In re Several and Separate Appeals of Overland Co.

• Decision Date: 14 June 1927
• Docket Number: 4447
• Citation: 44 Idaho 385,257 P. 480
• Parties: In the Matter of the Several and Separate Appeals of THE OVERLAND COMPANY, a Corporation, et al., Appellants, v. STEPHEN UTTER, Clerk of the District Court, and STEPHEN UTTER, Clerk of, and JOHN MCGRATH, HERBERT F. LEMP and H. B. ILLINGWORTH, Members of and Constituting the Board of Equalization of Ada County, Idaho, Respondents
• Court: Idaho Supreme Court

257 P. 480

44 Idaho 385

In the Matter of the Several and Separate Appeals of THE OVERLAND COMPANY, a Corporation, et al., Appellants, v. STEPHEN UTTER, Clerk of the District Court, and STEPHEN UTTER, Clerk of, and JOHN MCGRATH, HERBERT F. LEMP and H. B. ILLINGWORTH, Members of and Constituting the Board of Equalization of Ada County, Idaho, Respondents

No. 4447

Supreme Court of Idaho

June 14, 1927

TAXATION-COUNTY BOARD OF EQUALIZATION-CONSTITUTIONAL BODY-PURPOSE OF BOARD - COEXTENSIVE POWERS - STATUTES LIBERALLY CONSTRUED-MANDATORY WORDS, WHEN DIRECTORY ONLY.

1. County board of equalization had authority, under C. S., sec 3152, as amended by Laws 1921, chap. 157, to meet and raise valuations after the third Monday in July, it being sufficient if it completes its business on or before the fourth Monday in July, which is the date that it is required to relinquish jurisdiction by delivering tax-roll to county auditor under secs. 3163, 3164.

2. "County board of equalization," created by Const art. 7, sec. 12, is a constitutional body created for purpose of equalizing values of property subject to taxation, to the end that no taxpayer be discriminated against and that all property owners bear just, fair and equal proportion of expense of government.

3. Statutes are to be liberally construed with a view to effect their objects and to promote justice, in view of C. S., sec 9444.

4. If it is not clear that it was intention of legislature that statute, mandatory in form, should be so construed, courts may construe mandatory words to be directory only.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens and Hon. Dana E. Brinck, District Judges.

Judgment affirming order of board of equalization for Ada county increasing valuations of appellants' property for purposes of taxation. Affirmed.

Judgment affirmed. Costs to respondents.

Hawley & Hawley and Chas. M. Kahn for Appellants.

A county board of equalization is a distinct body and has no inherent powers, but is created and governed by and has no other powers or duties than those granted or imposed by the constitution and statutes. (Const., art. 7, sec. 12; C. S., secs. 3152-3165; Sess. Laws 1921, chap. 157, pp. 350, 351; sec. 21, Revenue Act, p. 404, 1st Sess. Legislature; Rev. Laws 1875, 8th Sess., secs. 74, 75, p. 487; Rev. Stats. 1887, secs. 1475-1485, chap. 5, title 10; Sess. Laws 1895, p. 110; Sess. Laws 1899, p. 454; secs. 1303-1314, Pol. Code of 1900; art. 5, title 10, chap. 1, Rev. Laws 1907, Idaho Rev. Codes; Sess. Laws 1913, chap. 58, p. 173, sec. 207, p. 241; Sess. Laws 1915, pp. 138, 139.)

Jurisdiction and authority of county board of equalization: General Custer Min. Co. v. Van Camp, 2 Idaho 40 (44), 3 P. 22; Feltham v. Board of County Commrs., 10 Idaho 182, 77 P. 332; Humbird Lumber Co. v. Morgan, 10 Idaho 327, 77 P. 433; Gorman v. Board of Commrs., 1 Idaho 553; Orr v. State Board, 3 Idaho 190, 28 P. 416; Evans v. Swendsen, 34 Idaho 290, 200 P. 136.

Strict construction applied to taxing statutes: People v. Moore, 1 Idaho 662; Shoup v. Willis, 2 Idaho (108), 120, 6 P. 124; State v. Title Guaranty & Surety Co., 27 Idaho 752, 152 P. 189; Smith v. Canyon Co., 39 Idaho 222, 226 P. 1070.

Words of sec. 3152 are mandatory in form. (Webster's New Internatl. Dictionary; Inland Lumber etc. Co. v. Thompson, 11 Idaho 508, 114 Am. St. 274, 7 Ann. Cas. 862, 83 P. 933; Armstrong v. Jarron, 21 Idaho 747, 125 P. 170; Choate v. Spencer, 13 Mont. 127, 40 Am. St. 425, 32 P. 651, 20 L. R. A. 424; Prescott v. Gonser, 34 Iowa 175; Lockwood v. Gehlert, 127 N.Y. 241, 27 N.E. 812.)

Legislative intent to make the statute mandatory: Lewis' Sutherland on Stat. Const., 2d ed., pp. 880, 884, 885; State v. Lancashire Fire Ins. Co., 66 Ark. 466, 51 S.W. 633, 45 L. R. A. 348.

Personal notice of time fixed for equalization not required. (Inland Lumber Co. v. Thompson, supra; First Nat. Bank of Weiser v. Washington County, 17 Idaho 306, 315, 105 P. 1053; Board of Commrs. v. Searight Cattle Co., 3 Wyo. 777, 31 P. 268; Idaho Ry., L. & P. Co. v. Monk, 218 F. 682.

Section 3152 was enacted for the benefit of the taxpayer and is mandatory. (French v. Edwards, 80 U.S. (13 Wall.) 506, 20 L.Ed. 703; Wolfenden v. Beaufort, 152 N.C. 83, 67 S.E. 319; Sioux City P. Ry. Co. v. Washington, 3 Neb. 30; Black on Inter. of Laws, p. 553; Matador Land & Cattle Co. v. Custer Co., 28 Mont. 286, 72 P. 662; Martin v. McDiarmid, 55 Ark. 213, 17 S.W. 877; Township of Caledonia v. Rose, 94 Mich. 216, 53 N.W. 927; Powder River Cattle Co. v. Board of Com., 45 F. 323; Smith v. Canyon County, supra; Shoup v. Willis, supra; Bramwell v. Guheen, 3 Idaho 347, 29 P. 110; Oregon Short Line Ry. Co. v. Minidoka County, 31 Idaho 719, 175 P. 962.)

Laurel E. Elam and Sullivan & Sullivan, for Respondents.

Test or rule for determining whether a statute is directory or mandatory: Black on Interpretation of Laws, sec. 152; 2 Lewis' Sutherland on Stat. Const., sec. 611; 1 Cooley on Taxation, 3d ed., p. 476; 36 Cyc. 1157; 25 R. C. L. 767.

The provision of C. S., sec. 3152, as amended, as to time of adjournment is directory only; it was designed to secure order, system and dispatch in equalization proceedings between county officers and the county and state boards of equalization. (Black on Interpretation of Laws, pp. 526, 545, 549; 2 Lewis' Sutherland on Stat. Const., secs. 611, 612, 618; Endlich on Interpretation of Stat., sec 436; 1 Cooley on Taxation, 3d ed., pp. 476, 479, 487, 489; 36 Cyc. 1158, 1160; 29 Cyc. 1432; 26 Am. & Eng. Ency. of Law, 689; 25 R. C. L., 767, 769, 771; 26 R. C. L. 355; French v. Edwards, 80 U.S. (13 Wall.) 506, 20 L.Ed. 703; Erhardt v. Schroeder, 155 U.S. 124, 39 L.Ed. 94; People v. Cook, 8 N.Y. 67, 59 Am. Dec. 451; Walker v. Edmonds, 197 Pa. 645, 47 A. 867; Hooker v. Bond, 118 Mich. 255, 76 N.W. 404; State v. Backus-Brooks Co., 102 Minn. 50, 112 N.W. 863; Armstrong v. Jarron, 21 Idaho 747, 125 P. 170; Idaho Ry., L. & P. Co. v. Monk, 218 F. 682; Baker v. Paxton, 29 Wyo. 500, 215 P. 257; Weisgerber v. Nez Perce Co., 33 Idaho 670, 197 P. 562; Tallon v. Vindicator etc. Min. Co., 59 Colo. 316, 149 P. 108.)

Substantial compliance is all that is necessary; variance treated as a mere irregularity or informality. (Murphy v. Board of Equal., 6 Idaho 745, 59 P. 715; Co-operative Savings & Loan Assn. v. Green, 5 Idaho 660, 51 P. 770; Inland Lumber etc. Co. v. Thompson, 11 Idaho 508, 516, 114 Am. St. 274, 7 Ann. Cas. 862, 83 P. 933; Armstrong v. Jarron, 21 Idaho 748, 125 P. 170; Bacon v. Rice, 14 Idaho 107, 93 P. 511; Stewart v. White, 19 Idaho 60, 112 P. 677; McGowan v. Elder, 19 Idaho 153, 113 P. 102.)

Appearance and objections on merits are a waiver of objections as to time of meeting. (37 Cyc. 1096; First National Bank v. Washington County, 17 Idaho 306, 105 P. 1053.)

BUDGE, J. Taylor and T. Bailey Lee, JJ., concur. Givens, J., disqualified. Wm. E. Lee, C. J., dissents.

OPINION

BUDGE, J.

The board of county commissioners of Ada county, sitting as a board of equalization, made certain increases in the valuations of appellants' property, for the purposes of taxation for the year 1923, over the valuation fixed by the county assessor. The initial action of the board in reference to the proposed increases was taken on July 16, 1923, which was the third Monday of July, 1923, when there was entered in its minutes the following order, omitting the names of the parties, descriptions of the property, and the valuations:

". . . . Whereupon the Board raised the following described real and personal property assessments and directed notice to be served personally by the Sheriff of Ada County, Idaho, upon the owner, or his agent or representative to appear forthwith before the Board and make objections if any he has."

A like order as the above was entered by the board on July 19, 1923, affecting property of three of the parties appellant not included in the order of July 16, 1923.

Notices to the several parties appellant of the increases of the assessments against their property and directions to them "to appear forthwith before the board and make objections, if any," were dated not earlier than July 17, 1923, and served, one upon July 17, and others upon July 18, July 19 and July 21, 1923. The record shows that all of the parties so served, except one, appeared before the board between the dates of July 18 and July 23, 1923, inclusive, either by personal representatives or by filing written objections, and protested against the proposed action of the board in increasing the valuations of their property. On July 23, 1923, the board made its final order of equalization. None of the appellants made any objection before the board on the main ground now urged, --that the action of the board was invalid because the proceedings thereon were had after the statutory time for adjournment. The time objection was first raised on appeal to the district court from the final order increasing the valuations. The cause was submitted in the district court on a stipulation of facts, and judgment was entered therein affirming the action of the board of equalization and its final order. From the judgment of the district court this appeal was taken.

The sole question for determination here is whether the board of equalization had authority or jurisdiction to meet and raise valuations after the third Monday of July, its final order making such increases having been entered on the fourth Monday of July, 1923.

County boards of equalization are created by, and their duty prescribed under, the constitution, art. 7, sec. 12, as follows:

" . . . . The board of county commissioners for the several counties of the state, shall constitute boards of equalization for their respective...