Stuart v. Board of Supervisors , 195 Miss. 1 ( 1943 )

Section 3191, Code 1930, as amended by Chap. 187, Laws 1934, so far as material to the questions now before us, reads as follows:

"The board of supervisors of each county shall have power, upon application of the party interested . . . to change, cancel or decrease an assessment in the manner herein provided, at any time after the assessment roll containing such assessment has been finally approved by the state tax commission, prior to the ending of the fiscal year in which the taxes on such assessment are payable, under the following circumstances and no other:

". . . When the property has been assessed for more than its actual value; but the board shall require proof of the overvaluation by two or more persons who know of their own personal knowledge that the property is assessed for a higher sum than its true value."

Appellant is the owner of several separate parcels of land in Scott County. The board of supervisors, in passing upon the assessment rolls of the county for the year 1940 at its August and September, 1940, sessions, increased the assessment on appellant's land as made by the assessor, and the rolls thus increased were approved by the State Tax Commission Thereafter and on March 4, 1941, during a regular session of the board of supervisors, appellant presented his application or petition to the board praying that the assessment made against his lands, the lands being fully and definitely described in the petition, be reduced to the extent of $1 per acre, it being alleged that to that extent the lands were assessed at more than their true value. The petition was supported by an affidavit annexed thereto of two persons who affirmed upon their own personal knowledge, and at this point it may be appropriate to note that the petition was in all things strictly in compliance with all and singular the requirements of the law, and was within the statutory time.

This petition with the proof in support thereof was heard by the board of supervisors on March 6, 1941, and on that date the board entered its order reciting inter alia, "and it appearing to the board of supervisors from the evidence, both oral and documentary, offered in support of said application that the assessment as it now appears on said roll is incorrect in the following particulars: That the property listed as follows was assessed at values which hereinafter follow and should be allowed reduction as stated below:", and this is followed by the several descriptions and a reduction of $1 per acre for each description, and the order concludes with the recital that "The assessment of each separate tract listed by petitioner and made a part of this order by reference is assessed for more than its actual value to the extent shown by petitioner in the extreme right hand column thereof, the Clerk of this Board being directed to copy said schedule as an exhibit to this order."

The further details of the order will not be pursued, but we will summarize by the statement that in all respects the order was full, complete, and specific, complying with every requirement of the law, and it did reduce the assessment of appellant's several parcels of land to the extent of one dollar per acre on each of the said parcels.

Section 3194, Code 1930, requires that when an assessment has been reduced under Section 3191, the clerk of the board of supervisors shall certify two copies of the order of the board of the State Tax Commission and shall attach thereto the original and duplicate application; and the section further provides: "Upon receipt of the copies of the order and application . . . the state tax commission shall consider the same, and approve or disapprove the order, and enter its approval or disapproval thereon, and shall file one copy of the order . . . with the auditor of public accounts and shall return the other copy to the clerk of the board of supervisors. Upon receipt of the approved order . . . the clerk shall transmit a certified copy of the order to the tax collector of his county and shall file the application as a record in his office."

It will be noted that there is no provision for notice by, or for a hearing before, the Tax Commission, and no rule is laid down for the guidance of the commission, and that nothing is required to be done by the clerk or by the board in case the order is disapproved by the State Tax Commission.

All the required papers were filed with the State Tax Commission on March 12, 1941, and on March 26, 1941, the commission disapproved the order of the board of supervisors, but without any statement of the reason therefor, and sent the copy with the disapproval endorsed thereon to the clerk of the board of supervisors. Thereupon the board of supervisors and the other revenue officers of the county were adhering to and proceeding in the demand to collect taxes on appellant's land under the original assessment, rather than upon the reduced assessment, whereupon appellant paid to the tax collector, under protest, a portion of the taxes demanded and filed his bill for relief in the chancery court and paid to the clerk as register of the court the balance so demanded, to be held by him to abide the result of his suit.

When the suit came on to be heard, appellant proved by six witnesses upon a stipulation between the parties that the land of appellant was assessed in excess of its true value to the extent of one dollar per acre; and this evidence is undisputed. Appellant further proved that the State Tax Commission in its supposed action in disapproving the order of the board of supervisors had no evidence before it, gave no notice to the taxpayer, acted without any notice to him, and that when he learned of its attempted action, he went to the tax commissioner in charge and offered to make the proof by any competent evidence, and that the Tax Commission, through its vice-chairman, refused to permit him to be heard, and stated that the commission would not be interested in any evidence whatever; and all this also is undisputed. Appellant's bill was dismissed by the chancery court, and he appeals to this court.

Appellant contends, with the support of a wealth of authorities, that the provision of Section 3194, which confers upon the Tax Commission the jurisdiction to review a reduction made by the board of supervisors under Section 3191, is void on its face for the reasons, (1) that the legislative department has fixed in Section 3194 no standard by which the action of the tax commission shall be guided, and (2) has provided for no hearing before the commission, and for no notice to the petitioning taxpayer of the time when the commission will hear the issue or issues under review.

Under the familiar rule that a court will not denounce a statute as void when there exists another ground upon which the same result would be reached, we pretermit decision on the aforementioned questions and proceed rather to attend to the merits of this case upon the fundamental principle implicit in Section 112, Constitution 1890, that no parcel of real property and no piece of personal property shall be assessed at more than its actual value when the owner or other party legally bound to pay the ad valorem taxes thereon has shown in any manner provided by law, as the owner has done here, that the assessment or proposed assessment is at a sum in excess of actual value and how much the excess is, and this regardless of what any board or commission or other assessing authority may attempt to the contrary.

Had the board of supervisors denied appellant's petition in this case, he would have been entitled under Section 62, Code 1930, to appeal from its decision to the circuit court at any time within ten days after the adjournment of the meeting at which such adverse decision was made, and the circuit court would have tried the controversy anew, and if decided in favor of the taxpayer, the judgment to that effect would be certified to the board of supervisors who would thereupon be obliged to conform to the judgment so rendered, and the State Tax Commission in such case would have nothing to do with the matter.

In the trial anew in the circuit court on the appeal thereto, the taxpayer would be entitled to an instruction to the jury to the effect that under the Constitution of this state no specific parcel of real estate may be assessed at more than its actual value, and that if the jury believe from the preponderance of the evidence that the property in question has been assessed for more than its true value, the jury shall return a verdict for the taxpayer and shall in its verdict find and fix the amount of such excess.

Certainly, the rights of the taxpayer cannot be less in extent or effect when, as in this case, the decision of the board of supervisors has been in favor of the taxpayer. In the latter case the statute, Section 3194, has made the State Tax Commission a board of review, and the law under the Constitution writes the same instruction to the commission for its guidance which the court would have given to the jury, as aforestated. The jury could not have resorted to common or judicial knowledge as to the value of the particular parcels of land, whatever may be the rule as to land values generally, and neither may the Tax Commission. This issue is not within the permissible range of common knowledge, as we have recently had occasion to say. Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644, 645. And the jury could not have brought out a verdict, contrary to the evidence, on the theory that the assessment, as originally made, would equalize the value with other property of the same class throughout the state or county; for the jury had been instructed that the property could not be assessed on any theory or pretense beyond its actual value, and the law under the Constitution gives the same instruction to the Tax Commission. Assessing any particular parcel of property at more than its actual value is not a permissible device in any constitutional procedure for equalization. Compare State ex rel. v. Wheatley, 113 Miss. 555, 74 So. 427.

It follows, therefore, that before the State Tax Commission could lawfully reject or disapprove an order of the board of supervisors making a reduction under Section 3191, the commission must have before it competent evidence to the effect that the order of the board of supervisors is in fact erroneous. In the case in hand it is undisputed that the Tax Commission had before it no competent evidence whatever, and that when the taxpayer appealed to the commission to allow him to present the evidence before the commission, the offer was denied with the statement by the commissioner in charge that the Tax Commission would not be interested in any evidence. The action and order of the State Tax Commission declining to approve the order of the board of supervisors was, therefore, without legal support and was void, thus leaving the order of the board, made in response to the petition of the taxpayer, in full effect, and the chancery court should have so declared and adjudged, with such further orders in its decree as would furnish the taxpayer full relief in the premises.

We do not pursue the many contentions made in behalf of appellees other than to pronounce them untenable. We make an exception, however, in respect to the contention that appellant should not be allowed recourse to chancery, because, as it is said, he had a plain, adequate, and efficient remedy at law by appeal. There has been no assertion that the taxpayer should have appealed directly from the adverse decision of the State Tax Commission since the statute makes no provision whatever for an appeal from the decision of the commission, and certainly he could not appeal from the action of the board of supervisors, for that decision was favorable to him. But it is said that after the order of the Tax Commission disapproving the decision of the board of supervisors had been received by the board, the latter should have entered an order denying the taxpayer's petition so that the taxpayer could appeal from that order, and that the taxpayer should have sought such an order from the board and that not having done so is barred because not having appealed from the unentered order. There are several obvious answers to this, but it is sufficient to say, in this respect, that, as already mentioned, the statute makes no provision whatever for any further order to be entered by the board upon rejection by the State Tax Commission, and it is to state no more than an elemental proposition that a board of supervisors can enter only such orders as are authorized by statute.

Without further prolonging this opinion, we hold, as heretofore indicated, that the order of the State Tax Commission disapproving the action of the board of supervisors was void and that the order of the board of supervisors sustaining the petition of the taxpayer stands in final force and effect, and that equity has jurisdiction and the duty to afford full relief to the taxpayer in the premises.

We, therefore, reverse the decree and enter here the decree which the chancery court should have entered under the facts which, as already stated, are undisputed. The decree here will be that the order of the State Tax Commission made, or attempted to be made, on March 26, 1941, is void and is vacated and reversed; that the order made by the board of supervisors on March 6, 1941, stands in full force and effect; that the clerk and register of the chancery court shall, out of the money deposited in his hands by appellant, pay to the tax collector of said county the balance of the taxes due on the lands for the year 1940, calculated on the valuations shown in the said order of March 6, 1941, and without interest, cost or damages, the clerk delivering to the tax collector at the same time a certified copy of said last mentioned order, which certified order shall be the warrant to the tax collector for his collections on said land for the taxes of 1940 and also for the taxes of 1941, and the remainder of said money, after paying as aforesaid the balance of the taxes for the year 1940, the clerk and register shall return to appellant. And appellant shall have leave to file any supplemental bill to enforce the decree now entered if necessity therefor shall arise. Appellees to pay all court costs.

Reversed, and decree here for appellant.