Thomas Forman Co. v. Owsley County Bd. of Sup'rs

• Decision Date: 12 February 1937
• Citation: 101 S.W.2d 939,267 Ky. 224
• Parties: THOMAS FORMAN CO. v. OWSLEY COUNTY BOARD OF SUP'RS. CHESBROUGH et al. v. SAME.
• Court: Kentucky Court of Appeals

101 S.W.2d 939

267 Ky. 224

THOMAS FORMAN CO. v. OWSLEY COUNTY BOARD OF SUP'RS.

CHESBROUGH et al. v. SAME.

Court of Appeals of Kentucky

February 12, 1937

Appeal from Circuit Court, Owsley County.

Proceedings by the Thomas Forman Company, and by William J. Chesbrough and others, against the Owsley County Board of Supervisors regarding the assessment of the lands of petitioners. From adverse judgments on appeal from the quarterly court, which heard the proceedings on appeal from the final assessment of the board, petitioners appeal on one record under an order of consolidation entered in the lower court.

Affirmed as to petitioners Chesbrough and others; reversed with directions as to petitioner Forman Company.

Beatty & Beatty and Rose & Stamper, all of Beattyville, for appellants.

Charles L. Seales, of Booneville, for appellee.

MORRIS Commissioner.

Appellant in each of the above appeals is the owner of tracts of timbered land in Owsley county, and matters presented involve the assessments of the lands for 1936 taxation. Each owner upon final assessment, appealed from the alleged action of appellee to the quarterly court, thence to the circuit court and finally to this court.

It is alleged that the Forman Company filed its assessment list as of July 1, 1935, with the tax commissioner of Owsley county listing 9,854 acres of land, at a total valuation of $123,000. Later the county commissioner, claiming authority to do so under section 4053, Ky.St., raised the value to $161,000. It is charged that such increased valuation was made without notice to the appellant. It is not pleaded, but appears that the commissioner returned appellants' list to the board of supervisors for its action. Appellant says that on February 29, 1936, it was notified to appear before the board to show cause why its lands should not be raised by an amount of $9,000 "in addition to the raise made" by the commissioner, which would have increased the value to $170,000. It appeared by attorney and objected to the proposed raise, insisting that the board should assess at the amount fixed in its return, namely, $123,000. The board overruled its objections, and while it did not put on the proposed raise of $9,000, it did raise the commissioner's figures by $4,000, thus making the final assessment $165,000.

It is asserted that the increase in values made by the tax commissioner is void, because (1) the same was made without notice as required by section 4053, Ky. Stats., and (2) because the board heard no evidence as to the fair value as provided by section 4120, Ky.Statutes, and that it was assessed at a value greater than its fair value and not uniform with other lands of like quality and kind.

In the Chesbrough case the land was owned by the heirs of Frank Chesbrough, this tract containing 944 acres adjacent to the Forman lands. From the pleading we gather that the owners did not list, nor attempt to list this tract for assessment in 1935. The commissioner listed it at $22,000. It is then alleged that the board, "in supervising and equalizing the taxable property" for the year 1936, assessed the tract at the same amount, which they say is excessive unfair, and not uniform. The Chesbroughs then allege in about the same language used in the Forman petition, the inaccessibility of the timber to a market, its deterioration, and likewise compare the assessed values of other timber lands in the same county, at an average, as they both say, not exceeding $7 per acre, thereby showing lack of uniformity as required by the Constitution.

The board answered each petition. In the Forman case they denied that their valuation of the land was unfair, excessive, or exorbitant; alleged that the tax commissioner of Owsley county did not receive any assessment from the plaintiff until long after "he had taken the assessment from the list of previous years," and that the value fixed for 1936 was the same as fixed by plaintiff for preceding years. They then generally allege that the plaintiff's lands are "well timbered and of greater value than adjacent lands." To the Chesbrough petition the denial was in substance the same as in the Forman case, but it is alleged that appellants received notice of the action of the board and made no complaint. We need not observe the pleadings any too closely, since it will appear later that the only question here is: Were the tracts of land given a higher value than a fair cash value?

In the quarterly court the two cases were heard properly without the intervention of a jury, the court upholding the board's action in assessing the Forman property at $165,000, and took no action on the assessment of the Chesbrough tract. When the appeal came on to the circuit court, the issues being formed (without objection) by the pleadings above mentioned, the court impaneled a jury which, after hearing the proof, returned a verdict fixing the value of the Forman land at $162,000, a reduction of $3,000 from the board's assessment, and in the Chesbrough case a verdict for $20,000, a reduction of $2,000 from the commissioner's and quarterly court's values. On these two verdicts the court entered judgments, and both parties have appealed on one record under an order of consolidation entered in the lower court.

Disposing first of the contention of appellant Forman Company, that the court should have held the entire proceeding void because of its alleged failure to receive notice from the commissioner of the raise placed by that officer on its assessment, we find no merit in the contention.

The section directing notice, relied upon by appellant, provides: "If the value fixed by the assessor be greater than that fixed by the taxpayer it shall be the duty of the assessor to notify the taxpayer at the time of the assessment the amount of such increase and of the time and place of the meeting of the board of supervisors. The assessor shall report to the board of supervisors a list of all taxpayers in the county whose tax lists have been added to or increased by him after receiving them from the hands of the taxpayer, together with a short statement." Ky.St. § 4053.

As said, it does appear that the action of the commissioner was without notice, but by appellant's petition it develops that it did receive notice of the raise proposed by the board by which it was apprised of the proposed raise, and it is alleged that appellant appeared before the board "and made objections to the said Board to the raise placed on plaintiff's property by the Commissioner in excess of $123,000 and asked said Board to take off said excess over and above $123,000, as listed by plaintiff, which the Board declined and refused to do." Plaintiff also objected to any additional raise of its property.

Since it is apparent that the provision as to notice in section 4053, Ky.St., is to give the aggrieved taxpayer opportunity to appear before the board, and since this taxpayer did appear and urged the reduction of the excess placed on the property by the commissioner, as well as contending against any further raise, the taxpayer has not been prejudiced by the alleged failure of the commissioner to perform a duty placed upon him. All its rights and remedies under the law were preserved, and since it has taken advantage of same, we cannot see that the alleged failure of notice has worked prejudice to any right vouchsafed the taxpayer. Ball, Sheriff, v. P. V. & K. Coal Company, 235 Ky. 445, 31 S.W.2d 707.

In Burnside Supply Co. v. Burnside Graded Common School, 260 Ky. 482, 86 S.W.2d 160, 162, we held lack of notice from the board of supervisors of a raised valuation was fatal, and the raise void...