Baird v. Williams

• Citation: 6 S.W. 1,49 Ark. 518
• Parties: BAIRD v. WILLIAMS. KAHN v. VAUGHAN AND STIFFT v. VAUGHAN
• Decision Date: 19 November 1887
• Court: Supreme Court of Arkansas

6 S.W. 1

49 Ark. 518

BAIRD v. WILLIAMS.

KAHN v. VAUGHAN AND STIFFT v. VAUGHAN

Supreme Court of Arkansas

November 19, 1887

APPEAL from Pulaski Chancery Court, D. W. CARROLL, Chancellor.

APPEALS from Pulaski Circuit Court, J. W. MARTIN, Judge.

Judgment affirmed.

J. M Rose, J. M. Moore, John McClure, E. W. Kimball, for appellants, made oral argument.

Cohn & Cohn also for appellants.

1. Section 5687 and succeeding sections Mansfield's Digest and acts 1887, secs. 32 and 33 amendatory thereof, are unconstitutional, in so far as they provide for the appointment by the Governor of three persons, to perform the duties prescribed. Art. 7, sec. 46, Const. 1874; Mansf. Dig sec. 5687, et seq; Acts 1887, pp, 163, 164.

The members of this board are Assessors (46 Ark. 386; 47 Cal. 646), and Assessors must be elected. Cases supra, 37 N.Y. 428; Cooley Tax., 1st ed., 291, note 1; 47 Cal. 646.

2. The board could not arbitrarily raise the values, or add to personal assessments, without complaint. 28 Cal. 107, 111; 44 id., 323-4; Burrough's Tax., 237; Acts 1887, 164.

3. Notice was necessary. 13 Cal. 325; 38 N.J.L. 82; 44 Mich. 587; 74 N.Y. 183-8; 61 Md. 554; 3 Neb. 43; 50 Ill. 424. Not sufficient to first adjudge and then notify. 33 N.J.L. 82.

4. Evidence was necessary. 35 Ohio St. 397; 57 Wis. 5.

Dan W. Jones, Attorney General, and Blackwood & Williams, for appellees.

Unless there is something in sec. 46, art. 7, and sec. 5, art. 16, Const. 1874, which are restrictive upon the Legislature in reference to providing for this board and the powers given, the validity of the act must be sustained. 27 Ark. 176; 34 id., 166.

47 Cal. 661, relied on by appellants was decided upon the peculiar language of the Constitution of California, requiring Assessors to be elected.

This same question has been substantially decided in the railroad assessment cases in this State. 41 Ark. 509; 44 id., 17; 46 id., 312. See, also, 78 Va. 269; 76 Ill. 198; 46 Ark. 383; 64 Mo. 294.

2. Sec. 33, Acts 1887, p. 164, gave the board "power to hear complaints, and to equalize by adding to or taking from," etc., but no formal, technical complaint, in a legal sense, was required. Any one aggrieved might complain to the board, and they would hear him, and act upon his complaint. That was a part of their power, but not a prerequisite to jurisdiction. It is apparent from section 52 that it was not contemplated that the party should be present, but it provided him a remedy and made it the duty of the board to notify him.

That the act is constitutional; that no effort has been made to deprive any one of any right without due process of law; and that every protection to persons interested has been provided for; every one aggrieved having a remedy pointed out, and the right to be heard by a judicial tribunal. See as sustaining our views: Cooley Tax., pp. 361-7; 775 et seq.; 13 F. 722; 18 F. 386; 95 U.S. 701; 111 U.S. 701; 26 Pa. 235; 30 Iowa 531; 36 N.J.L. 86; 20 Ohio 168; 30 Kan. 166; 12 Neb. 87; 18 Ark. 380; 61 Md. 546; 58 Me. 390; 115 U.S. 321; 18 How., 272; 18 Wall., 206, 231; 92 U.S. 575, 609; 28 Ark. 270; 3 Bush. (Ky.), 648; Const. (Ky.), art. 6, sec. 11, and art. 4, sec. 30.

OPINION

COCKRILL, C. J.

These appeals have been argued as one cause. Each of the appellants is a taxpayer of Pulaski county, the assessment of whose personal property as made out by him and returned by the County Assessor, has been increased by the County Board for the equalization of taxes. Kahn's assessment as returned by the Assessor, was $ 4450. It was increased by the board to $ 12,450; Stifft's was raised from $ 5150 to $ 12,150, and Baird & Bright's from $ 5000 to $ 10,000.

The cases of Kahn and Stifft are appeals from the Pulaski Circuit Court, one originating in an application to that court for a writ of certiorari to quash the proceedings of the board as far as they relate to his property; while the other was heard there on appeal from the County Court where an application in the nature of an appeal from the finding of the board, to reduce the assessment, had been considered. The case of Baird & Bright is an appeal from a decree of the Pulaski Chancery Court dismissing their bill to enjoin Ham O. Williams, as County Clerk, from extending the assessment of their property as raised by the board, upon the tax books of the county. The action of the board was sustained in each instance, and the cases have been brought here through different channels to avoid, as counsel agree, all contest about the mode of procedure to raise the substantial questions at issue.

I. The validity of the act of the Legislature which authorizes the appointment of the board is assailed. The argument is that the Constitution directs the election of one Assessor by the electors of each county, while the act in question attempts to authorize the Governor to appoint three persons whose duties, as prescribed by it, are such as the framers of the Constitution contemplated should be performed by the Assessor, and thus undertakes to establish an agency for ascertaining the value of property for taxation in violation of the Constitution.

The chief provision of the Constitution upon the subject of taxation is as follows:

"All property subject to taxation shall be taxed according to its value; that value to be ascertained in such manner as the General Assembly shall direct, making the same uniform throughout the State. No one species of property from which a tax may be collected, shall be taxed higher than another species of property of equal value. * * *" Sec. 5, art. 16.

The governing idea of this provision is that the burden of taxation shall be equally and uniformly laid upon property in proportion to its value. As a means to the attainment of this end, assessments for taxation should be made by the same standard and as near the actual value of the property assessed as possible. It is a violation of the mandate contained in this provision to return any property for assessment at less than its value. If the law is enforced, every person will contribute to the public revenue in proportion to the value of the property owned by him.

Neither of the appellants here complains that the valuation fixed by the Board of Equalization exceeds the value of his personal property subject to taxation. There is no showing that the action of the board has worked injustice to any one. The argument is simply that the return of the County Assessor is a finality and concludes all further inquiry as to valuation, notwithstanding his return may state the value of the property of a particular individual at only a half, or it may be a hundredth part of its true value, when all other property is fairly assessed.

The statement of the proposition shows its want of conformity to the constitutional mandate of equality and uniformity; and the existence of the discrepancies disclosed by the record (taking the findings of the board as correct) demonstrates the necessity for the legislative attempt to give practical operation to the Constitution by the creation of boards for the correction of such inequalities.

That inequalities exist and will continue to exist, is inherent in the effort to adjust the value of all property to a common standard. No degree of care and diligence on the part of the most competent Assessor can attain perfect equality, or perhaps prevent striking mistakes and oversights in assessments. A near approximation to correctness is the most that can be expected. The difficulty of preserving a just relation between the different parts of the same county, or even the several wards of a city, is enhanced by the necessity of delegating the power of fixing values to the different individuals who act as assistant or deputy Assessors. Experience had taught and the framers of the Constitution must have known, that in a populous and wealthy county like Pulaski, the Assessor, unaided, could not perform the duties of his office so as to approximate uniformity and equality; and the Legislature, recognizing the necessity, have continued the practice that prevailed prior to the adoption of the present Constitution, of providing assistant Assessors to aid in the work. Their returns of the valuation of the same class of property may be widely divergent. The necessity of the case, in view of the immense labor to be performed, commonly forces the Assessor to take their returns as correct. If the Legislature is powerless to undertake the correction of these discrepancies and the obvious errors that creep into the system, then the most important security that has been devised for the benefit of the tax payer may be rendered useless. An under-assessment for taxation, whether arising from an honest intention and belief on the part of the Assessor, or from a concealment or misrepresentation of facts by the tax payer, is an injury to the public. The burden of every other tax payer is increased to make up the deficit. An over-valuation is an oppression to the individual. Both are violations of the constitutional provision above quoted; and if the Legislature is restrained, as is contended, from exercising the power of properly adjusting the burden between the tax payers, the provision containing the inhibition must be very plainly irreconcilable with the right to exercise that power.

Is the provision relied upon inconsistent with the power to equalize the assessments? It seems clear to us that it is not. The provision is as follows: "The qualified electors of each county shall elect one Sheriff, who shall be ex-officio collector of taxes unless otherwise provided by law, one Assessor, one Coroner, one Treasurer, who shall be ex-officio treasurer of the common school fund of the county, and one County surveyor, for the...