Bailey v. Folsom

• Decision Date: 13 April 1922
• Docket Number: 4 Div. 955.
• Citation: 207 Ala. 329,93 So. 479
• Parties: BAILEY v. FOLSOM, TAX COLLECTOR, ET AL.
• Court: Alabama Supreme Court

93 So. 479

207 Ala. 329

BAILEY v. FOLSOM, TAX COLLECTOR, ET AL.

4 Div. 955.

Supreme Court of Alabama

April 13, 1922

Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.

Bill by W. M. Bailey against Fred Folsom, as Tax Collector, and others, to enjoin levy on or seizure of complainant's property to collect taxes. From a decree sustaining demurrers, complainant appeals. Affirmed.

W. O Mulkey, of Geneva, and J. A. Carnley, of Elba, for appellant.

Harwell G. Davis, Atty. Gen., J. J. Mayfield, Asst. Atty. Gen., and W. W. Sanders, of Elba, for appellees.

McCLELLAN J.

This bill, to which demurrer was sustained in a single aspect, was filed by the appellant, a taxpayer, against the tax officials of Coffee county, seeking to restrain such officials from making any levy or seizure of appellant's property in the threatened effort to collect taxes demandable for the tax year 1919-20-this upon the theory that there had been no legally efficient substitution of lost or destroyed papers and books evidencing the validly effected assessment including valuation, of appellant's real and personal property for taxation for the tax year 1919-20. In substance the allegation of the bill is that the substitution of these lost or destroyed papers and books was undertaken, without any authority, by these tax officials, and that, though apparently valid, these substituted records effected to afford the means for his property's subjection or appropriation to the satisfaction of the tax demands recited in the face of such substituted records. The bill avows the willingness and readiness of appellant to pay his taxes for the tax year 1919-20 whenever the true amount is competently ascertained; he as well as the officials being wholly ignorant of the amount justly demandable. Through amendment of the bill filed August 17, 1921, these defining averments were interposed:

"Complainant avers that he recognizes in this cause the lien of the state of Alabama and county of Coffee, on the property described herein and on property belonging to the complainant for the unpaid tax for the tax year 1919-20, which lien was evidenced by a correct assessment and entries thereof upon the records, which have been lost or destroyed; and it is not the purpose of this complainant to remove such lien as a cloud upon his title, or to ask for its removal; but that of which the complainant complains is the act of the said respondents in concert as herein alleged and without legal authority in substituting in the manner stated to be entered upon the books and records relating to tax matters in Coffee county, as and for the original and without notice to this complainant and proceeding thereunder, that is, under said alleged substituted assessment to demand and collect the tax represented by such assessment. Complainant avers that in the matter of substituting such assessment said respondents were acting without authority."

It is also averred that prior to the loss or destruction of the records mentioned, the assessment for the tax year 1919-20 had been "completed in every respect" and the perfected books delivered to the tax collector as his lawful warrant for collecting the same; and that the assessments thus completed "created a lien," necessarily in favor of the state and county, upon the real and personal property of the complainant.

Both from the averments of the amended bill and from the express avowals of the complainant therethrough it...