State v. Taylor

• Decision Date: 20 June 1907
• Citation: 104 S.W. 242,119 Tenn. 229
• Parties: STATE EX REL. BOND, REVENUE AGENT, v. TAYLOR, COUNTY TRUSTEE.
• Court: Tennessee Supreme Court

104 S.W. 242

119 Tenn. 229

STATE EX REL. BOND, REVENUE AGENT, v. TAYLOR, COUNTY TRUSTEE.

Supreme Court of Tennessee.

June 20, 1907

On Rehearing, September 7, 1907.

Mandamus by the state, on relation of Bate Bond, revenue agent against Thomas J. Taylor, as trustee of Shelby county. Writ denied.

Attorney General Cates and Carroll & McKellar, for appellant.

James C. Bradford and E. E. Wright, for appellee.

NEIL J.

The bill in this case was filed in the chancery court of Shelby county to obtain a mandamus against the county trustee of Shelby county, in respect of an application made by relator before the latter, concerning a reassessment, or back assessment, of the property of the Memphis Street Railway Company. The chancellor awarded an alternative writ, which was served upon the defendant. The latter, instead of making a return to the writ directly, demurred to the bill, and this was treated in the court below as properly raising the questions presented in the case, and will be accordingly so treated here, without passing upon the propriety of the practice adopted. The chancellor sustained the demurrer and dismissed the bill, and from this decree the complainant has appealed to this court, and has here assigned errors.

Before stating the substance of the bill and demurrer, we shall set out the sections of the statute that control the controversy viz.: Section 31 and section 38, subsec. 11, chapter 258, pp 660, 674, of the Acts of 1903:

"Sec. 31. That any property or properties included in this act shall be back, or re-assessed for the period now provided by law, viz.:

(1) When the same have been omitted from or escaped taxation.

(2) When the same has been willfully or knowingly, or by the negligence of the tax assessor, or board of equalizers, assessed or computed at a value less than its actual cash value.

(3) When the same has been assessed by the assessor or computed by the board of equalizers at less than its actual cash value by reason of any fraud, deception, misrepresentation or misstatement of the owner of the property or his agent or attorney.

(4) When the owner of the property connives at or fraudulently procures, or induces an assessment to be made by the assessor, or computed by the board of equalizers at less than its actual cash value.

(5) When the owner, or his agent, fails, refuses, or neglects to list the property to the assessor, as required by law.

(6) Whenever it is within his knowledge or he has reason to suspect in his county that any property has, in violation of this act, as above prescribed been assessed by any assessor, or computed by any board of equalizers at less than its actual cash value, it shall become the duty of any revenue agent, or any district attorney, or any attorney of the county, of the judge or chairman of the county court, of the county court clerk, of any circuit, chancery, and criminal court clerk, of any sheriff, and of any citizen of the county, to cause or have the county court clerk, in the case of merchants' taxes, and the county trustee, in case of other taxes covered by this act, to have issued the citation hereinafter set out, for the purpose of back or re-assessing such property. At the request of or upon the information or motion of any citizen or tax payer of the state, or of any of the officers above named, it shall be the duty of the county court clerk, in the case of merchants' taxes, and the county trustee, in the case of other taxes covered by this act, to issue, for the purpose of back or re-assessing property, the citation hereafter set out. The county court clerk, in the case of merchants' taxes, and the county trustee, in the case of other taxes covered by this act, upon the motion or information, or at the request of any citizen or tax payer of the state, or of any of the officials before designated, or when the same is within the knowledge of, or suspected by the county court clerk, or county trustee, shall issue as to any property assessed or valued in violation of this act, at less than the actual cash value of the same, a citation to be served by any officer of the county or of any district thereof, upon the owner of the property, or his agent, or representative, or attorney, summoning him to appear before such clerk or county trustee, at his office giving not less than five days' notice from the date of the issuance of the citation and show cause, if any, why said property should not be back or re-assessed at its actual cash value. The form of citation shall be substantially as follows, viz:

State of Tennessee, _______ County.

To _______, at _______, Tenn.:

Proper motion having been made before me by _______, state revenue agent for the state of Tennessee under section _______, chapter _______, of the Acts of Tennessee, 190--. You are hereby cited to appear before me, _______, trustee or county court clerk for _______ county, Tennessee, on the _______ day of _______, 190--, at _______ o'clock _______ M., for the purpose of being assessed or reassessed for the years _______ upon omitted or inadequately assessed property in the said county and state, and show cause, if any, why said property should not be back or re-assessed at its actual cash value.

_____________

Trustee or county court clerk,

_______ county, Tenn.

Issued at office this _______ day of _______, 190-.

The officials herein named as having power to back or re-assess property, are vested with full authority to administer oaths, send for and examine witnesses, and take such steps as may be deemed necessary or material to obtain information and evidence as to the value of the property. Said witnesses, when properly summoned, shall be amenable to existing laws for nonattendance or failure to give evidence which is in their knowledge.

Said officials herein vested with the power to back or re-assess property shall have full authority, in proceedings, to back or re-assess such property, to make proper, correct, and adequate assessments of the same at its actual cash value, which, when entered upon the tax books or filed in writing with the authorized tax-collecting authority, shall become a final and valid assessment of the property, and collectible as such, as fully and amply as if originally entered upon the assessment rolls. Should it appear that any property has been assessed at less than its actual cash value, in violation or in disregard of the provisions of this act, the official back or re-assessing the same, shall add to the assessment a penalty of fifteen per centum upon the amount of the added tax, and the cost of the proceeding, which said penalty and cost shall become a part of the taxes and collectible as such. If the proceeding is determined in favor of the owner of the property, the cost shall be paid by the county.

It shall be the duty of the clerks of the county courts to examine and compare the assessment rolls of the county with the inventories or reports of administrators and executors as soon as filed with the county court clerk, for the purpose of ascertaining whether any personal property of any estate is subject under this act to back or re-assessment. In case such examination shall show any personalty subject to such back or reassessment, the clerk of the county court shall report the same to the county trustee, who shall back or re-assess the same, under the provisions of this act, and add thereto the penalty heretofore designated.

In case the county court clerk or county trustee shall fail or refuse to perform the duty herein imposed, such clerk or trustee shall become liable, on his official bond for the amount of taxes which might have been recovered had said duty been properly performed, together with a penalty of fifteen per cent. added thereto, said liability and penalty to be recovered in any court of record, or before any justice of the peace at the instance of any district attorney or revenue agent of the state, or by suit, or by motion or five days' notice in the chancery or circuit courts, or before any justice of the county."

"Sec. 38. That the Secretary of State, Treasurer, and Comptroller of the treasury of the state, and their successors in office, are hereby created a state board of equalization and invested with the powers and required to perform the duties hereinafter prescribed, viz.: * * *

(11) Said board of equalization shall also hear appeals upon matters of back or re-assessments made by revenue agents or other officers of the state from county trustees or county court clerks. The right of appeal from the decision of said trustees or county court clerks in the matter of back or re-assessments is hereby given to the state and county or party assessed or re-assessed; provided, said appeal is prosecuted within ten days from the date of such back or re-assessment or attempt to back or re-assess, and the said trustee or county court clerk shall, upon such appeal being perfected, certify his action to the state board of equalization, whose duty it shall be to hear the matter in controversy within ten days from the filing with them, or either of them, the notice of appeal, provided, said board is then in session."

The bill alleges: That it came to the knowledge of relator "that, in violation of the provisions of the law, the property of the Memphis Street Railway Company was assessed at less than its actual cash value, and glaringly and inadequately assessed for taxation." That for "the years 1902, 1903, 1904, 1905 the Memphis Street Railway Company did not comply with the provisions of law in regard to returning its property for taxation." "That on the 25th day of May, 1904, the Memphis Street Railway Company, by its vice president, filed a schedule purporting to comply with the law, and therein set...