Paschal v. Munsey

• Decision Date: 23 February 1925
• Docket Number: 195
• Parties: PASCHAL v. MUNSEY
• Court: Arkansas Supreme Court

268 S.W. 849

168 Ark. 58

PASCHAL v. MUNSEY

No. 195

Supreme Court of Arkansas

February 23, 1925

Appeal from Perry Circuit Court; Marvin Harris, Judge; judgment modified.

Judgment affirmed.

J. E Brazil and W. H. Donham, for appellant.

Crawford & Moses' Digest, § 10180, has no application to this case. Appellees do not seek the refund on the ground that the doubling of the assessed values constituted an erroneous assessment, but solely on the grounds that tire action of the quorum court in making a levy of two and one-half mills for a "county redemption fund" was illegal and void. Such being the case, appellees should have objected to the levy as provided in C. & M. Digest § 9870, 9871. That levy was not erroneous within the meaning of § 10180 supra, 90 Ark. 413. Appellees can not recover the refund because the payments were voluntary. C. R. I. & P. Ry. Co. v. Brazil, ms. op. Nov. 24, 1924; 107 Ark. 24; 97 U.S. 181; 98 U.S. 541; 143 Ark. 435; 145 Ark. 185; 153 Ark. 337; 130 Ark. 520; 95 Ark. 501; 86 Ark. 165; 74 Ark. 270; 48 Ark. 70; 37 Cyc. 1178-79.

G. B. Colvin, for appellees.

The payment of the excess amount of taxes was the result of an erroneous assessment, within the meaning of C. & M. Digest § 10180. Bouvier's Law Dict. , "Erroneous." We agree that 90 Ark. 413 should largely control here. Certainly the quorum court exceeded its jurisdiction, and its act in doubling the assessment for the county tax was erroneous, and would have been erroneous even if done by the county assessor in the regular way. 162 Ark. 443. We confess error with respect to excess payment made by the receiver for Fourche River Valley and I. T. Ry. Co., since under the previous holding of the court in Railway v. Bazil, that payment was voluntary, but as to all other appellees the payments were involuntary, and they were entitled to have the excess refunded. 107 Ark. 24.

OPINION

SMITH, J.

Appellees, eighty-four in number, filed a joint petition in the county court of Perry County for the refund of taxes paid by them for the year 1922, and, upon the appeal from the judgment of the county court to the circuit court, the cause was heard on an agreed statement of facts, from which we copy the following essential recitals:

Con Grabel had recovered a judgment in the United States District Court for the Eastern District of Arkansas, Western Division, against Perry County, and, to secure its enforcement and payment, a mandamus had been issued to the assessing officers of that county, directing that an assessment for county purposes be made of 100 per cent. of the market value, instead of 50 per cent., as is customary. Such an assessment had been made for the taxes for the year 1921, and sufficient revenue had been raised to satisfy this judgment.

An assessment for 1922 taxes had been made on the customary basis of 50 per cent. of the market value of the property assessed, when the levying court, at its regular session for levying taxes at the October term, 1922, entered an order directing the county clerk to double this valuation for county purposes, and to extend the taxes on that basis.

Pursuant to this order, the county clerk, in making up the taxbooks, doubled the valuations made by the assessing officers for county purposes, and the collector proceeded to collect the taxes on that basis. No notice was given that the levying court intended to take this action, and it is stipulated that the taxes would not have been received by the collector on any other basis, and that, had the taxpayer "failed and refused to pay the tax caused and occasioned by said increased valuations, all of the property (of appellees) subject to said taxes would have been immediately seized and sold for said increased taxes and the other taxes against said property for the year 1922, as provided by law."

Petitioners made no objections to the levying of the tax by the levying court under §§ 9870, 9871 and 9672, C. & M. Digest, but brought this proceeding under § 10180, C. & M. Digest.

As a part of the agreed statement of facts, a schedule was attached showing the amount of tax paid by each petitioner for county purposes as a result of this order of the levying court.

It was further stipulated that the county treasurer had in his hands these funds.

The court below rendered a judgment awarding the relief prayed, and the county has appealed.

For the reversal of the judgment of the circuit court it is very earnestly insisted that § 10180, C. & M. Digest, under which petitioners proceeded, does not authorize the proceeding, for the reason that the assessment complained of is not an erroneous assessment within the meaning of that statute.

By this section it is provided that "in case any person has paid or may hereafter pay taxes on any property, real or personal, erroneously assessed, upon satisfactory proof being adduced to the county court of the fact the said court shall make an order refunding to such persons the amount of the county tax so erroneously assessed and paid, * * *." We think this proceeding is authorized by that section, and the taxes which petitioners seek to recover were paid under an "erroneous assessment" within the meaning of that section.

In the case of Clay County v. Brown Lumber Co., 90 Ark. 413, 119 S.W. 251, the taxpayer complained of an overvaluation, and proceeded under § 7180, Kirby's Digest (which is now § 10180, C. & M. Digest) for relief, but relief was denied upon the ground that this section of the statute was not intended to afford relief in such cases, for the reason that an excessive valuation was not an erroneous assessment within the meaning of that statute. The court defined what was meant by an erroneous assessment, and, in doing so, said: "It is urged by the appellee that an excessive valuation of property is an erroneous assessment thereof within the meaning of § 7180 of Kirby's Digest, so that a remedy is here given to one who has paid taxes under these circumstances, by having...