Carroll v. Alsup

• Decision Date: 08 June 1901
• Parties: CARROLL v. ALSUP et al.
• Court: Tennessee Supreme Court

64 S.W. 193

107 Tenn. 257

CARROLL v. ALSUP et al.

Supreme Court of Tennessee.

June 8, 1901

Appeal from chancery court, Shelby county; F. H. Heiskell Chancellor.

Action by William H. Carroll against J. H. Alsup and others. From a judgment for defendants, plaintiff appeals. Affirmed.

T. B Turley and K. D. McKellar, for appellant.

H. F Walsh, Wm. Messick, and the Attorney General, for appellees.

WILKES J.

This is a bill to recover taxes paid the state and county under protest, and to set aside an assessment of property for taxation. The bill was demurred to, the demurrer was sustained, and the bill dismissed without any relief, and complainant has appealed and assigned errors.

The bill alleges, in substance, that complainant owns real estate in Shelby county for which he gave at public sale $12,200, which was at that time its actual cash value; that prior to 1900 it was assessed for taxation at $13,000, which was in excess of its actual cash value, and these taxes were paid without objection; that, under chapter 435 of the Acts of 1899, this property was assessed at $12,000 or $13,000, and upon complainant's application to the county board of equalization this valuation was reduced to $10,000; that after this the assessment roll of the county of Shelby was transmitted, as the law requires, to the state board of equalization, at the capital of the state, to the end that the assessment of property in the several counties of the state should be equalized. The bill charges that this state board had jurisdiction to classify the assessments in the several counties by wards and districts, or in such manner as the board might deem best to enable it justly and equitably to equalize assessments in conformity to the standard of the actual cash value of the property that appeared upon the assessment rolls of the several counties of the state; that this board was a quasi judicial tribunal, composed of the secretary of state, comptroller, and treasurer, and that they were vested by the act with judicial functions, and their jurisdiction was limited and defined by the terms of the act; that the statute provides that all persons shall take notice of the biennial sessions of the board, and does not provide for any other notice; that the law requires the duties of the board to be performed by the treasurer, secretary of state, and comptroller, and that it is not in the power of either of said officers to appoint a substitute to act for and in his stead, but that the treasurer of the state did appoint in his stead, to act for and in his behalf, a distinguished citizen of Tennessee whose capacity and integrity are admitted (Hon. Newton H. White, the present speaker of the senate), and that at each and every session of the board the said White attended and passed judgment upon each and every question coming before the board, and that this was unauthorized, and renders all proceedings by said board illegal and void; that, when the assessment roll was forwarded to the state board, two members of the board, with said White, considered the same, and the comptroller and said White came to Memphis seeking information, as the board was by law authorized to do, and thereafter the board of equalization convened in the capitol at Nashville, and considered all the assessments of the properties in the county of Shelby, and took action thereon, increasing some assessments, but leaving the assessment of real estate untouched, and, after making corrections and changes and proper certificates, they certified their action to the clerk of the county court of Shelby county, to enable him to make proper entries on the tax books, to be turned over to the county trustee of the county of Shelby. The bill further alleges that thereafter the state board recalled the record so certified, and had the same returned to it at Nashville, and that such action on the motion of the board or some of its members was unwarranted and unauthorized, and beyond the jurisdiction of the board; that the assessment on complainant's property, without notice to him, was raised from $10,000 to $10,500, without authority or jurisdiction, and that the provision of the act allowing such changes and increase in valuation without notice to the owner, and making such action final, is unconstitutional and void, and not due process of law, and is repugnant to the constitutions of the United States and the state of Tennessee. The bill further avers that it was not competent for the state board, after having taken action, and leaving untouched the real estate in Shelby county, and certifying the roll to the clerk of the county court, to take any other or further action, except upon proceeding by a taxpayer, in the form of a verified petition, asking for a revision of the quasi judicial action of the members of the board in making an erroneous assessment of his property, and seeking a rehearing of its judgment; that the roll became a finality when acted upon by the board and returned to the county court clerk, and could not be changed on mere notion of the board, without notice to the taxpayer. The allegations of the bill in regard to values are, in substance, these: That property specified in the twenty-second section of the act is assessed at 40 per cent. of its value; that real estate is assessed at from 70 to 80 per cent. of its value; that the property specified in the twenty-eighth section is assessed at 40 per cent., and that railroad property is assessed by the railroad commissioners at 60 per cent., of its value, and that he is entitled to an assessment of his property on an equal and uniform basis with other property; that $7,200, or 60 per cent. of the cash value of his property, would put it on such equal and uniform basis and parity with other property in Shelby county and in the state; and that he tendered taxes on this basis, which the trustee declined to receive. He then tendered taxes upon the property at a valuation of $10,000, which was the valuation fixed by the county board of equalization, which was also refused, and he thereupon paid under protest upon a valuation of $10,500, the amount fixed by the state board of equalization, and brought this suit. It will thus be seen that the complainant in his bill treats $12,000 as the actual cash value of his property, which was assessed at $10,500 by the state board of equalization, or not quite 90 per cent. of its actual cash value. He states that at public sale he gave for this property $12,200, and that was the actual cash value of it when he bought it. The bill further alleges that upon this assessment the city of Memphis will collect taxes for 1901 and 1902, and defendant Alsup is ex officio collector of these taxes, and will proceed to collect upon this assessment. It further charges that the act is unconstitutional, in that it embraces two separate subjects, and they are not expressed in the caption; that is, by section 22 and 23 shares of stock in quasi public and industrial corporations are exempt from taxation, whereas the title and body of the act are to provide revenue, and for equal and uniform assessment of property for taxation. The prayer is that the assessment of $10,500 be declared illegal and void because repugnant to section 28 of article 2 of the constitution, and to section 17 of article 2, and that he have judgment for the taxes paid by him, and that the assessment be canceled and set aside, and that he have such other and further relief as may be equitable and proper under the facts,--general and special. The demurrer is, in substance: (1) That the complainant, having by this bill shown that his property is assessed at less than its actual cash value, has no status, and cannot complain of the assessment merely because other property of other owners is assessed at a still lower valuation. (2) That the notice provided by the statute is all the notice to which the complainant or any other property owner is entitled. (3) That the state board had the jurisdiction to raise the assessment of real estate as it did, and to consider and pass upon the tax assessment for Shelby county as it did. (4) That the bill shows that, when the action of the state board was had, it was acquiesced in and done by the board; and, even if done by a majority of the board, the presence and action of Hon. Newton H. White, a private citizen, did not and could not invalidate the action of the board or a majority. (5) That the act does not embrace two subjects, but only one general subject, and the provision complained of is one prescribing a mode of making an equal and uniform assessment, and the act is not, therefore, unconstitutional and void. The decree of the chancellor recites that the several assignments of demurrer are well taken.

The first assignment of error is, in substance, that the act in controversy (being chapter 435 of the Acts of 1899) is repugnant to section 17 of article 2 of the constitution of the state, in that it embraces two separate and distinct subjects, to wit: (1) The assessment and collection of revenue; and (2) the exemption of a certain class of property from taxation. The title of the act is, "An act to provide more just and equitable laws for the assessment and collection of revenue for state, county and municipal purposes and to repeal all laws in conflict with the provisions of this act, whereby revenue is collected from the assessment of real estate, property, privileges and polls." In support of this assignment are cited the following cases: State v. McCann, 4 Lea, 1; Murphy v State, 9 Lea, 373; Mayor, etc., v. Lewis, 12 Lea, 180; Ragio v. State, 86 Tenn. 272, 6 S.W. 401; Hyman v. State, 87 Tenn. 109, 9 S.W. 372, 1 L. R. A. 497; Bank v. Grocery Co., 97 Tenn. 604, 37 S.W. 390; Kennedy v. Montgomery Co., 98...