Tomlinson v. Board of Equalization

• Decision Date: 12 October 1889
• Parties: TOMLINSON v. BOARD OF EQUALIZATION.
• Court: Tennessee Supreme Court

12 S.W. 414

88 Tenn. 1

TOMLINSON v. BOARD OF EQUALIZATION.

Supreme Court of Tennessee.

October 12, 1889

Appeal from circuit court, Grainger county; W. R. HICKS, Judge.

Shields & Shields, for plaintiff.

Tate & Pickle, for defendant.

LURTON J.

The petitioner applied for and obtained writs of certiorari and supersedeas. Upon motion, at the following term of the circuit court, the petition was dismissed. His complaint is that the tax assessor of Grainger county has placed an excessive tax upon three parcels of land owned by him. He alleges that he made complaint before the board of equalization that his assessment was excessive, and produced and sought for permission to examine witnesses to support his complaint; that the board refused to allow him to examine these witnesses, or to grant him a subpoena for others that he proposed to bring before them; and that they adopted and approved the valuation fixed by the assessor. The petition shows the ground upon which the board refused to hear his witnesses, in that it states that they ruled that "a complaining tax-payer had no right, under the law, in such cases to introduce evidence as to the value of his property claimed to be excessively assessed, or the board any authority to hear and consider any evidence upon the subject unless, in the judgment of the board, justice demands that it should have evidence, and then only such as the board might see fit to call itself, in its discretion." Petitioner then alleges that he preferred a bill of exceptions, which the board refused to sign, and prayed an appeal to the circuit court, which was refused.

What relief can petitioner obtain under a writ of certiorari upon these facts? The duties and powers of the board of equalization are defined in section 42 of the Assessment Act, passed March 25, 1887. It is as follows "That said board of equalization shall carefully examine and compare and equalize said assessments, and shall eliminate from the lists thereof all property exempt under this act and they are hereby empowered to hear and adjust complaints from any party feeling aggrieved on account of excessive assessments, when, in their judgment, justice demands it, and to correct any and all errors arising from clerical mistakes, or otherwise; and the corrections made, if any, shall be entered upon the assessment book without in any way altering the assessment lists; and the action of this board as to valuation shall be final, and all complaints in this regard are hereby required to be made and acted upon by this board, during its session, which shall be from the first Monday to the third Monday in June. If complaint made is based on excessive values, said board shall have the right to summon before them witnesses, who shall be disinterested freeholders, and the sworn testimony of three such witnesses concerning same will be sufficient evidence upon which such board may act." The italics are ours. It may be directly seen from the plain words of the act that the legislative intention was that there should be no appeal or review of the action of this board upon the subject of valuations, where it has acted upon a complaint. The law-maker has in so many words declared that its action in this regard "shall be final." When no right of appeal is given by the statute in express words, or by necessary implication, an appeal will not lie; and it was, therefore, not error in the board to refuse the appeal prayed for. Wade v. Murry, 2 Sneed, 50; Ex parte Knight, 3 Lea, 401. But it is insisted that when no appeal lies the writ of certiorari may be used in lieu of, or as a substitute for, an appeal. Article 6, § 10, of the state constitution provides that "the judges or justices of inferior courts of law and equity shall have power in civil cases to issue writs of certiorari to remove any cause, or the transcript of the record thereof, from any inferior jurisdiction into such court of law, on sufficient cause, supported by oath or affirmation." What is "sufficient cause" must be defined by either statute or judicial decision. Judicial decision has established that where the law gives an appeal, and the party is deprived of it without any fault or negligence on his part, that is "sufficient cause," if he shows, in addition to it, a meritorious case. History of a Lawsuit, § 655, (Old Ed.) But in the case before us the law gave no appeal; hence, the writ will not lie in lieu of or as a substitute for an appeal. But will it lie under any of the statutory definitions of "sufficient cause?" Code, § 3123, is as follows: "The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions, has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy." By the succeeding section it is declared that the writ of certiorari lies in the following cases: "On suggestion of diminution; where no appeal is given; as a substitute for appeal; instead of audita querela, instead of writ of error." This is a case which learned counsel contend comes under the provision for the writ in the section last quoted, "where no appeal is given." It is too plain for argument that if the writ cannot lie under this provision it will not under any of the other cases named in the statute. These two sections must be construed together. The statutory ground is that the writ of certiorari will lie, upon sufficient cause shown, where no appeal is given; where an inferior tribunal, board, or officer exercising judicial functions, has exceeded the jurisdiction conferred, or is acting illegally; where, in the judgment of the court, there is no other plain, speedy, or acequate remedy. Does petitioner present such a case? Waiving for the present any consideration of the question as to whether a board of equalization, under our act of 1887, is a judicial tribunal, or whether, in regard to its action upon a complaint of an excessive assessment, it is a board "exercising judicial functions," we will first undertake to ascertain whether, if we assume it to have been in the exercise of judicial functions in the matter complained of, it has in any way exceeded its jurisdiction, or, in the language of the statute, was acting illegally.

The complaint made in the petition is that it refused to hear witnesses offered by complainant in support of his complaint as to an excessive assessment as to valuation. In this, did they "exceed their jurisdiction," or "act illegally?" To determine this, we must not only consider the language of the act defining their duties, but consider the general nature and scope of the powers conferred upon them. They are styled a "board of equalization." They are charged, primarily, with the duty of "examining" and "equalizing" assessments. This duty they are expected, most manifestly, to perform, not upon testimony, but upon a "comparing" the assessments in one district or neighborhood with another,--one piece of property with the assessment upon another of equal value. Clearly, this is to be done upon their own knowledge of the comparative valuations, and the end to be reached is an equalization whereby discriminations in favor of one, or against another, are to be corrected. In addition to this, they are to correct mistakes made by the assessor, and eliminate from the list property exempt under the law from assessment. Finally, they are empowered to hear and adjust complaints from any party feeling aggrieved on account of excessive taxation, where in their judgment justice demands it. How are they to "hear and adjust" such complaints? Petitioner's contention is that they must hear witnesses produced by him; that he has a right to examine such witnesses, and cross-examine such as are produced against him. In other words, that act contemplates a regular trial, according to the ordinary course of law, and the decision according to the weight of the proof. We have seen that, with reference to the primary duty of the board-- that of equalizing assessments--the act contemplates no issue of fact or hearing of evidence, but that the equalization is to be brought about by a comparison of assessments and the knowledge they have of the relative values of different pieces of property. Can the law contemplate any very different method of correcting an excessive assessment? The knowledge of relative values --of comparative values--which they have as citizens and freeholders, and which they obtain from an examination and comparison of the assessment lists, will, in the vast majority of cases, enable them to act justly upon the complaint. But cases may occur where these means are, in their judgment, unsatisfactory. In such case, the act declares that the "board shall have the right to summon before them witnesses, who shall be disinterested freeholders; and the sworn testimony of three such witnesses concerning same will be sufficient evidence upon which such board may act." The "board shall have the right" to summon before them disinterested freeholders, in the language of the act. Does this power conferred make it their duty to either have witnesses brought by the party making complaint, or require them in all cases to summon witnesses upon such complaint being made; or is the hearing of witnesses a matter wholly in their discretion? We think the statute means no more than it plainly discloses. To hold that it was the duty to permit the examination of witnesses offered by a complainant would imply a duty to the state and county to hear and examine witnesses to sustain the assessment. All this would imply a trial, and a judgment upon weight of proof. The question of valuation is altogether a matter of...