| Ala. | Apr 5, 1917
The appeal is from an order of the circuit court granting to the petitioner a peremptory writ of mandamus commanding the respondents — who are respectively the tax assessor, the" tax collector, and the three members of the
Two questions are presented by the appeal:
While there is for many purposes a distinction between state and county officers (Ex parte Wiley, 54 Ala. 226" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/ex-parte-wiley-6509260?utm_source=webapp" opinion_id="6509260">54 Ala. 226, 228), yet many county officers are clothed with powers and duties to be exercised in behalf of the state, albeit their functions are restricted to the territorial limits of the county, for which they are elected or appointed. This is manifestly true of all officers who share in the valuation and assessment of property for taxation, there being but one assessment for both state and county purposes. In the present case these respondents have no personal interest in the subject of litigation, but are the representatives of the state and the public — the real and only party in interest. In Reynolds, Auditor, v. Blue, 47 Ala. 711" court="Ala." date_filed="1872-01-15" href="https://app.midpage.ai/document/reynolds-v-blue-6508251?utm_source=webapp" opinion_id="6508251">47 Ala. 711, it was said, per Peck, C. J.: “The motion to dismiss the appeal because security for the costs of the appeal was not given must be overruled. This proceeding is essentially, except as to the name of the party against whom it is instituted, a proceeding against the state. The appellant, as auditor, has no interest in the matter, except in so far as it is his duty, as a public state officer, to protect the interests of the state, and he ought to be permitted to do this without subjecting himself, individually, for the costs. * * * If not within the letter, such cases are within the spirit of section 3487 of the Revised Code.”
We approve the soundness of .the decision and its application here requires the overruling of appellee’s motion to dismiss the appeal for want of security for costs.
A county board of equalization, as created and regulated by the act of September 14, 1915 (Geji. Acts 1915, p. 413), is com
The authorities are uniform to the conclusion that: “Where an assessment is required to be made by a board composed of several oificers, the law intends that it shall be the joint act of all the- members of the board, and an assessment made by one or more members without the concurrence of the rest is invalid, unless it is adopted by the full board.” — 37 Cyc. 983, c, citing the cases.
“The exception to this rule is that the action of a majority of the board will be legally sufficient where joint or concurrent action has been attempted and has failed, either because some of the members refuse to act or because of an irreconciliable difference of opinion. — 37 Cyc. 984, c.
Mr. • Burroughs says: “The weight of authority is that a majority of the assessors required by law, duly qualified, may act, and their acts are as valid as if done by all of the assessors. But the act must be that of the majority, and where it appears that it is only the act of one assessor, where the law requires several, it is void. Nor does it give any validity to the act, where there are five assessors, to show that it was the usage in the town to divide it into districts, and each assessor to act independently of the others in making the assessment. Such an assessment is the act of one assessor, and not of all or a majority. Their duties cannot be performed by deputy.” — Burroughs on Taxation, § 94;
In any case the valuation or assessment must be the act of the board, directed by at least a majority of its members, whether it be based upon an original joint agreement, or upon the opinion of a minority adopted by the board. A county board of equalization is a body of limited statutory powers. When it acts it must proceed in accordance with the mandates of the law of its creation. To hold that the act of one member of the board of three is binding upon the state or the citizen would be subversive 'of law and policy alike. Nor can such a result be validated merely because the members of the board have so agreed, nor because the property owner has consented to that procedure. Neither custom nor agreement can set aside the mandates of public law involving the interests of the state.—State v. Hall, 172 Ala. 316" court="Ala." date_filed="1911-02-09" href="https://app.midpage.ai/document/state-v-hall-7365641?utm_source=webapp" opinion_id="7365641">172 Ala. 316, 54 South. 560.
It has, indeed, been held that when two of the three judges of this court were disqualified to act, the parties might by written agreement, filed of record, qualify the single remaining judge, either alone or in conjunction with special judges agreed upon, to render the judgment of the court.—Bullard v. Lambert, 40 Ala. 204" court="Ala." date_filed="1866-06-15" href="https://app.midpage.ai/document/bullard-v-lambert-6507253?utm_source=webapp" opinion_id="6507253">40 Ala. 204; Donnell v. Hamilton, 77 Ala. 610" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/donnell-v-hamilton-6512178?utm_source=webapp" opinion_id="6512178">77 Ala. 610. This was upheld because it was done under the solemnly recorded agreement of the parties, which estopped them from denying their own authorization. And it was merely a waiver of their right to judgment by the bench.
In the instant case, while acting as appraisers, and discharging a public judicial duty, the members of the board were without authority to make any agreement for the state in derogation of the express mandates of the law under which alone they were authorized to act. Had the board, as a board, adopted the act of Klyce, a different question would be presented. We have not overlooked the conditions and circumstances under which the board and its members were acting during the session at which this particular valuation of petitioner’s property was made by Klyce, nor the hardship to petitioner by reason of the repudiation by the board of a valuation agreed to by it, in good faith no doubt. But, as we view the case, none of these considerations can affect the result, and their discussion would be useless.
We hold that petitioner does not show itself entitled to the writ commanding the respondents to reinstate upon their respec
The demurrers to the petition should have been sustained, and the judgment of the circuit court will be reversed, and a decree here rendered sustaining the demurrers, in accordance with the views above expressed.
Reversed, rendered, and remanded.