Ex Parte State Ex Rel. Smith , 203 Ala. 444 ( 1919 )

MAYFIELD, J.

This is an original application to this court for a writ of prohibition, or other remedial process, to arrest certain proceedings in the circuit court of Conecuh county, being or to be heard before Judge A. E. Gamble, the judge of said court.

The proceeding sought to be arrested or prohibited is an appeal to the circuit court from the action of the county board of equalization of Conecuh county, in the matter of the revaluation of the property of the Lovelace Lumber Company, a taxpayer, for assessment for taxes. The state board of equalization, pursuant to the Acts of 1915, p. 386 et seq., ordered a revaluation of the property in Conecuh county to be made by the county board of equalization, which was done, and resulted in raising the valuation of the property of the taxpayer Lovelace Lumber Company. The said revaluation was duly recorded and the action of the county board reported as directed by the statute. From this order and action of the county board in increasing the valuation of the property for assessment, the lumber company appealed to the circuit court; and the state, acting by and through its Attorney General, applied to this court to prohibit any further proceedings in the matter of reviewing the revaluation by the county board for assessments, on the ground that no appeal will lie from such action or orders of the county board in revaluing the property for assessment, when acting under the orders of the state board of equalization."

[1,2] Appeal is, of course, purely a creation of statute, and unless so given in this case no such right existed, and the circuit court acquired no jurisdiction to review or revise the revaluation for assessment, and any action on the part of the court or judge to that end would be eoram non judice, and would be arrested on timely application to this court, as is done in this case.

[3] We are of the opinion that the statutes creating the state and county boards of equalization, and providing for the revaluation and reassessment of the property for taxation, expressly provide for appeals from certain orders and actions of such boards under certain conditions; and that this appeal sought to be arrested or prohibited is both within the letter and spirit of the statutes.

Section 77 of an Act approved September 14, 1915 (General Acts 1915, pp. 386-488), provides that a taxpayer dissatisfied with the action of the board of equalization may, within five days, give notice thereof, and demand an arbitration; and provides and specifies the mode of such proceedings to arbitrate and' the result thereof. This, however, is wholly at the option of the taxpayer. If he desires not to exercise the option to arbitrate, as provided, he is given the express right of appeal by statute. The language is not doubtful in conferring the right of appeal in a case like this. It is- as follows:

“Wherever and whenever any taxpayer is given under' the preceding sections hereof the right to demand an arbitration of the assessment of his or its property, the owner may either demand said arbitration or may appeal to the circuit court of the county in which the property lies, and in case the property lies in more than one county, the owner may appeal to the circuit court of any county in which any of the property lies.” Section 292.

[4] The words “revaluation” and “reassessments” are used interchangeably in the statutes. The property is, of course, .revalued for the purpose of'reassessment at the revaluation, and, if the valuation is increased, the amount of taxes to be assessed and collected are, of course, increased to the detriment of the taxpayer, and the statute in-’ dubitably gives him the right to an arbitration or appeal, at his election. He can have either right, but not both. The choice is left to the taxpayer. In this case he chose the right of appeal, which the record shows he perfected within the mode and time prescribed by the statute, and the court acquired jurisdiction of his appeal, and the state’s application for a writ of prohibition must be denied.

Application for writ of prohibition denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JL, concur.