Doniphan Lumber Company v. Cleburne County

• Decision Date: 28 April 1919
• Docket Number: 198
• Citation: 212 S.W. 308,138 Ark. 449
• Parties: DONIPHAN LUMBER COMPANY v. CLEBURNE COUNTY
• Court: Arkansas Supreme Court

212 S.W. 308

138 Ark. 449

DONIPHAN LUMBER COMPANY v. CLEBURNE COUNTY

No. 198

Supreme Court of Arkansas

April 28, 1919

Appeal from Cleburne Circuit Court; Jno. I. Worthington, Judge affirmed.

Judgment affirmed.

Brundidge & Neelly, for appellant.

1. The assessment was arbitrary and unfair, higher than other lands of the same quality in the neighborhood. 124 Ark. 569; 119 Id. 362; 127 Id. 349.

2. It was error to tax the costs against appellant. Act 234, Acts 1917. The assessment was reduced and the costs should have been awarded against the county. S. & H. Dig., § 787 Ib. par. 810-811; 50 Ark. 416; 9 Wall. 655.

W. R Casey, for appellee.

1. The testimony is not properly abstracted. The findings and judgment are sustained by the evidence and will not be disturbed. 90 Ark. 512; 96 Id. 606. Appellant has failed to duly assign the errors complained of and they may be treated as abandoned. 2 R. C. L. 178; 99 Ark. 490.

2. In the absence of a statute no judgment can be rendered against a county for costs. 7 R. C. L. 789; 120 Ark. 506. This was not a claim against the county. 66 Ark. 243. There is no statute authorizing a judgment against the county for costs. Kirby's Dig., § 965 does not apply. This was a special action under Act 234, Acts 1917. 110 Ark. 117; 46 Id. 383; Kirby's Dig., § 967. Under the law and proof the judgment should be affirmed.

OPINION

HUMPHREYS, J.

On the 1st day of October, 1917, appellant filed a petition in the Cleburne County Court, which was the next succeeding term of court after the assessment and valuation of its property for purposes of taxation, under section 8, Act No. 234, Acts of 1917, seeking to reduce its assessment by the assessor and Boards of Assessment to a fair valuation in the following townships in said county: Center Post, Morgan, Francis Clayton, Saline, Mountain, Pine and River Bend, particularly describing each tract of land and the assessed value thereof. It was alleged in the petition that a good portion of the lands in question were lands from which the timber had been removed, or what is known as "cut-over" lands, and that they were assessed generally at the value of improved lands in cultivation in the same vicinity and community, and, in some instances, assessed at a greater amount than such lands. On November 7th, which was a day of the regular October, 1917, term of said county court, the matter was submitted to the county court upon the petition and the testimony of the various members of the assessment boards of the townships mentioned in petitioner's petition, together with the evidence of B. R. Smith, county tax assessor, upon which the court sustained the assessment made by said Boards of Assessment in all the townships set forth in appellant's petition, except Clayton township, in which township the valuation was reduced to the valuation as originally assessed by appellant. From the judgment sustaining the assessment of the several boards, appellant appealed to the Cleburne Circuit Court by filing an affidavit and executing a bond conditioned that it would prosecute the appeal and save the county all costs on account of the appeal. In the circuit court, appellant filed petition for injunction, or restraining order, to prevent the tax collector from collecting the taxes upon the assessment returned by the several boards. The collector was temporarily restrained under injunction bond given by appellant.

At the September, 1918, term of the circuit court of said county, the cause was heard de novo by the court upon the petition and the several witnesses introduced by appellant and appellee. No finding was made, or judgment rendered, pertaining to the assessment of the lands in Center Post township. The assessments of the lands returned by the several boards in Morgan, Saline and River Bend townships was affirmed. The court reduced the assessment of appellant's lands in Francis township to $ 2.60 per acre, in Mountain township to $ 2.90 per acre, and in Pine township to $ 3.90 per acre; also rendered judgment against appellant for the costs of the proceeding. From the findings and judgment aforesaid of the circuit court, an appeal has been duly prosecuted to this court.

The contention of appellant is that its property, in the several townships set out in the petition, was assessed by the several Boards of Assessment at an unfair valuation in comparison with lands of the same kind and character similarly situated, belonging to other parties. It is provided by the Constitution of the State of Arkansas that "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 equal and uniform throughout the State." Under the Constitution, statutes and adjudications of this State, there must be uniformity in laying taxes upon taxable property. The assessor or assessment boards cannot discriminate against one tract of land in favor of all other property of the same kind in the county. Drew County Timber Co. v. Board of Equalization of Cleveland County, 124 Ark. 569, 187 S.W. 942, and cases there cited in support of the rule thus announced. Unless the undisputed facts in the case establish that the findings and judgment of the circuit court are erroneous, this court cannot reverse on appeal. The case falls within the general rule that the findings of the trial court will not be disturbed by this court on appeal where the findings are sustained by sufficient legal evidence. St Louis & San Francisco Rd. Co. v. Ft. Smith & Van Buren Bridge Dist., 113 Ark. 493, 168 S.W. 1066; Mo. Pac. Rd. Co. v. Conway County Bridge Dist.,...