State Tax Commission v. Bailey & Howard, 60 So. 913

State Tax Commission v. Bailey & Howard

60 So. 913 | Ala. | 1912

Lead Opinion

ANDERSON, J.

The Legislature has the inherent right to provide for the levy and assessment of taxes so long as acting within the limits of the Constitution, and in pursuance of this authority has created a State Tax Commission, with general supervisory powers over all subordinate officers charged with the assessment of taxes and the valuation of property. These powers are set forth in section 2223 of the Code of 1907. Subdivision 13 of said section authorizes the State Tax Commissioners to “set aside and hold for naught any valuation' or assessment of property made by any county officer within this state or by any board of revenue or court of county commissioners, or by any other officers authorized to make assessments, and to reassess or revalue said property whether the original valúa-, tion or assessment be made by the property owner or by an officer of the state or of any county board of revenue or court of county commissioners of the several counties in this state, unless the valuation or assessment shall have been previously, in the same tax year, confirmed or determined by a court of record on appeal.” The State Tax Commission has no right to disturb a valuation fixed during the same tax year by a court of record, upon appeal, but this does not, of course, apply to a valuation fixed by the commissioners’ court, as the valuation by said court is not upon appeal. Therefore the right of the State Tax Commission to revise assessments is not limited as to assessments fixed by officers, boards, or courts, except upon appeal in the circuit court or court of like jurisdiction, and the only limitation of their right was contained in section 2232 of the Code of 1907, amended by subdivision 36d, Acts 1911, p. 188, and which says: “When any assessment has been made or valuation fixed by the State Tax Commission or by a county tax commissioner or by the *626judgment of any court of record, the property so assessed, shall not be assessed at any greater or less valuation or for any greater or less amount for the next succeeding year, unless there shall be a change in the condition of improvements on said property, in which event the assessment may be increased or reduced to the extent only of the increase or reduction of the value of the improvements.” This restriction does not prevent the State Tax Commission from raising the tax during the current year as assessed for said year, unless the valuation had been fixed by the state or county tax commission, or by a judgment of a court of record for the next preceding year. Subdivision 13 of section 2223, among other things, authorizes the State Tax '.Commission “to set aside and hold for naught any valuation or assessment of property made by any county officer within this state or by any board of revenue or court oí county- commissioners, or by any other officers authorized to make assessments.”

It must be noted that the State Tax Commission have the authority to set aside a final assessment made by the commissioners’ court, and in doing this there is no invasion by one department of the state of the province of another, as prohibited by section 43 of the . Constitution. If the act of the board of revenue or commissioners’ court in fixing the valuation is a judicial act, then the act of the state board in vacating same and reassessing the property is also a judicial act. On the other hand, if we concede the appellee’s contention that the action of the state board is not judicial, but is a ministerial act of legislative or executive character, the concession would put the petitioner (the appellee here) out of court. “Prohibition is to restrain judicial, and not ministerial, acts, though performed by judges.” Goodwin v. State, 145 Ala. 536, 40 South. 122. We *627think, however, that the action of both boards is jucli— cial in character, and that the Legislature is not prohibited by section 43 of the Constitution from authorizing one to revise, review, or annul the action of the other, and this authority is given the State Tax Com-mission with reference to all other subordinate boards or officers charged with the duty of assessing taxes and valuing property. “The State Board of Equalization, in exercising the functions conferred upon it by law, is exercising judicial functions.” — Orr v. State, 3 Idaho (Hasb.) 190, 28 Pac. 416.

The state has no right of appeal from the judgment of the commissioners’ court, as section 2252 of the Code of 1907 Avas held to have been repealed by the act of 1911 (LaAVS 1911, pp. 159-191) in so far as the state was given the right of appeal. — State v. Ide Cotton Mills, 175 Ala. 539, 57 South. 481. This right was doubtless taken from the state by said act for the obvious reason that the Legislature gave the State Tax Commissioners the authority to protect the state against arbitrary or unjust actions of the commissioners’ court or board of revenue, by setting aside said assessments or valuations.

It may be true, that the statute does not require notice to the owner before setting aside the order of the commissioners’ court or board of revenue, but the OAvner can take nothing by this, as he is not thereby damaged, and cannot be, unless the reassessment raises the valuation of his property and increases his tax, and the statute (section 2288) does require 30 days’ notice before the property can be reassessed, and which Avas given in the present case. No doubt the constitutional requirement of “due process of laAv” applies to tax proceedings, and it is necessary that the taxpayer shall have opportunity to be heard in opposition to the as*628sessment or valuation before his liability is conclusively fixed (37 Cyc. 1082), yet section 2228 fully meets this requirement by providing 30 days’ notice to the owner before the reassessment or revaluation by the State Tax Commissioners.

Section 2265 makes every assessment passed upon by the court of county commissioners final, and gives it the force and effect of a judgment, unless reopened or revised by order of the State Tax Commission, or unless an appeal is taken by the owner within the time prescribed for taking appeals. The statute fixes no limitation as to the time within which the State Tax Commission must act, but it is suggested that it should be done, if at all, within 30 days, for the reason that if said time limit is not fixed, they could set aside said order after the owner had taken an appeal to the circuit court or court of like jurisdiction. The answer to this is that the State Commission might not desire to set it aside until after they found out that the owner was not going to appeal, and would not wish to do so after he had appealed, for the appeal would get the matter in the same tribunal to which it would go in case the owner appealed from the order of the State Tax Commission, and with which said tribunal the interest of the state would have to rest in the end. Again, the owner would not be apt to appeal if the valuation pleased him, but the State Tax Commission would have the right to wait until his time to appeal expired, expecting to protect the interest of the state in the trial court if an appeal' is taken, or by setting aside the order and reassessing the property in case the owner does not appeal.

As to whether or not an assessment may be set aside, after the 1st of October succeeding the expiration of the tax year, we need not decide, as the order of the commissioners’ court, in the present instance, was set *629aside before the expiration of the tax year, and after this was done there was no existing assessment to become final npon the expiration of the said tax year. Nor did the setting aside of this order reinstate the assessment made by the tax assessor. The matter stood just as if no assessment had been made, and there was nothing to become final upon the expiration of the tax year; for, if they set it aside, it ivas held for naught, and they reassess it at any subsequent time, whether within the tax year or not, just as any escape tax could be assessed and collected. This board was created for the purpose of exercising a general superintendence and supervision over the assessment and collection of taxes throughout the entire state, and it was not contemplated that dereliction on the part of their subordinates would result only in a single county, or that the State Commission could exercise its revisory powers in all the counties between the determination of the county commissioners and the 1st of the succeeding October; and, while it may be that said orders had to be set aside before the 1st of October, it is not required that the reassessment and revaluation by the State Commission should be made before that date. It being highly important to the state that tax values should be fair and equal, as well as to the citizens of each county that the burdens of taxation should be equitably borne by property owners in every county, the law not only provides for annual visitations, but contemplates that these officials should have time and opportunity to pass upon the findings of the county commissioners and boards of revenue in every county in the state, if necessary, and we cannot construe the statute so as to cut off their right to revalue or reassess after the expiration of the tax year, especially when they have set aside the assessment during the tax year. In construing this stat*630ute, all constitutional questions that are reasonably doubtful should be resolved in favor of the law, and it should be construed with such breadth and elasticity as to effectuate the legislative intent. As the acts complained of were within the jurisdiction of the State Commissioners, and who had taken the essential steps to acquire and exercise said jurisdiction, the petitioners were not entitled to the writ of prohibition, and the demurrers proceeding upon this theory of the case should have been sustained.

We do not wish to be understood as holding that there is no merit in appellant’s other points, by putting this case off on its merits, for if there was, a decision of same is unnecessary, since the same conclusion can be reached upon the merits of the controversy.

The judgment of the circuit court is reversed in overruling the respondent’s demurrer, proceeding upon the ground discussed, and a judgment is here rendered sustaining said demurrer, and as it goes to the very life of the petition, the same is hereby dismissed.

Reversed and rendered.

Mayfield, Somerville, and de Graffenried, JJ7 '. concur.

Rehearing

ON- REHEARING.

ANDERSON, J.

Section 139 of the Constitution oí 1901 not only vests the judicial powers of the state in the officers therein enumerated, but also in such persons as may be by law invested with powers of a judicial nature. Our present Constitution not only permits the Legislature to create a State Tax Commission, but authorizes it to be invested with judicial powers.' We are not concerned with the fact as to whether or not *631the commissioners’ court is one of record, or whether or not its judgments, when made final, except upon appeals, could or could not be revised, except by a court, as this last point might be conceded without affecting the present question. In any event, the commissioners’ court is of limited jurisdiction, and derives its power to fix or revise assessments of property solely from the statute, and its orders or judgments in this particular are not made final except in the event that no appeal is taken, or in case the same is not reopened or revised by the State Tax Commission. — Section 2265 of the Code of 1907. In other words, the power of the commissioners’- court to act in this respect is derived from the Legislature, and in granting the right to so act the power to revise the finding is expressly reserved to the State Tax Commission, and it has the right to vacate the. order or finding of the commissioners’ court, without notice to the taxpayer, so long as he is given notice before the final assessment is made. — Hacker v. Howe, 72 Neb. 386, 101 N. W. 255.

The case of Sanders v. Cabaniss, 43 Ala. 173, involved a question unlike the foregoing. There the Legislature undertook by an act to annul and vacate final judgments of courts. Here the Legislature created a body with judicial functions as to the assessment of property, and gave the commissioners’ court the authority to act only subject to the revisory power delegated to the State Tax Commission.

We repeat, that unless the act sought to be restrained was judicial, or quasi judicial, as distinguished from a legislative or ministerial act, prohibition is not the proper remedy to prevent action. We do not dispute the proposition that if a judicial body usurps its functions it can be restrained by the writ of prohibition, but the thing that it does or attempts, and which consti*632tutes the usurpation, must be judicial in character and not legislative or ministerial. A judicial officer or body will not be restrained by the writ of prohibition from doing an act although unauthorized, unless the said act is of a judicial nature. — Washington County v. Bowling, 151 Ala. 561, 44 South. 465; State v. Bradley, 134 Ala. 549, 33 South. 339. It, therefore, follows as of necessity, that the act of the State Tax Commission in vacating the assessment of the commissioners’ court and in reassessing the property must be judicial or quasi judicial, else it could not be restrained by the writ of prohibition.

Whether or not the statute, in authorizing a revision of the assessments of county boards, by the State Board (a matter in which the state is vitally interested) is an interference with local self-government is not, as suggested in brief of appellee’s counsel, a question with which this court is concerned, so long as the statute does not violate the Constitution. Neither have we the right or desire to dictate to the said State Board the instances in which they should revise local assessments, as this is a matter to be addressed to its sound discretion in the conscientious discharge of official duty. We simply hold that the statute gives the authority to do so, and that said statute is not repugnant to the Constitution.

Application for rehearing denied.