[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 365 Plaintiffs, respectively Ada County and individual taxpayers residing therein, challenge by original writ of review (writ granted, Ada County v. Bottolfsen, ante, p. 64,97 P.2d 599) the authority of the state board of equalization to assess some 23 parcels of real estate belonging to the Oregon Short Line Railroad Company and the Union Pacific Railroad Company, intervenors, on the ground said parcels are not operating property within sections 61-113, 61-601 and 61-603 I. C. A., and that as assessed by the state board such properties are not assessed for their true value and in the same manner and equally with other property throughout the county, thereby imposing a greater burden on plaintiff taxpayers and all others similarly situated.
In limine and so far as the latter contention is concerned if and so far as the assessment by the state board is less than the full, true and correct valuation of said property should have been, relief is to be had at the hands of the state board by an increase in the valuation of the said property as reflected in the value of the mass of operating property belonging to intervenors throughout the state. In other words, if the parcels of land herein are operating property their under valuation by the state board would not be justification for assessment other than by the state board.
The state board of equalization is a constitutional board. (Art. 7, sec. 12.) The assessor is a constitutional officer. (Art. 18, sec. 6.) Thus of equal constitutional creation and authority whose duties are equally to be prescribed by the legislature. (Art. 7, sec. 12, art. 18, sec. 11.)
In territorial days certain property of railroads was assessed by the territorial board of equalization and other property by the county assessors. (Statutes of 1887, sec. 1463.)
The line of demarcation and definition of what constitutes property to be assessed by the territorial or state board of equalization as distinguished from that to be assessed by *Page 367 the county assessors has varied without uniformity or continuity of definition from time to time. (1893 Sess. Laws, p. 75, sec. 9 of the act there set forth; 1895 Sess. Laws, p. 114, sec. 1490; 1899 Sess. Laws, p. 254, sec. 16; 1901 Sess. Laws, p. 257, sec. 74; secs. 61-113, 61-601, 61-603, I. C. A.) In their present form the statutes first appeared in 1913 Session Laws as part of a complete revenue act passed that year, page 178, section 11, page 199 and section 86, page 199, section 88.
With the exception of three parcels of land which are vacant, unoccupied lots adjoining intervenors' right of way in Boise City, Ada County, 17 parcels involved are leased under or for a term of years to various coal, seed and lumber concerns; and one parcel to the United States Reclamation Service, one to a general contracting concern, and one to a stage company.
All leased parcels have erected thereon structures used for warehouse and storage purposes by said concerns. The buildings are assessed by Ada County to the lessees. The courts have recognized and sanctioned the assessment of buildings separate and apart from the land on which they are situated under similar circumstances. (Third Broadway Bldg. Co. v. SouthernCalifornia Edison Co., 132 Cal. App. 186, 22 P.2d 574;Pacific Tel. Tel. Co. v. State Board of Equalization, (Cal.)259 P. 42; Third Broadway Bldg. Co. v. Los Angeles County,220 Cal. 660, 32 P.2d 377; Central Mfg. Dist. v. StateBoard of Equalization, 214 Cal. 288, 5 P.2d 424.)
None of interveners' tracks are on these parcels of land though immediately adjacent thereto and intervenors' cars are unloaded directly into these structures. Other than certain restrictive provisions in the said leases that said properties must be used only for storage purposes and must not be illegally used, said intervenors have no control over said premises while used and occupied by said lessees. Six of said parcels since 1917 have been returned by said intervenors to the state board of equalization as in effect part and parcel of the original right of way and terminal grounds in Boise City; the other parcels were originally contained in a so-called "citizens' right-of-way" extending roughly east and *Page 368 west and parallel to intervenors' right of way through Boise City and beyond. Said citizens' right-of-way having been originally acquired by a number of citizens of Boise and thereafter held for prospective railroad purposes. 1923 said citizens' right-of-way was sold to intervenors in connection with its construction through Boise City of its so-called "main line," said intervenor Oregon Short Line Railroad previously serving Boise by a branch line from Nampa, the junction with the main line east and west through Idaho. (In re Sherman v.Citizens' Right of Way Co., 37 Idaho 528, 217 P. 985.)
While it is contended the above case approving and ratifying said sale, by implication, if not directly classified said citizens' right-of-way as operating property within the meaning of the above sections of the code, said case did not so decide or determine.
Oregon Short Line Railroad Co. v. Yeats, 2 Idaho 397,17 P. 457, construed the territorial statute of 1887 with regard to the term "right-of-way" as therein used, holding that under the terms of the territorial statute any machine shop and repair shop not situate on the right of way or grounds or other real estate of any (railroad) company or corporation (not situate on said right-of-way) should be assessed by the county assessor, and Oregon Short Line Railroad Co. v. Gooding, 6 Idaho 773,59 P. 821, construed the 1893 statute supra, thus:
"We hold in this case that the right of way, track, whether main, side, or turnouts, and all improvements and super-structures upon the right of way, and rolling stock are under the statute, to be assessed by the state board of equalization, and all other property of railroad companies is to be assessed, under the statute, by county assessors."
Chicago, Milwaukee St. Paul Ry. Co. v. Kootenai County,33 Idaho 234, 192 P. 562, construing the word "terminal" in the present statute, section 61-113, held that property acquired for ultimate terminal uses though not then so used should be classed as terminal property and should be assessed by the state board of equalization as operating property, but that where such intention was negatived such real estate should be assessed by the county assessor and held the assessment *Page 369 by the county assessor void because it included in the one assessment property correctly and incorrectly assessed by the assessor on the ground that the assessment by the county assessor was indivisible.
In a controversy between intervenors herein and appellant county the federal court (Oregon Short Line R. Co. v. AdaCounty, 18 Fed. Supp. 842) construed the above decisions as authorizing the assessment by the state board of this property as terminal facilities.
City of Pocatello v. Ross, 51 Idaho 395, 6 P.2d 481, involved solely the question of what tracks as between main line, second main line, spurs and side tracks, should be considered as the length of line within the respective taxing units within the state, thereby apportioning to them their taxable proportion on the entire mass of railroad property within the state. (Sec. 61-607, I. C. A.)
Thus none of the previous decisions of this court have passed upon the question now before us. (Oregon Short Line R. Co. v.Ada County, 18 Fed. Supp., supra, was sustained by the Circuit Court of Appeals in Ada County v. Oregon Short Line R. Co.,97 Fed. (2d) 666, justifying the assessment by the state board of equalization as terminal facilities reasonably necessary to the successful operation of the railroad, upon the definition inMinneapolis St. P. S. S. M. Ry. Co. v. Douglas County,159 Wis. 408, 150 N.W. 422, Ann. Cas. 1916E, 1199, as approved by this court in Chicago, Milwaukee St. P. Ry. v. KootenaiCounty, supra, thus holding that the property here was operating property within section 61-113, I. C. A., and also that the assessment by the county assessor was void as indefinite. While reference was made in both federal decisions to sections 61-113 and 61-603, said sections were not by said opinions nor in Chicago, Milwaukee St. Paul Ry. v. KootenaiCounty, supra, analytically compared and construed together which we believe they must be.
In the statute as originally passed by the 1913 legislature, now section 61-113 was section 11, page 178, 1913 Session Laws in article 1, entitled by the legislature "Property Subject to Taxation, Exemptions, Definitions, Lien." Sections 61-601 and 603 were respectively sections 86 and 88, *Page 370 page 199, article 5, entitled by the legislature, "Assessment of Railroads, Telegraph, Telephone and Electric Current Transmission Lines."
Section 61-113, I. C. A., is inclusive as to the property to be assessed by the state board of equalization and exclusive as to the property to be assessed by the county assessor. Sec.61-603, I. C. A., is inclusive as to property to be assessed by the county assessor and exclusive as to property to be assessed by the state board.
The difficulty presented herein arises by the fact that the phrases, clauses, and terminology of sections 61-113 and61-603, I. C. A., are not identical but tend to be contradictory and confusing.
Separating section 61-113, into its constituent clauses as confined to railroads, as we are justified in doing (In reSpeer, 53 Idaho 293, 23 P.2d 239, 88 A.L.R. 1086), we have the following as defining operating property (underscoring ours): (1) The term "operating property" shall include all rights of way, road beds, tracks, terminals and land owned by any railroad. (2) The term "operating property" shall include all immovable property owned by any railroad. (3) all immovable property used by any railroad; (4) all immovable propertyoperated by any railroad; (5) all immovable property operatedin connection with any railroad; (6) all stations, grounds and super-structures upon the rights of way and station grounds of any railroad; (7) all other immovable property used by anyperson owning, operating or constructing any line or railroad and reasonably necessary to the maintenance and operation of such road or line or in conducting its business as owner lessee or otherwise; (8) all other immovable property operated by any person owning, operating or constructing any line or railroad and reasonably necessary to the maintenance and operation of such road or line or in conducting its business as owner, lessee or otherwise; (9) all other immovable property occupied by any *Page 371 person owning, operating or constructing any line or railroad and reasonably necessary to the maintenance and operation of such road or line or in conducting its business as owner, lessee or otherwise.
If number 1 means what it says and is construed literally all immovable property owned by any railroad is operating property and the balance of said section is rendered meaningless. One construction of said section would be that number 1 is modified by 2, 3, and 4; that is, operating property includes (1 A) all immovable property owned and used by any railroad; (1 B) all immovable property owned and occupied by any railroad; (1 C) all immovable property owned and operated in connection with any railroad. What hinders this construction is that "or" and not "and" is the conjunction used.
Segregations 5, 6, 7, 8, and 9 as contradistinguished from the above include all other immovable property not necessarilyowned by said railroad but operated or occupied by said railroad as lessee or otherwise and reasonably necessary to the maintenance of said road or line or in connection with its business. The word "owner" in the last line of said section as originally drawn thus either applies to all clauses or only to 1, 2, 3, 4, and 1 A, 1 B and 1 C. So applied we have this resultant definition, that operating property includes as distinguished from 1, 2, 3, 4, and 1 A, 1 B, and 1 C, all other immovable property used by any railroad and reasonably necessary to the conduct of its business, not necessarily as owner but as lessee or otherwise. The intervenors herein are owners, not lessees.
The first series of clauses in section 61-113, I. C. A., include property owned, used or occupied by the railroad; there the syntax changes and all immovable property operated in connection with any railroad is included and the preposition "by" is not inserted before the phrase operated "in connection with." The same is true as to vacant lots and lots and tracts of land not used in the operation of such railroad. It does not say not used by but not used "in the operation *Page 372 of," hence by anyone; the operation itself, not by whom, is, or could be, the controlling interpretation.
The context thus militates against the idea that the operation must be by the owner both because the word "by" does not precede the clause in the first part of section 61-113 and because the second portion of said section quite evidently authorizes assessment by the board of equalization of property used but not owned by the railroad.
Section 61-113, I. C. A., does not by its terms state that immovable property owned by the railroad to be classed as operating property must be operated by the railroad, but the clause or phrase thus reads, "immovable property, owned, used or occupied by or operated in connection with any railroad." Even though the context connotes that such operation must beby, the state board of equalization has been held to possess certain discretionary powers.
"The State Board of Equalization is a constitutional board, clothed by statutory authority with quasi-judicial powers in regard to the assessment of certain classes and kinds of property. It is given the power exclusively, and it is required, to value and assess the properties of public utilities. It has the right to exercise a fair discretion in expressing its judgment as to the valuation of such property, and when it has once acted, and there is no fraud shown in its judgment, its action is not subject to review." (NorthwestLight etc. Co. v. Alexander, 29 Idaho 557, 566, 160 P. 1106.)
True the above was said with relation to valuing but the board must first determine what to value. The construction evidently placed on the section by the state board of equalization is not unreasonable, ungrammatical nor contrary to the syntax thereof.
Turning to section 61-603, I. C. A., as originally passed, operating property is defined conversely to section 61-113, I. C. A., as property not reasonably necessary to the maintenance of such railroad, including vacant lots and tracts of land and lots or land with the buildings thereon not used in *Page 373 the operation of such railroad. Construed alone without reference to section 61-113, I. C. A., this would perhaps justify assessment by the county assessors.
As pointed out in Ada County v. Oregon Short Line R. Co.,supra, these structures are used, as between the railroad and the lessees, the same as though they were owned by the railroad and charges were made to the lessees for storage therein. It is likewise true they are used by the lessees the same as any warehouse in the city adjacent to intervenors tracks. By section 61-113 the use by the railroad company authorizing the placing of the property within the definition of operating property does not depend alone on the maintenance and operation of its line but also "in conducting its business," and some discretion is thereby left to both the railroad and the board of equalization.
It is urged that section 61-603 is the specific statute as to what property is to be assessed by the assessor and thus prevails over section 61-113. Section 61-113 is, however, the specific statute as to what is to be assessed by the state board. Thus one applies to or governs the acts of one board, the other to acts of an official. There is thus to a certain extent an impasse. However the phrases "vacant lots and tracts of lands and buildings" etc. is modified by the clause "not used in the operation of such railroad." And it is significant that it is not required that such property be used "by" the railroad.
Six of these properties have been assessed by the state board since 1917 and the balance have been so assessed since 1925 following the acquisition of the citizens' right-of-way by the intervenors in 1923, without challenge by the county except a prospective suit in 1925 prosecution of which was abandoned upon an opinion by the attorney general of the state upholding the right of the state board to assess (Ada County v. OregonShort Line R. Co., supra) and the present action commenced in 1935.
The court may take judicial notice of the fact that the Reclamation Service is not engaged in business or mercantile pursuits as are the other concerns leasing the lands involved herein. There is not, therefore, such connection between *Page 374 the Reclamation Service and the railroad "in conducting its business" as justifies the assessment by the state board of the lands leased to the Reclamation Service.
The vacant lots herein were acquired in 1923 and the fact that they have not been used for any purpose by the railroad sufficiently negatives their classification as present terminal facilities under the rule laid down in Chicago, Milwaukee St.Paul R. Co. v. Kootenai County, supra, assessable by the state board.
As to the balance of the parcels of land plaintiffs cite cases1 which hold under statutes not as minute or detailed as ours and not containing the phrases and clauses enumerated above, and on various grounds, that lands leased by the railroad to and used by private parties for storage and warehouse purposes were not operating properties under the particular statutes. Other cases2 have held to the contrary.
As indicated above no constitutional question is presented, it is merely a question of legislative intent. With respect to such situation this court early announced and has consistently adhered to the rule that a construction, given a statute susceptible of various constructions, by the executive and administrative officers of the state is entitled to great weight and will be followed by the courts unless there are cogent reasons for change. (State v. Omaechevviaria, 27 Idaho 797, 803, 152 P. 280; Bashore v. Adolf, 41 Idaho 84, 91,238 P. 534, 41 A.L.R. 932; City of Pocatello v. Ross, 51 Idaho 395, 408, 6 P.2d 481; In re Speer, 53 Idaho 293, 23 Pac. *Page 375 (2d) 239, 88 A.L.R. 1086; United Pacific Ins. Co. v. Bakes,57 Idaho 537, 67 P.2d 1024.)
Between 1917 and 1935 the legislature met seven times and is presumed to know that the state board of equalization was assessing this property in the manner now challenged, but did not indicate such method was contrary to the statute. Between 1925 and 1935 the legislature met four times without resultant rebuke. In the absence of pursued court action the county assessors must be considered to have acquiesced in the construction placed on the statute by the state board.
It does not seem the construction given the statute by the state board for such length of time and not refuted by the county assessors is so clearly wrong as to require its overthrow now.
No question of exemption is involved.
Plaintiffs' prayer that the order of the state board be vacated and set aside is denied, except as to the land leased to the Reclamation Service and vacant lots. These are to be assessed by the county assessor, not the state board.
Ailshie, C.J., and Budge, J., concur.
1 Terminal Warehouse Co. v. City of Milwaukee, 205 Wis. 607,238 N.W. 513, 80 A.L.R. 247; Lincoln Fireproof Warehouse Co. v.City of Milwaukee, 208 Wis. 70, 241 N.W. 623, 242 N.W. 558;Grand Rapids I. Ry. Co. v. City of Grand Rapids, 137 Mich. 587,100 N.W. 1012, 4 Ann. Cas. 1195; Red Willow County v.Chicago B. Q. K. Co., 26 Neb. 660, 42 N.W. 879; Town ofBristol v. Bristol Railroad Co., 91 Vt. 223, 100 A. 37.
2 Minneapolis St. P. S. S. M. Ry. Co. v. Douglas County,159 Wis. 408, 150 N.W. 422, Ann. Cas. 1916E, 1199; Chicago etc. R.Co. v. Board of Supervisors, 48 Wis. 666, 5 N.W. 3; Chicagoetc. Ry. Co. v. Douglas County, 122 Wis. 273, 99 N.W. 1030.