar law was passed or upheld by the court of any state. Indeed, counsel for appellee cite but five cases in their entire brief in defense of all the constitutional attacks made against this law. The five cases are all Iowa decisions. They are: State ex rel. Welsh v. Darling,216 Iowa 553, 246 N.W. 390, 88 A.L.R. 218; Loftus v. Department of Agriculture, 211 Iowa 566, 232 N.W. 412 [appeal dismissed283 U.S. 809, 51 S. Ct. 647, 75 L. Ed. 1427]; Eckerson v. City of Des Moines, 137 Iowa 452, 115 N.W. 177; Tuttle v. Polk Hubbell,92 Iowa 433, 60 N.W. 733; Haskel v. City of Burlington, 30 Iowa 232. None of these cases is authority for the proposition that the population classification here attempted will support a law that changes the general tax statute.

The decisions of other jurisdictions show that the courts have been rather quick to strike down, as unconstitutional, such laws, applicable only to large cities. Space will permit only a brief reference to these cases, but it is significant that many other states have one or two large cities and the courts have not permitted such changes in the general tax laws applicable to those cities only.

The California Supreme Court held a law changing the manner of the publication of the delinquent tax list, applicable only in Los Angeles county, unconstitutional. See Consolidated Printing Publishing Co. v. Allen, 18 Cal. 2d 63, 112 P.2d 884.

A three-judge federal court, with the Supreme Court of the United States affirming, held a Michigan law creating a county board of review, applicable only to Wayne county where Detroit is situated, was unconstitutional. See Great Lakes Steel Corp. v. Lafferty, D.C., 12 F. Supp. 55, affirmed Wayne County Board of Review v. Great Lakes Steel Corp., 300 U.S. 29, 57 S. Ct. 329,81 L. Ed. 485.

The Supreme Court of Wisconsin held a law eliminating publication of the delinquent tax list and providing only for a published notice of sale, applicable only to Milwaukee county, was unconstitutional. See Pedro v. Grootemaat, 174 Wis. 412,183 N.W. 153.

The Supreme Court of Kentucky held that the high population of Louisville afforded no reasonable classification upon which to base a law, applicable only to Louisville, providing for monthly advancement of salary and expenses to the city assessor (James v. Barry, 138 Ky. 656, 128 S.W. 1070), or providing for registering of motor vehicles by the state tax commission employees in Louisville only (Nuetzel v. State Tax Commission, 205 Ky. 124,265 S.W. 606), or providing for the appointment of the city alcoholic-beverage administrator by the State Tax Commissioner of Revenue in Louisville only (Chandler v. City of Louisville,277 Ky. 79, 125 S.W.2d 1026).

For other cases involving the same question, see, Gaylord v. Hubbard, 56 Ohio St. 25, 46 N.E. 66; Felts v. Linton, 217 Ky. 305, 289 S.W. 312; Douglass v. Watson, 186 S.C. 34, 195 S.E. 116; State v. Dixon, 215 N.C. 161, 1 S.E.2d 521; Droege v. McInerney,120 Ky. 796, 87 S.W. 1085; Quesinberry v. Hull, 159 Va. 270,165 S.E. 382; Raymond v. Township Council of Teaneck,118 N.J. Law 109, 191 A. 480; Stevens v. McDowell, 151 Kan. 316, 98 P.2d 410. See, also, 12 Am. Jur. 151, section 481.

All of these cases were decided under constitutional provisions similar to ours, forbidding nonuniform legislation. In each of them the courts held the population classification afforded no basis for the law, and the statute in each instance was held unconstitutional.

To uphold the reasonableness of this classification of 125,000 population to do the things this law purports to do is to open the door for the worst kind of class legislation. If 125,000 population can be made the basis upon which cities are to lose two thirds of the appointing power over such important offices as assessor and boards of review, then it can be made the basis upon which they lose all power to so appoint. If one third of the appointing power can be lodged in persons who are not residents of the city, then the full appointing power can be placed outside the city. The reasoning that supports this law would uphold the right of the legislature to pass a law transferring to the state tax commission the duty of assessment and the power of review in large cities.

The legislative history of this law shows that it was introduced by the senator from Polk county and it passed both houses without a dissenting vote, and, presumably, without debate. It is clear that Des Moines wanted the law. It was not enacted after committee study or deliberation. It is what some of the courts call "courtesy legislation." Des Moines should take care lest a future legislature use its population as a basis upon which to predicate more special legislation that perhaps it would not want. We should not here uphold the law by a "courtesy decision." The too-ready resort to the legislature to enact a palpably special law to cure local ills should be discouraged. The departure from the constitutional admonition is fraught with danger. The classification of 125,000 that begins life here, as a matter of courtesy, will remain as authority for the imposition of other special laws. I would reject such a lax view of the constitutional provision as is demonstrated by the majority opinion and insist upon its scrupulous observance. The force of the majority opinion is a ruling that the legislature had the right to force this law upon the citizens of Des Moines if not one single citizen wanted it. I am unable to concede that such power is lodged in that body under the Constitution of Iowa. I would reverse.