107 Tenn. 257 | Tenn. | 1901
This is a bill- to recover taxes paid the State and County under protest and to set aside an assessment of property for taxation. The bill was demurred to; the demurrer was sustained, and the bill dismissed without any relief, and complainant has appealed and assigned errors.
The bill alleges, in substance, that complainant owns real estate in Shelby County for which he gave, at public sale, $12,200; which at that time
The bill further alleges that thereafter the State Board recalled the record so certified, and had the same returned to it at Nashville, and that such
The bill further avers that it was not competent for the State Board, after having taken action, and leaving untouched the real estate in Shelby County, and certifying the roll to the Clerk of the County Court, to take any other or further action, except upon such proceeding by a taxpayer in the form of a verified petition, asking for a revision of the quasi judicial action of the members of the Board in making an erroneous assessment of his property, and seeking a rehearing of its judgment; that the roll became a finality when acted upon by the Board and returned to the County Court Clerk, and could not be changed on mere motion of the Board, without notice to the taxpayer.
The allegations of the bill in regard to values are, in substance, these: That property specified in Section 22 of the Act is assessed at forty per cent, of its value; that real estate is assessed at
It will then be seen that the complainant in this bill treats $12,000 as the actual cash value of his propei'ty, which was assessed at $10,500 by the State Board of Equalization, or not quite ’90 per cent, of its actual cash value. He states that -at public sale he gave for this property $12,200 and that was the actual cash value of it when ■ he bought it. The bill further alleges that upon this assessment the city of Memphis will collect taxes for 1901 and 1902, and defendant' Alsup is ex-offioio-collector of these taxes and will proceed to collec-upon this assessment. It further charges that ■ the
The prayer is that the assessment of $10,500 be declared illegal and void because repugnant to Section 8, Article 11, of the Constitution and to Section 17 of Article 2, and that he have judgment for the taxes paid by him and that the assessment be cancelled and set aside and that he have such other and further relief as may be equitable and proper under the facts general and special.
The demurrer is in substance:
1. That the complainant having by this bill shown that his property is assessed at less than its actual cash value, has no status, and cannot complain of the assessment merely because other property of - other owners is assessed at a still lower valuation.
2. That the notice provided by the statute is all the notice to which the complainant or any other property owner is entitled.
3. That the State Board had the jurisdiction to raise the assessment of real estate as it did, and to consider and pass upon the tax assessment for Shelby County as it did.
4. That the bill shows that when the action of the State Board was had it was acquiesced in • and
5. That the Act does not embrace two subjects, but only one general • subject, and" the provision complained of is one prescribing a mode of making an equal and uniform assessment; and the Act is not, therefore, unconstitutional and void.
The decree of the Chancellor recites that the several assignments of demurrer are well taken.
The first assignment of error is in substance that the Act in controversy, being Chapter 435 of the Acts of 1899, is repugnant to Section 17, Article 2 of the Constitution of the State, in that it embraces two separate and distinct subjects, to wit, (1) the assessment and collection of revenue, and (2) the exemption of a certain class of property from taxation.
The title of the Act is: <cAn Act to provide more just and equitable laws for the assessment and collection of revenue for State, county, and municipal purposes, and to repeal all laws in conflict with the provisions of this Act, whereby revenue is collected from the assessment of real estate, property, privileges, and polls.” In support of this assignment are cited the following cases: State v. McCann, 4 Lea, 1; Murphy v. State, 9 Lea, 373; Mayor v. Lewis, 12 Lea, 180; Ragio v. State, 86
Without commenting upon these cases, we are of opinion that the present Act does not embrace two separate and distinct subjects, but only the general and broad subject of the just and equitable assessment and collection of State, county, and municipal taxes; that this broad subject, expressed in the title, covers all the provisions of the Act, including the manner of assessing property of corporations, and the matters complained of as exemptions are, in fact, only different methods of taxing the property of different corporations. State v. Brown, 103 Tenn., 450; State v. Yardly, 95 Tenn., 546.
Closely connected with the first assignment is the second one, which is, in substance, that the Act violates that provision of the Constitution which prohibits special and class legislation. Coupled with this, also, is the third assignment, that the Legislature had no power to exempt shares of stock in quasi public and manufacturing corporations from taxation while it taxes the shares in other corporations; and that this A.ct makes such exemptions, and that the provisions relating thereto are so interwoven and interdependent on other provisions as to render the whole Act void.
We are of opinion that these assignments are not well made. What is called in the bill and brief of counsel an exemption of the shares of stock of
It has been found necessary to provide different modes for the assessment and taxation of different classes of property belonging to different kinds of corporations, and even different kinds of property belonging to individuals, and such instances of difference in modes is frequently met with. Thus railroads, which do not pay an ad valorem tax, are required by law to pay a privilege tax. Railroad v. Harris, 15 Pickle, 684. Banks are taxed differently to avoid the. exemptions contained in their charters.
It is said that after the State Board had once considered the Shelby County assessment and certified its conclusions to the Clerk of the County Court, its power and jurisdiction was exhausted, especially in the absence of notice to property owners.
As we understand the allegations of the bill they are that the State Board, upon their first consideration of assessments of Shelby County property, left the assessments of real estate untouched, and this, we think, means that the assessments were not considered, so far as real estate was concerned, and, while the action of the Board in returning the roll before their work was entirely completed, may have been irregular, still we cannot see that the Board exhausted its power until after it had fully acted upon the assessment of real estate as well as other property, and we think the reasonable inference is that their action was a mere matter of convenience, and not intended as a finality and conclusion of their labors during their sitting, the assessment was entirely under their control so long as it was desired by them to complete their labors and discharge their duties relating to it. ■
It is next insisted that the entire action of the Board is illegal and void because of the presence of the Hon. Newton H. White upon the Board as a substitute for and in lieu of the State Treasurer, the Hon. E. B. Craig. The allegations of the bill
bio imputation is made against the capacity and integrity of Mr. White. These are expressly conceded by the bill. It is alleged that he was appointed by the Treasurer to act in his stead, and that he attended each and every session of the Board, and passed judgment on each and every question coming before the Board and also that he visited the city of Memphis with the Comptroller seeking information. The bill does not allege that he was present and participated in the consideration of the Shelby County assessment nor that the Treasurer was not present at the time it was made; on the contrary, if taken literally, the language would imply that the Treasurer was present and that Mr. White was not, as the bill states that the Board of Equalization convened at Nashville and considered of the assessments and took action thereon without specifically stating that Mr. White was present and that Mr. Craig was not, on that particular occasion. But treating the bill as alleging as was probably intended that Mr. White was present and Mr. Craig was not, the question recurs, does this render the action of the Board, or a majority of the Board, void?
There is no allegation that a quorum of the properly constituted Board did not act, nor indeed that those who acted did not do so unanimously.
The rules there laid down are, that when power is delegated to two or more persons for a mere private purpose in no respect affecting the public, it is necessary that all should join in the execution of it, thus arbitrators must all join in an award, but in matters of public concern if all are present, the majority may act for the whole, citing McCoy v. Curtice, 9 Wend., 17 (S. C. 24 Am. Dec., 115 and note); Cooley v. O'Conner, 79 U. S. Report, 396; Croker v. Crane, 21 Wend., 211; Ex Parte, Rogers, 7 Cowen, 529 (S. C. 34 Am. Dec., 235 and note); Bank v. Mount Taber, 52 Ver., 87 (S. C. 36 Am. Report, 734), and other cases.
, A more explicit statement of the rule is: that generally when a body or board of officers is constituted by law to perform a trust for the public, or execute a power or perform a duty prescribed by law, it is not necessary that all should concur in the act done — the act of the majority is the act of the body. 19 Am. & Eng. Ency. (1st Ed.), 465, and note.
Some cases hold that all must confer, but if all have notice of the time and place of meeting it is no objection that all do not attend if there be a quorum, and the presence of all will be presumed
But the same rule does not apply in cases of officers exercising judicial functions. In such cases a majority may act. Radford Trust Co. v. Memphis Lum. Co., 8 Pickle, 136; Austin v. Harbin, 11 Pickle, 600; Cowan v. Murch, 13 Pickle, 590.
The cases which hold that all must act, and a majority cannot, so far as we can ascertain relate to matters of private interest, or where the statute or acts delegating the authority does not expressly provide that the act of the majority shall be sufficient; we have been cited to no authority which holds that all must join when the statute prescribes that a majority may act, and in such case the statute controls and a majority may act, and this •has been held to apply to Boards of Equalization. Cooley v. O'Conner, 12, Wall, U. S., 396; People v. Lothiop, 3 Colo., 428; Conner v. Waxahatchie, 13 S. W., Rep., 30; Ferriss v. Kenble, 75 Texas, 476; Hamilton v. State, 3 Ind., 452; 25 Am. & Eng. Enc. L. (1st Ed.), 247.
If the office and duty of the Board be considered as ministerial instead of judicial or quasi judicial, then a majority may without question act and the authority of any one may be delegated. 19 Am. & Eng. Enc. L., (1st Ed.), 462 and note.
.Our statute, Shannon, Sec. 69, provides that “all
It is held in Cowan v. Murch, 13 Pickle, 590, that while this section by its terms and context is applicable alone to the Code and the body of laws embraced in it; it should be considered in the construction of all subsequent statutes so as to build up a uniform and harmonious system.
But any doubt on the right of the majority to act in this case is put at rest by the first subsection of Section 39 of the Act in question, which provides that a majority of the Board shall constitute a quorum for the transaction of business. It is said, however, that even if it be true that a majority may act, the statute does not authorize joint action with a third person, no matter who he may be. But we cannot see how this can affect the action of the majority, if it be true. They would have the right to call to their aid the services of any competent citizen- as advisory, and his counsel and act would not vitiate the conclusion of the majority. It will be noted, however, that there is no express charge that Mr. White took any part in raising the assessment, but the inference from the language used is that he did not. There is no allegation that it was done on his advice or suggestion, or that he signed the assessment as made.
So far as this feature of the assessment goes, we think it not well taken, for the act clearly contemplates and provides that the Board shall have the power to pass upon and consider individual assessments, and increase or decrease them as in its judgment may appear right and proper. This appears from many sections and provisions of the act which we need not mention.
It is said that, conceding this to be true, the Act must be held to be unconstitutional and void because it wholly fails to provide for notice to the property owner to be affected by the act of the Board and give him an opportunity of being heard, before the Board passes upon the value of his property as a finality, and thus the taxpayer is encumbered with a burden and his property taken without due process of law, contrary to the Constitution.
The Act provides for a biennial session of the Board to be holden the second Monday in July and
The only express provision we find in the Act for hearing complainants of the individual taxpayer is contained in the sixth subsection of Section 39, and that pertains only to persons who desire to complain that their neighbors or third persons have not been adequately assessed.
Therefore if the Board shall find the property of any county, district, ward, or citizen in any County in the State in their opinion not adequately assessed, it may, without further notice than the Act itself provides, proceed to raise such property to such assessment as in its judgment reaches its actual cash value.
When the Board undertakes to fix this actual value, the property owner, under the Act, is not notified to appear, and this is true whether the assessment is that of a county, district, individual, or corporation.
The taxpayer knows that the Board is in session, it is true, for the act so notifies him, but he does not know when it will consider the assessment nor
It is said that it would be impracticable to give each taxpayer' notice; that the number to be investigated and the space of time in which they are to be considered is too great to allow notice - in each case. The argument is ’ pressed to the conclusion that to hold the general notice provided by the act to be sufficient to warn each property owner in the State to be on the alert to see that his assessment which has passed the scrutiny and action of the assessor and County Board, may be increased, nevertheless, by the State Board, and that he must take notice thereof without further notification than the
Numerous cases are cited as sustaining the contention that notice must be given and that a general notice, such as provided by the present Act, is not sufficient, but some notice must be provided by the Act itself to be given to each individual taxpayer or property owner, and in the absence of any provision for such notice in the Act the Act itself would be unconstitutional and void, because it would impose a tax burden and thus take away the properey of the owner without due process of law; and this is undoubtedly the holding of some States and authorities. We cite a number of these, and, no doubt, others can be collated. Kuntz v. Sumption, 2 L. R. A., 655, a case from Indiana; Hager v. Reclamation Dist., 111 U. S., 701; Sioux City v. Washington Co., 3 Neb., 30; South Platte Land Co. v. Buffalo Co., 7 Neb., 253; McGee v. The State, 49 N. W. Rep., 220; Patton v. Green, 13 Cal., 325.
Other authorities hold a different view, and we are satisfied from them and reason that the notice prescribed by the statute is sufficient to warrant the action of the Board. Indeed, it is difficult to see how any other notice could be so effectual or suit
In Cooley on Taxation (2d E.), p. 364-5, it is said, of the meeting of the Court or Board, the taxpayer must in some manner be informed, either by personal notice or by some general notice which is reasonably certain to reach him, or what is equiva
In the note to Read v. Dingess, 8 C. C. A. Rep., 401, is found an excellent statement of law involved ■in these words: “It being conceded that notice of a meeting of the Board of Equalization is necessary in order to invest their proceedings with the character of due process of law, it is next to be seen whether this notice must be actual personal notice to each individual whose assessment is to be affected, or whether it may be public or general.
‘ ‘ In some of the States it is held that although the fixing by the statute of a time and place for the meeting of the Board of Equalization is intended to operate as general notice to any persons who may feel aggrieved; yet the Board cannot at any time increase and assess valuation without actual notice to the persons whose rights or interests are to be affected thereby. Citing Sioux City & P. R. R. v. Washington Co., 3 Neb., 30; South Platte Land Co. v. Buffalo Co., 7 Neb., 253; McGee v.
‘1 But the great preponderance of authority is to the effect that if a public statute, of which all persons are bound to take notice, specifies the day and place when the Board of Equalization shall meet, a •person affected by its action cannot complain that such action was taken without notice to him. Santa Clara Co. v. Sou. Pa. R. R. Co., 18 Fed. Rep., 385; Methodist Church v. Mayor of Baltimore, 6 Gill., 391; O'Neil v. Bridge Co., 18 Maryland, 26; State v. Runyon, 41 N. J. Law, 98; Nixon v. Ruple, 30 N. J. Law, 58; St. Louis & I. M. R. R. v. Worthin, 52 Ark., 529; Hambleton v. Dempsey, 20 Ohio St., 168; State v. New Lindel Hotel Co., 9 Mo. App., 450.
“And on the same principle a published general notice of the meeting of the Board of Equalization is sufficient to give authority to act upon individual assessments. Lamb v. Connoly, 25 N. E., 1042; Terrel v. Wheeler, 25 N. E., 329 (123 N. Y., 76); Fithian v. Wheeler, 26 N. E., 141 (125 N. Y., 696).”
In 1 Desty on Taxation, p. 601, it is said: “The proceedings being judicial, the law must provide some kind of notice and opportunity to be heard before the proceedings become final, or they want the essential ingredients of due process of law. It may be given by personal citation or by statute. It is usually given by statute prescribing a time and place when parties may be heard;” and again, p.
In the State Railroad Tax Cases, 92 U. S., 609, it is said: “The main function of the Board is to equalize assessments over the whole State. If they find that a county has had its property assessed too high in reference to the general standing, they may reduce the valuation; if it has been fixed too low, they may raise it to that standard. When they raise it in any county, they necessarily raise it on every individual who owns any property in that county. Must each one of these have notice and a separate hearing? If a railroad company is by law entitled to such notice, surely every individual is equally entitled to it. Yet, if this be so, the expense of giving notice, the delay of hearing each individual, would render the exercise of the main function of the Board impossible. The very moment you co.me to apply to the individual the right claimed in this case by the corporation, its absurdity is apparent. Nor is there any hardship in the matter. The Board has its time of sitting fixed by law. Its sessions are not secret. No obstructions exist to the appearance of any one before it to assert a right or redress a wrong, and in the business of assessing taxes, this is all that can be reasonably asked. ’ ’
In the case of Santa Clara Co. v. Sou. Pa. R. R., 18 Fed. Rep., 411, it is said: “The notice
All that we assert or have asserted is that there must be a notice of some kind which will call the attention of the parties to the subject and inform them where and when they will be permitted to expose any alleged wrong, in the valuation of which they may complain.
But the Court is forced to the same conclusion upon another point, and that is that complainant does not occupy such a status as that he is entitled to any relief or that his complaint can be heard. The provision of the Constitution in regard to taxation, necessary to be considered in this case, ■ is: £ ‘All property shall. be taxed according to its value, that value is to be ascertained in such manner as the Legislature shall direct, so that taxes shall be equal and uniform throughout the State.” Cons., Art. 2, Sec. 28.
Section 4 of the Act of 1899, under which this assessment is made, directs that all property shall be assessed at its actual cash value, and actual cash value is there defined as the amount of money the property would bring if sold at a fair voluntary sale.
We do not stop to inquire whether the Legislature might adopt a different basis for estimating
There are, then, two fundamental principles to be taken as guides in assessing property under our Constitution and laws: (1) That all property shall be assessed at its actual cash value; and (2) that taxes shall be equal and uniform. The latter proposition flows naturally and inevitably as a corrolary to the former, for, when all property is assessed at its actual cash value, then all taxes become equal and uniform. However difficult it may be to arrive at the first result, it is imperatively demanded by the Constitution and laws, and the second unavoidably and from necessity follows it, and to adopt a cash valuation is the only basis upon which it is practicable to make taxes equal and uniform.
It is said that Subsection 6 of Section 39 of the Act in controversy recognizes the doctrine of proportionate rating, and that a taxpayer is entitled to relief if his property is assessed at a higher percentage of value than other like property owned by other taxpayers, even though it is not assessed at its full cash value. That section provides that the State Board of Equalization may hear a complaint from any taxpayer, made on the ground that '.other property than his own has been assessed at less than its actual cash value, or at a less percentage of value than his own; but this appears to be made
It is the evident policy and object of the law, in cases of unequal assessments, not to reduce the assessments upon the property unless it has been assessed beyond its actual value, but, instead, to raise up to that valuation all property that has been inadequately assessed, and thus to equalize taxation on all property. The recourse offered to the taxpayer is not to reduce his own assessment, unless it is beyond its actual cash value, but to have that of his neighbor increased until both reach the point of actual cash value and thus become equal and uniform, as the law provides and the Constitution contemplates. This idea is manifested in many provisions of the statute not necessary to be specifically pointed out. ■ It may be found in every section that refers to value. The question then recurs, Can a taxpayer, who confesses that his property has not' been taxed at its actual cash value, complain of his • own assessment because other property owners have been inadequately assessed? Upon this feature of the case, which is determinative of this case, there is a conflict of authority. Much of this 'Conflict is more apparent than real, and arises out of the differences in statutory and constitutional provisions in regard to assessments and taxation of
The case of Wagoner v. Loomis, 37 Ohio St., 571, is a well considered case and very much in point. It is said in that case: “That the statutes of Ohio require all property to be taxed at its true value in money, and the equality required by the Constitution has no other test.”.. Again: ‘ ‘ Where, then, lies the equity of this ' case ? While it cannot be said that the plaintiffs below should be compelled to pay more taxes in propor-. tion to the value of their property than is required of other taxpayers of the county, it must be affirmed that other taxpayers should pay as much as is required of. the plaintiff in proportion to the Value of their respective properties, and that is to say until all have paid the required rate upon the full and true value of their respective properties. And if for such reasons (disproportionate assessments at less than their value), relief can be given ■ to plaintiff, we see no reason why the like relief may not be given every taxpayer in the State whose property has been assessed at more than forty per centum of its true value, even to the destruction of the revenues of the State.”
This case distinguishes between instances where the overvaluation arises from a mere estimate or opinion and one where it is the result of fraud, conspiracy, or a combination or design to fix on one class of property heavier taxes than upon another,
The Constitution of Ohio requires an assessment upon a basis of true value and equality at the same time, as does the Constitution of Tennessee. This case is referred to and commented on in Bank v. Lucan County, 25 Fed. Rep., 750, in this language: ‘‘ I understand that the Supreme Court of Ohio decided that, inasmuch as the Constitution and laws of the State provide for equality of taxation, by requiring all property, • whatever it be, assessed for taxation at its true value in money, any citizen whose property is assessed below that value has no just cause of complaint because the property of other citizens is assessed at less than his own, and his only remedy is to apply to the assessing officers to increase all assessments to their true value in money.”
This is the Constitutional test of equality, and even where there is a fraudulent conspiracy to discriminate against a citizen, or a class of citizens, there is no relief unless it can be shown that the burden imposed is greater than it would have been if all assessments had been made at their true value in money. See, also, Louisville R. R. Co. v. Commonwealth Ky., 49 S. W. Rep., 466.
We do not intend to be understood as going to the extent of holding an assessment conclusive in case of collusion and conspiracy to fix upon one
In accord with our view are many cases and authorities. 25 Am. & Eng. Enc. Law, 65, and Note S.
In Pacific Hotel Co. v. Lib., 83 Ill., 684, it is said in substance: ‘e If it appears that an assessment is not greater than the taxpayer could be called on to pay, it is immaterial.” In a similar case it was refused to set aside the assessment by certiorari or to restrain the collection by injunction. State v. Morris, 48 N. J. Law, 99; Union Pac. R. R. v. Lincoln Co., 21 Dill., 279.
The remedy offered the taxpayer in such cases is to have his neighbor’s assessment raised to its proper basis. 25 Am. & Eng. Enc. Law, 451. See, also, Perry’s Petition, 16 N. H., 43; Edes v. Boardman, 58 N. H., 586.
We are not unmindful that there are some authorities holding a contrary doctrine, and we are referred especially to the Tennessee Railroad cases, 26 Fed. Rep., 168; and, Taylor v. L. & N. R. R. Co., 88 Fed Rep., 350; Merc. Nat. Bank v. Hub
In the case of Taylor v. The Railroad, 88 Fed. Rep., 350, the Circuit Judge of the United States recognized the doctrine of proportionate valuations. Whether this holding was correct or not, under the statute as it then stood, we do not stop to consider. It is apparent that the Act of 1899 intended to do away with this view by providing for a valuation upon a cash basis alone, and this is made so prominent in the various sections of the Act that no room is left for any question as to the legislative intent. In the Taylor case the Court found itself confronted, as it says, by a serious dilemma, to wit, that the Constitution required assessments to be made upon the true cash value, and, at the same time, to be equal and uniform. But the Court found that, while the State and County Assessors had systematically, and by what amounted to a pre-concert of action, disregarded the law and assessed property upon a percentage of value, the Railroad Assessors had attempted to comply with the law by assessing- at actual value. The result was that railroad property was assessed upon a higher basis than other property, and taxes were not made equal and
This expression is used in pointing out the difference in the mode of assessing real estate under the Constitution of 1796, and the subsequent constitutions of 1834 and 1870, the former assessing taxes by the lot or tract, and the latter by value, and not by the tract, and the clear meaning of the expression used is that • every property tax shall be determined by the value of the property and not by the tract. But it by no means warrants the idea that a percentage of value may be made the basis of assessment, but, on the contrary, the ‘ ‘ actual value, ” or ‘ ‘ true value, ” or “ cash value, ’ ’ the expressions being synonymous, are made the basis by which the tax or value must be graduated or
It was evidently the purpose of the General Assembly, in the Act of 1899, to escape the percentage valuation idea as to any and every kind of taxable property, and fix upon the actual cash value as the basis upon which all assessments should be made so as to meet both requirements of the Constitution, the assessment of property at its value, and at the same time taxation should be equal and uniform. The Constitution of 1870, Art. 2, Sec. 28, directs that all property shall be taxed according to value, that value to be ascertained in such manner as the Legislature may direct, so that taxes shall be equal and uniform throughout the State, and so that no species of property from which a tax may be collected shall be taxed heavier than any other species of property of the same value. The Legislature of 1899, by the Act under which this assessment was made, directed the manner in which the actual cash value should be ascertained, and this, under the Constitution, it had the power to do, and did do, and its action and mode is final and conclusive. The impracticability of adopting any other than the actual cash value as
We are of opinion, for the reasons stated, that complainant is entitled to no relief, and the decree of the Court below dismissing his bill is affirmed with costs.
