Tidball v. Miller

This is an appeal from the Board of Equalization of Ziebach county. The circuit court dismissed the appeal and Tidball has appealed to this court. Here the decision of the circuit court was reversed. Tidball v. Miller, 71 S.D. 442, 25 N.W.2d 554. Then the respondent filed a petition for rehearing, which was granted.

The right of appeal from the Board of Equalization is provided by SDC 57.0411. The time for appeal is limited by SDC 12.0619 which provides: "Such appeal shall be taken within twenty days after the publication of the decision of the board * * *." The question in this case is whether the appeal was taken within the time allowed by the statute.

[1] James B. Tidball owned about 3,000 acres of land in Ziebach county, assessed for taxation in 1945. All the land is located in unorganzied territory having no local board of equalization, and therefore the assessment lists were returned to the county auditor. The County Board of Equalization met on the first Tuesday in July, being the third day of the month, pursuant to SDC 57.0405. On July 6th, acting as a local Board of Equalization, it raised or lowered the individual assessments of more than 500 tracts of land. Tidball owned forty-six tracts, twenty-nine of which were raised in value, and in seventeen instances the valuations were left as assessed. The raised valuations were recorded on the minutes of the Board on July 6th. Thereafter, Tidball filed written objections to all the valuations of his property as fixed by the assessor, and to all valuations raised by the County Board. He petitioned for the reduction of all valuations to what he claimed was the true value of his land. On July 14, 16 and 18, the Board sent Tidball four separate notices requiring him to appear on July 18 and show cause why the land assessed in his name "should not be assessed and subject to taxation" at the several valuations to which some of the tracts had been raised by the Board on July 6. These were in effect notices of hearing on the petition previously filed by Tidball as to valuations raised by the Board on July 6. These notices made no mention of that part of Tidball's petition which related to assessed valuations made by the assessor and not raised by the Board. Tidball appeared before the Board on July 18th. The minutes of the Board recite that "the day was spent on hearing cases which were brought before the Board" but contains no reference to the disposition of Tidball's petition. The existence of the Board of Equalization terminated on that day by expiration of the fifteen-day statutory limitation. SDC 57.0405. Such adjournment of the Equalization Board by statutory limitation without recorded action on the objections made by Tidball was, to all legal as well as practical intents and purposes, a denial and rejection of his application, from which an appeal might be taken under SDC 57.0411. Sumner v. County of Colfax,14 Neb. 524, 16 N.W. 756; Burns v. McNally, 90 Iowa 432, 57 N.W. 908; Beadle County v. Eveland, 43 S.D. 447, 180 N.W. 65. To hold otherwise under the facts in this case would place in the Board of Equalization the power to deprive a person of the right of appeal altogether.

The record of the Board of Equalization was published on August 2d 1945, and the appeal was not taken until September 4th. If that publication constituted "publication of the decision of the Board" the appeal was not taken within the twenty days allowed by statute and should be dismissed. Respondent contends that the publication of the silent record was a publication of the decision denying Tidball's petition for reduction in the assessed valuation of his land.

[2] SDC 12.0619, which regulates the manner of appeal from County Board of Equalization to the circuit court, was formerly § 5887 of the Code of 1919. That statute provided that the appeal must be taken "within twenty days after the decision of the board." No notice of the decision was required. Chapter 160, S.L. 1921, amended this statute by inserting the words "the publication of" following the word "after." No change was made in the revision of 1939. The statute as amended requires that notice of an adverse decision by the Board shall be given to any person having a matter properly before it. Such notice is to be given by recording the decision in the proceedings of the Board, and by publication of the record. Until such notice is given the twenty-day statute of limitations does not commence to run.

[3] The publication of the offical proceedings of July 6th did not give notice of the decision made by the Board. We therefore adhere to the conclusions reached in the former opinion to the effect that the Board of Equalization denied Tidball's petition for a reduction in the assessed valuation of his land; that such decision was not published on August 2d 1945, and that the right of appeal was not barred by the statute of limitations.

The judgment of the circuit court is reversed.

ROBERTS and SMITH, JJ., concur.

RUDOLPH, J., (concurs specially.)

POLLEY, J., not sitting.