Espalla v. Mobile County

• Decision Date: 19 December 1916
• Docket Number: 1 Div. 241
• Citation: 73 So. 761,15 Ala.App. 443
• Parties: ESPALLA v. MOBILE COUNTY.
• Court: Alabama Court of Appeals

73 So. 761

15 Ala.App. 443

ESPALLA v. MOBILE COUNTY.

1 Div. 241

Court of Appeals of Alabama

December 19, 1916

Appeal from City Court of Mobile; O.J. Semmes, Judge.

Action by Joseph Espalla, Jr., against the County of Mobile. Judgment for defendant on demurrer to the complaint, and plaintiff appeals. Reversed and remanded.

Ervin & McAleer, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

EVANS J.

The question presented by this appeal is whether appellant, who is a member of the county board of equalization of Mobile county, may recover his per diem under the statute for sitting after August 1st in special session to complete the business of hearing complaints and objections to assessments and valuations previously fixed by said board. The complaint alleges inter alia that the court of county commissioners of said county fixed the compensation of the members of said board at $10 per day during the time of their service as such members, as authorized by section 70, Acts 1915, p. 386 et seq., that on August 1st a great many taxpayers desired to be heard and offer evidence as to the values of their properties, but their matters were not reached; that on August 2d said county board was convened in special session by the state board of equalization to complete the hearing of objections, etc. The trial court sustained demurrers to the complaint, holding, in effect, that the county board could not lawfully sit beyond August 1st to consummate the hearing of objections, and collect the per diem therefor. In this we think the learned trial court erred. Section 70 of said act provides that "the members of said board shall receive such reasonable compensation for the services herein required" as may be fixed by the court of county commissioners or other court or body of like jurisdiction not to exceed $10 per day each. The allegation in the complaint of the fixing of that amount is, upon demurrer, to be taken as confessed.

Section 77 of said act provides that, "It shall be the duty of the county board of equalization in each county to sit at the court house in their respective counties on the third Monday in June in each year from 9 a.m. to 4 p.m. and shall continue for at least one week, and as much longer as may be necessary, provided they do not sit beyond the first day of August *** for the purpose of hearing objections, if any, to the assessments or the valuations so fixed by said board, and at such meeting any property owner may appear in person, or by agent or attorney," etc.; and if, upon the hearing the assessment or valuation is found incorrect, to correct the same and the corrected amount shall constitute the taxable value.

Section 78 provides that when the board "shall have completed the work of hearing objections," etc., "they, or any two of them, shall certify the correctness of the changes or alterations made in the tax returns," etc.

Section 80 provides that the county board shall have exclusive power to "fix the taxable value of all property" in its county (not specially required to be assessed by the state board), and "to that end may be convened in special session at such time as in the judgment of the chairman or a majority of said board, or the state board of equalization is deemed necessary."

And section 82 provides that:

"The failure of the county board of equalization to perform any of its duties at the time prescribed or to complete its duties within the time specified by this act shall not invalidate any assessment or any act of the board made after the expiration of such time."

The meeting provided by section 77, supra, to be held from the third Monday in June to the second day in August is a quasi judicial procedure designed to accord to the objecting taxpayer his constitutional right to be heard and have his day in court. If there were so many taxpayers desiring to be heard that the statutory time allotted was reasonably inadequate and it were not permissible to convene a special session to consummate the hearings, such construction would be tantamount to arbitrarily depriving taxpayers of their day in court, and thus impinge upon this constitutional right. Hence section 80 provides for just such a contingency by permitting the county boards to "be convened in special session" at any time the officers therein designated deem necessary to properly fix the taxable value of all property in the county. The word "fix" as used in the phrase "fix...