State ex rel. Bank of Marlboro v. Covington

35 S.C. 245 | S.C. | 1892

The opinion of the court was delivered' by

Mr. Justice McGowan.

This is a petition by the Bank of Marlboro for a writ of mandamus to compel the auditor of Marlboro County to restore to his own tax list and the duplicate in the possession of the treasurer of Marlboro County, the assessment of its property, as lawfully fixed by the proper boards, and, as alleged, unlawfully altered and increased by the said auditor.

As stated, the president of the bank, in January, 1891, duly returned to said auditor the capital stock of said bank at the sum of $73,185, while the par value thereof was only $59,500. The president, in his return, estimated each share, $100, to be worth $123. This return was duly submitted by the county auditor to the board of assessors, who assessed the real value for taxation of the capital stock of the said bank at par, to wit, $59,-500. This action of the township assessors was, at a regular meeting of the county board of equalization, duly considered and approved by them, and the auditor was directed to enter the same upon' his own and treasurer’s duplicate, which he did. The comptroller general instructed the said auditor to have the assessment increased, llccordingly, about the first day of November last, the auditor, under section 239, proceeded to take testimony as to the market value of the stock of said bank, and, against the protest of the president, increased, the assessment to $77,350, estimating each share to be worth $130 on the market, and in accordance with such increased valuation, changed the figures upon his own and the treasurer’s duplicate.

Thereupon the bank filed, in the Court of Common Pleas, a petition for a writ of mandamus, against Eli T. Covington, as auditor of Marlboro County, commanding him to return to the tax duplicate and tax list the valuation of the bank’s property at the assessed sum of $59,500, and to erase and remove any other assessments placed thereon, to wit, the addition made thereto by him, &c., and for such order as may be necessary and proper in the premises. The writ was made returnable before Judge Hudson, Circuit Judge of the Fourth Circuit, at chambers. The auditor in his return to the writ admitted the allegations of the petition, and showed for cause that his acts in the premises were authorized by section 239 of the General Statutes, and, further, that the increased assessment had been -reported to the comptroller general, and that the matter was now beyond his control.

His honor, Judge Hudson, heard argument, and, among other things, held as follows: “It was not the intention of the law to confer upon the county auditor the right to review, reverse, alter, or modify the action of the board of township assessors or board of equalization, in fixing the value of property fully returned and duly considered by them. The bank made a full return, keeping nothing concealed, and placed a value upon the property above par, and so high that both boards of assessors, after mature deliberation, saw fit to reduce it to par. The auditor acts as clerk in the county board of equalization. Section 229 (General Statutes) expressly forbids the county auditor to increase a return of property as made by a taxpayer or by his or her agent, except upon authority of the board of assessors. Section 257 imperatively commands that the county auditor, “shall add to or deduct from the valuation of the real or personal property of individuals, companies, or corporations, such sum or sums as may be ordered by either of the said boards,” &c., &c., and so ruling, his honor granted the writ as prayed for.

From this order Eli T. Covington, the auditor, appeals to this court on the following grounds: “I. Because his honor erred in granting the peremptory writ on the ground that the county auditor is only required to perform under its mandate a plain ministerial duty. II. Because his honor erred in holding that the county auditor had no authority, under section 239 of General Statutes, to summon parties and witnesses before him to determine the value of the bank stock. III. Because his honor erred in holding that the county auditor had no authority to change the assessments made by the different boards of the bank stock, or to determine its value under section 239. IV. Because his honor erred in holding that section 239 of the General Statutes only applied in cases where there was fraud, and the auditor could only act under it to detect and punish fraud in tax returns. V. Because his honor erred in holding that section 257 makes it the imperative duty of the auditor to enter the amounts ordered by the boards, and he would not have the right to change the same under section 239, except in case of fraud. VI. Because his honor erred in holding that the auditor in his action in this case was not in the lawful exercise of a judicial discretion in examining witnesses and determining the value of the bank stock under section 239. VII. Because his honor erred in holding that section 239 of General Statutes had no application to this case. VIII. Because his honor erred in granting the peremptory mandamus commanding the auditor to change the assessments, made by him under the law, of the bank stock in the duplicate. IX. Because his honor erred in holding that the Bark of Marlboro had no adequate legal remedy.”

1 Our law upon the subject of the assessment of property for taxation is contained in the General Statutes, title III., from section 164 to 320, both inclusive. It will be seen that the provisions are very numerous, and some of them are seemingly not in perfect accord, but being in pari materia, we must endeavor to construe them together, so as, if possible, to make one consistent system. In the machinery adopted for the purpose of getting a true assessment, it seems that the first step is for the taxpayer to make a return on oath, as to his property and its value. In the case of a bank, the president and cashier make the return, giving the names and residences of the stockholders, &c. These returns are delivered to the county auditor. Second. The auditor then submits the return to the township board of assessors, whose duty it is to assess the value of the property in the return. It shall be the duty of the auditor to state in the column of remarks, opposite each taxpayer’s name, in the return made by him, any amount which he believes ought to be added to the valuation of the property listed by such taxpayer. But he shall not increase the return made by any taxpayer, except by authority of the board of assessors. See section 229. Third. The chairman of the different boards of assessors in the several counties (except Charleston), constitute the county board of equalization, of which the county auditor is the clerk, who lays the return before the boards, which “shall hear all grievances, and anjr person whose property has been assessed above its true value, who cannot secure relief from said board, shall have the right to appeal to the comptroller general of the State," and this seems to be the only appeal provided for in the whole act.

There can be no doubt that this is the usual and regular course to obtain the true and authoritative assessment desired; and it seems to me, that these successive boards — appointed and sworn for the express purpose of exorcising their judgment as to the value of the property — are-charged with at least quasi judicial duties, and when they have acted, especially when they concur in their action, the matter, in the absence of mistake or fraudulent collusion, is final and conclusive, res adjudicata, and binding not only upon the taxpayer, but upon the auditor and all other officers of the State. “The jurisdiction of an equalization board, in equalizing valuations for taxation, is exclusive." Cooley on Taxation, 528, 529. “As a general rule, the decisions of officers and tribunals specially created and charged in tax laws with the duty of valuing property for taxation and equalizing such valuations are final and conclusive.” Wagoner v. Loomis, 37 Ohio St., 571. See County of Richland v. Miller, clerk, 16 S. C., 236.

2 But it is urged that section 239 is in conflict with this view, and gives the auditor the right to summon parties and witnesses before him to determine the value of the property returned — bank stock, &c. It is true that the section indicated, and those immediately following it (241, 242, and 243), seem to give the auditor quasi judicial powers, to examine parties and witnesses and make or alter assessments in a certain class of cases. That class, however, is not very clearly defined or limited, but we think it plain, at least to this extent, that the provision was not intended to be general, but. special and exceptional in character. It reads as follows : “If the auditor shall suspect or.be informed that any person, corporation, or company has evaded making a return, or has made a false return of his or their personal property for taxation, or has not made a full return, or that the valuation is less'than it should have been, according to the rules prescribed by this chapter, he shall, at any time before the settlement with the treasurer for the year, notify such party, and also such parties as he may desire to examine, to appear before him at his office, at a time fixed in said notice, and the party and any witnesses called shall be examined by the auditor, under oath, touching the personal property of such party, and the value thereof, and everything tending to evince the true amount such party should have returned for taxation,” &c.

It will be observed that no mention is made in the section of cases already determined by the boards, nor is any appeal expressly given to the auditor from a decision of the boards. It seems to us that this exceptional power given by the section, authorizing the county auditor to examine witnesses, and in certain cases to attach penalties, &c., does not necessarily conflict with the general powers given by other sections to the boards of assessors; and, therefore, the auditor had no rightful authority to disregard a decision regularly made and the assessment entered on the duplicate for taxation, by order of the board of assessors. It is a well settled rule, that in construing an act of the legislature, effect should be given to every part of it. We do not think that it was the intention of the law makers, that section 239 should apply to all cases, including those regularly decided by the boards of assessors. If so, the whole machinery of the boards, so carefully provided in detail for fixing assessments, would be entirely useless, substantially repealed by implication, and the whole subject of assessments left virtually under the control of a single officer, who, by another section of the same act, is in express terms prohibited from increasing the return as made by any taxpayer, except by authority of the board of assessors. The court does not feel at liberty to assume that the act was so framed as that one part of it must necessarily abrogate the other. As we conceive, by proper construction, all the provisions, those creating the general jurisdiction of the boards, as well as that giving the special and exceptional powers to the auditor — may stand together, each in full force within its own proper limits. I agree that it was not the intention of the law to confer upon the auditor the right to review, reverse, alter, or modify the action of the boards of assessors and equalization, in fixing the valuation of property, fully returned and duly considered by them.

3 In the view we take, the duty of the auditor in this case, was purely ministerial as he at first performed it; and mandamus is the proper remedy, to require the assessment to be restored as originally entered by order of the boards of assessors and equalization. See the cases of The National Bank of Newberry, lately decided by this court.¹

The judgment of the court is, that the judgment of the Circuit Judge be affirmed, and the appeal dismissed.

1 Ante, pps. 213 and 233.