Bynum Bros. v. State

• Decision Date: 24 March 1927
• Docket Number: 6 Div. 866
• Citation: 216 Ala. 102,112 So. 348
• Parties: BYNUM BROS. v. STATE
• Court: Alabama Supreme Court

112 So. 348

216 Ala. 102

BYNUM BROS. v. STATE

6 Div. 866

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Proceeding by the State of Alabama to assess the property of J.P. Bynum and others, doing business as Bynum Bros., for taxation. From the judgment, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Ward Nash & Findley, of Oneonta, for appellants.

Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen and J.T. Johnson, of Oneonta, for the State.

THOMAS J.

The legal proceeding had, in the nature of civil action, was in an endeavor to fix the value of appellants' property for the tax year 1925. The statutes having application are found in the general revenue bill approved August 22, 1923. Gen.Acts 1923, p. 172, § 32 et seq.

There are assignments of error based on the refusal of requested charges, and when the instruction sought invades the province of the jury it should be refused. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Miller v. Whittington, 202 Ala. 406, 80 So. 499; Gov. Street Lumber Co. v. Ollinger, 18 Ala.App. 518, 94 So. 177. It is insisted by the state's counsel that refused charges 2 to 6 inclusive invade the province of the jury, and that refused charge 1 was misleading in the instruction for consideration of "the assessment of adjoining and similar property."

It is provided by statute, sections 32, 34, Acts of 1923, pp. 172, 173:

"*** Persons having in their possession goods, wares or merchandise belonging to another, and subject to taxation in any county, city or town in Alabama, where said property is located, when the owner of the property does not reside in the county are deemed to be owners of the property in their possession for the purpose of assessment, and unless such goods, wares or merchandise have been otherwise listed for taxation the same shall be assessed to the person, firm or corporation who has such goods in their possession; and in no case shall the assessment be less than sixty per cent. of the fair and reasonable market value of the average amount of goods, wares or merchandise so held during the twelve months next preceding the first day of October when same are due to be assessed for taxation. ***

"For the purpose of assessment, real and personal property shall be estimated at its fair market value, according to the best judgment the assessor and the board of review can form upon information, inspection and otherwise, taking into consideration, if real estate, its location, whether in town, city or county, and whether it is vacant, or is occupied or in use, and if occupied and in use, the rent derived therefrom, its proximity to local advantages, its quality of soil, growth of timber, mines, minerals, or coal beds, and the amount and character of the improvements thereon; and mineral and timber interests when they have been severed in ownership from the soil, by sale or otherwise, shall be separately assessed."

Refused charge 1 was therefore misleading. This is without regard to the omission of the word "take" after the words "assessed at" and before the words "into consideration." The word "that" as used in the context of charge No. 1, found in the bill of exceptions, was, by misprision in transcribing, written for the word "take." In a pleading the context would correct such error in transcription. However, the record proper uses the word "take" instead of "that."

The assessment of adjoining and similar property was inter alios acta. The issue was a percentage of the "fair market value" of the real estate, taking into consideration "its location, whether in town, city or county, and whether it is vacant, or is occupied or in use, and if occupied and in use, the rent derived therefrom, its proximity to local advantages, its quality of soil, growth of timber, mines, minerals, or coal beds, and the amount and character of the improvements thereon." Long Distance Telephone Co. v. Schmidt, 157 Ala. 391, 47 So. 731; State v. Sage Land Co., 118 Ala. 677, 23 So. 637; 37 Cyc. 1010. Likewise, there was no error in refusing to permit, on due objection, evidence as to what other real property was assessed during the same year. The market value is illustrated by recent sale of like properties. In Ala. Mineral Land Co. v. County Com'rs of Perry, 95 Ala. 105, 107, 10 So. 550, 551, it was declared:

"In fixing the taxable value of lands, it would perhaps be proper to receive evidence of the value of similar property under similar conditions, as a feature of the 'surroundings' within the meaning of that expression as used in the statute, and as affording a criterion from which the value of the property in question could be deduced. Johnson v. West, 43 Ala. 689; 7 Am. & Eng.Ency. of Law, 60. *** The valuation of property as found upon the tax-books represents either the ex parte statement of the owner thereof in his return, or the conclusion of the assessor or of the commissioners' court from information, inspection or otherwise. The declaration of the owner would not be admissible against any person other than himself or some one in privity with him. The decision of the assessor, or of the commissioners' court, would not be admissible against a stranger to the proceeding in which the decision was rendered. Such stranger, in offering proof of such valuation of the property of others, claims the benefit of evidence which would not be available against him. A valuation of his own property, in which he does not participate, is inadmissible, if objected to by him. Birmingham Mineral R. Co. v. Smith, 89 Ala. 305 . It is not permissible to prove a fact pertinent to the issue in a case by showing that some one not a party to the suit has made an oral or written statement in reference to such fact, or by producing evidence of the conclusion reached in another proceeding which involved the same question but was between parties who are strangers to the pending suit." State v. Brintle, 207 Ala. 500, 502, 93 So. 429.

The inquiry of the reasonable market value of other like property in the same community is admissible for the purpose of testing the witness giving the opinion evidence of the market value and as affording a criterion from which the value of the property in question may be deduced. Ala. Min. Land Co. v. County Com'rs, 95 Ala. 101, 10 So. 550; Tennessee Coal, Iron & R. Co. v. State, 141 Ala. 103, 37 So. 433; State v. Brintle, 207 Ala. 500, 93 So. 429; Dean v. Board of Education, 210 Ala. 256, 97 So. 741.

We are not impressed with the insistence of the state's counsel that refused charges 2 to 6, inclusive, invade the province of the jury. It was the request of the effect of the...