Moller-Vandenboom Lumber Co. v. Board of Sup'rs of Attala County

• Citation: 135 Miss. 249,99 So. 823
• Decision Date: 28 April 1924
• Docket Number: 24002
• Parties: MOLLER-VANDENBOOM LUMBER CO. v. BOARD OF SUP'RS OF ATTALA COUNTY [*]
• Court: Mississippi Supreme Court

99 So. 823

135 Miss. 249

MOLLER-VANDENBOOM LUMBER CO. v. BOARD OF SUP'RS OF ATTALA COUNTY ^[*]

No. 24002

Supreme Court of Mississippi

April 28, 1924

Division A

(Division A.) January 1, 1920

TAXATION. Tax laws should be construed together; when appeal from approval of assessment rolls may be taken, stated.

Section 81, Code of 1906 (section 61, Hemingway's Code), and sections 6, 7, 8, 9, and 10, chapter 323, Laws of 1920, an amendment to State Tax Commission Act (section 7769d1 to 7769h1, inclusive, Hemingway's Supplement 1921), are to be construed together in determining when a taxpayer aggrieved at a decision of the board of supervisors as to his assessment for taxes has the right of appeal to the circuit court, and, so construing said statutes, held, that the order of the board of supervisors at its August equalization meeting approving the assessment rolls is not final, but only interlocutory, and there is no right of appeal by the taxpayer until the final order of the board of supervisors approving such rolls, and such final order cannot be entered earlier than the meeting of the board at which the instructions of the state tax commission in reference to horizontal increases and decreases in the assessments are required to be carried out by the board; the time limit for the taking of such appeals being prescribed by section 10 chapter 323, Laws of 1920 (section 7769h1, Hemingway's Supplement 1921).

HON. T L. LAMB, Judge.

APPEAL from circuit court of Attala county, HON. T. L. LAMB, Judge.

Objections by the Moller-Vandenboom Lumber Company to increase of assessment by the board of supervisors of Attala county. Objections disallowed and appeal to the circuit court was dismissed, and the Lumber Company appeals. Affirmed.

Affirmed.

S. L. Dodd, Fulton Thompson, J. Harvey Thompson and Rob't H. Thompson, for appellant.

The action of the circuit court sustaining the new motion and dismissing the appeal was necessarily a holding that the judgment of the board of supervisors appealed from was not a final judgment, because the State Tax Commission had not acted upon the judgment appealed from, or upon the assessment rolls of the county at the time the appeal was prosecuted. There is then but one question presented to this court and that is whether an appeal can be prosecuted from the judgment of the board of supervisors approving an assessment, under Code 1906, section 81, until the State Tax Commission shall have acted upon the assessment rolls of the county. We see nothing in the statute creating the State Tax Commission and giving it powers which repeal, either expressly or by implication, the right to appeal within five days after the rendition of the judgment of the board of supervisors or the adjournment of its term at which the judgment was rendered. It is perfectly manifest that it was not in the mind of the legislature to affect the right of appeal granted by section 81 of the Code.

It does not at all follow, because the State Tax Commission may make alterations and changes in assessments, that the appeal prosecuted in this case was prematurely prosecuted. The statute authorizes appeals and the right to appeal is not destroyed even if the judgment appealed from be interlocutory. Section 81 of the Code of 1906, grants an appeal as a matter of right to an aggrieved taxpayer whose assessment has been raised by the board of supervisors. True the judgment of the board was a final one when section 81 was enacted, but a subsequent statute, even if it made the judgment an interlocutory one cannot and does not destroy the right to appeal from it.

The statute, ch. 323, Laws of Miss. 1920, sec. 10, p. 454, giving taxpayers a right to appeal from a judgment of the board of supervisors raising their assessments in pursuance of general raises made by the State Tax Commission is an appeal from a different judgment from the one appealable under section 81, Code of 1906. The two appeals allowed are from different judgments. The two statutes are not conflicting and the one of 1920 does not repeal Code 1906, section 81.

Think of a case wherein the State Tax Commission made no changes or suggestion for changes in the assessment rolls of a county. A taxpayer could not appeal from an assessment in such case under the statute of 1920. An appeal under the act of 1920 would bring into review only orders made by the board of supervisors in pursuance of action taken by the State Tax Commission. An appeal under section 81 of the Code would bring into review only orders of the board of supervisors made before action on the assessment rolls taken thereon by the State Tax Commission. Had the Lumber Company, the appellant, failed to appeal under section 81 of the Code and had appealed under section 10 of the act of 1920, it could not have complained of the raises made in its assessments of which it complains because an appeal under the act of 1920 would not have involved raises made by the board of supervisors before the assessment rolls were acted upon or received by the State Tax Commission.

This case is entirely unlike Madison County v. Frazier, 78 Miss. 880. The material distinction between the Madison county case and the one at bar is that the order made in this case, denying the Lumber Company relief from the raises made by the board of supervisors in its assessments and the order generally approving the rolls, were made at the same term, while in the Madison county case, Frazier undertook to appeal from an informal order made at the August term which was in fieri and not enforcible until after an order made at the September term. We think that the judgment of the circuit court is erroneous and should be reversed.

James T. Crawley, for appellee.

It is a well-established and well-settled rule that an appeal will not lie from an interlocutory order unless there is a statute expressly conferring that right and that power. It is my contention that the appeal that was prosecuted by Moller-Vanderboom Lumber Company from an order of the board of supervisors increasing their assessment, was premature. The act that created the State Tax Commission brought into existence a body that now acts as a state equalizer of property in so far as the different classes of property are concerned in different counties, with reference to taxation of that property.

That being true, the acts of the board of supervisors of the various counties throughout Mississippi at the August term each year in ordering increases in the various classes of property or increases in each individual assessment are not final. When the rolls are sent to the State Tax Commission for approval, or for inspection, and correction ordered, as provided for by section 8 of chapter 323, Laws of 1920, and section 9 thereof, respectively, they are immediately sent back to the board of supervisors of the county, and the board then, pursuant to the order of the State Tax Commission, proceeds to make the change as directed. This is an order that the board of supervisors are compelled to obey without discretion, or without any judicial authority on their part to refuse to make the change so directed. It may therefore be readily seen that the act of the board of supervisors in fixing Moller-Vanderboom Lumber Company's assessment and raising it at the July meeting, and hearing the complaint at the August meeting, 1923, and ratifying the raise as made by the board is nothing more than a preliminary order, subject to review by the State Tax Commission. The State Tax Commission may change the order of the board of supervisors on such class of property and order the same raised or lowered. In either event, the purpose of the act would be destroyed and killed, were an appeal allowed before the order of the board of supervisors was approved by the State Tax Commission.

Suppose the courts hold that an appeal will lie from the initial order of the board of supervisors. If the appeal will lie to the circuit court, and the case is tried at the following term of court, and the court passes on the evidence offered in the trial and allows it to go to the jury, and the jury returns a verdict fixing the assessment of the firm in question, then there has been a judicial determination of the assessment in question. However, if the appeal is allowed from the initial order of the board of supervisors, this condition presents itself. Either this amount of assessment so determined is final, or it is not final. If it is final then it cannot be reviewed by the State Tax Commission, and the State Tax Commission therefore fails to perform the duties placed upon it by the statute. Now--if the decision is not final, then the decision of a circuit court is subject to review by the State Tax Commission. In other words, although the circuit court has said that this assessment as determined by it is the correct assessment, and that it is final until reversed by the supreme court of Mississippi for a new trial on its merits, or as to the valuation of the property, yet this decision of our courts is to be passed upon by the State Tax Commission, and the State Tax Commission will by an order of its own, change the assessment of the property as fixed by the circuit court, to suit itself. If the contention of the appellant is true, then that brings us face to face with this very question, and we must take one horn or the other of the dilemma that faces us.

It is our contention that section 6 of chapter 323, Laws of 1920 provides that the objection must be made at the August meeting, and presented in writing at that time, or no appeal will be permitted. That is to say, unless the objection is made in due form as prescribed by law, then at the final approval of the rolls of the county, the taxpayer will be estopped from...