State Tax Commission v. Bailey & Howard

• Decision Date: 19 December 1912
• Citation: 60 So. 913,179 Ala. 620
• Parties: STATE TAX COMMISSION ET AL. v. BAILEY & HOWARD.
• Court: Alabama Supreme Court

60 So. 913

179 Ala. 620

STATE TAX COMMISSION ET AL. v. BAILEY & HOWARD.

Supreme Court of Alabama

December 19, 1912

On Rehearing, February 6, 1913.

On Rehearing.

Appeal from Circuit Court, Jefferson County; E. C. Crowe, Judge.

Petition for mandamus, filed by Bailey & Howard as trustees, against the Alabama State Tax Commission, and the individual members thereof, to prohibit them from increasing taxes. From a judgment granting the writ, the Commission appeals. Reversed and rendered, dismissing the petition.

The facts set forth in the petition thereof that petitioners were owners of certain property in Jefferson county, Ala., therein described; that they assessed it for taxes at a valuation satisfactory to the tax assessor of said county, but that the back tax commissioner for said county was not satisfied with said assessment, and filed the proper papers with the board of revenue, of which petitioners had legal notice, and that the board of revenue after rehearing on the merits raised the assessment, and fixed it at a valuation of $9,600. That after the board of revenue had adjourned, and after a time when the board of revenue had authority to reopen and rehear said cause, the State Tax Commission of Alabama came to Birmingham, and without notice to petition, and without convening the board of revenue, entered an order setting aside and annulling the assessment fixed by the board of revenue, and raised and assessed said property at a valuation of $15,500, and issued notice to the petitioner to appear at a subsequent time to show cause why, if any he could, the assessment as fixed by the State Tax Commission should not remain as the proper sum for assessment of said property for the coming tax year. It is alleged that no authority rested in the Commissioners to do this, and that no notice was given petitioner of their purpose or intention to so act. It is then alleged that the action of the board of revenue was final, and that it was not within the power of the Commission to annul and set aside such action, as no such power then rested in the board of revenue itself. The demurrers take the point discussed and decided in the opinion. The court granted the writ, and entered an order restraining the Tax Commission, from which order this appeal is taken.

J. F Stallings and Frank S. White, Jr., both of Birmingham, for appellant.

R. B Smyer and A. G. & E. D. Smith, all of Birmingham, for appellees.

ANDERSON J.

The Legislature has the inherent right to provide for the levy and assessment of taxes so long as acting within the limits of the Constitution, and in pursuance of this authority has created a State Tax Commission, with general supervisory powers over all subordinate officers charged with the assessment of taxes and the valuation of property. These powers are set forth in section 2223 of the Code of 1907. Subdivision 13 of said section authorizes the State Tax Commissioners to "set aside and hold for naught any valuation or assessment of property made by any county officer within this state or by any board of revenue or court of county commissioners, or by any other officers authorized to make assessments, and to reassess or revalue said property whether the original valuation or assessment be made by the property owner or by an officer of the state or of any county board of revenue or court of county commissioners of the several counties in this state, unless the valuation or assessment shall have been previously, in the same tax year, confirmed or determined by a court of record on appeal." The State Tax Commission has no right to disturb a valuation fixed during the same tax year by a court of record, upon appeal but this does not, of course, apply to a valuation fixed by the commissioners' court, as the valuation by said court is not upon appeal. Therefore the right of the State Tax Commission to revise assessments is not limited as to assessments fixed by officers, boards, or courts, except upon appeal in the circuit court or court of like jurisdiction, and the only limitation of their right was contained in section 2232 of the Code of 1907, amended by subdivision 36d, Acts 1911, p. 188, and which says: "When any assessment has been made or valuation fixed by the State Tax Commission or by a county tax commissioner or by the judgment of any court of record, the property so assessed, shall not be assessed at any greater or less valuation or for any greater or less amount for the next succeeding year, unless there shall be a change in the condition of improvements on said property, in which event the assessment may be increased or reduced to the extent only of the increase or reduction of the value of the improvements." This restriction does not prevent the State Tax Commission from raising the tax during the current year as assessed for said year, unless the valuation had been fixed by the state or county tax commission, or by a judgment of a court of record for the next preceding year. Subdivision 13 of section 2223, among other things, authorizes the State Tax Commission "to set aside and hold for naught any valuation or assessment of property made by any county officer within this state or by any board of revenue or court of county commissioners, or by any other officers authorized to make assessments."

It must be noted that the State Tax Commission have the authority to set aside a final assessment made by the commissioners' court, and in doing this there is no invasion by one department of the state of the province of another, as prohibited by section 43 of the Constitution. If the act of the board of revenue or commissioners' court in fixing the valuation is a judicial act, then the act of the state board in vacating same and reassessing the property is also a judicial act. On the other hand, if we concede the appellee's contention that the action of the state board is not judicial, but is a ministerial act of legislative or executive character, the concession would put the petitioner (the appellee here) out of court. "Prohibition is to restrain judicial, and not ministerial, acts, though performed by judges." Goodwin v. State, 145 Ala. 536, 40 So. 122. We think, however, that the action of both boards is judicial in character, and that the Legislature is not prohibited by section 43 of the Constitution from authorizing one to revise, review, or annul the action of the other, and this authority is given the State Tax Commission with reference to all other subordinate boards or officers charged with the duty of assessing taxes and valuing property. "The State Board of Equalization, in exercising the functions conferred upon it by law, is exercising judicial functions." Orr v. State, 3 Idaho (Hasb.) 190, 28 P. 416.

The state has no right of appeal from the judgment of the commissioners' court, as section 2252 of the Code of 1907 was held to have been repealed by the act of 1911 (Laws 1911 pp. 159-191) in so far as the state was given the right of appeal. State v. Ide Cotton Mills, 57 So. 481. This right was doubtless taken from the state by said act for the...