Whittle v. City of Hattiesburg

• Decision Date: 25 June 1923
• Docket Number: 23457
• Citation: 96 So. 741,132 Miss. 808
• Court: Mississippi Supreme Court
• Parties: WHITTLE v. CITY OF HATTIESBURG

96 So. 741

132 Miss. 808

WHITTLE v. CITY OF HATTIESBURG

No. 23457

Supreme Court of Mississippi

June 25, 1923

Division A

(Division A.) January 1, 1920

MUNICIPAL CORPORATIONS. Burden of proof on municipality on appeal from board of equalization increasing taxpayer's assessments above that returned by assessor.

Under section 81, Code ^^ 1906 Hemingway's Code, section 61) giving a taxpayer aggrieved by a decision of the municipal authorities affecting the assessment of his property for taxes an appeal to the circuit court and providing that there the cause shall be tried anew, an appeal from a judgment of the mayor and board of commissioners of a municipality acting as a board of equalization increasing a taxpayer's assessment above that returned by the assessor, the burden of proof is on the municipality and not on the appellant; the return of the assessor is prima facie correct, and not the judgment of the equalization board.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forest county, HON. R. S. HALL, Judge.

Proceedings by the mayor and board of commissioners of the city of Hattiesburg, acting as a board of equalization increasing the assessment of property as made by assessor. From the order of such board, Mrs. D. M. Whittle appealed to the circuit court where the order was affirmed, and from such order she again appeals. Reversed and remanded.

Reversed and remanded.

Robert L. Bullard, for appellant.

The act authorizing the appeal contains this provision, an application of which will determine the propriety of the action of the lower court: "The controversy shall be tried anew in the circuit court at the first term." When the "controversy" came up in the circuit court both sides contended that the burden, or affirmative of it, rested upon the other fellow. The appellant contended that the taxpayer's return and the assessment made thereon by the assessor, stands, prima facie, until overcome by proof; the correctness of that being the very "controversy" to be tried anew in the circuit court; that unless evidence was produced to impeach that valuation it was the duty of the court to enter a judgment in favor of appellant. The court held with the city that the judgment appealed from by which the assessment was raised stood prima facie correct until overcome by proof impeaching it, and this is the question in the case.

Where, upon appeal, the whole controversy is tried anew (de novo) the court to which the controversy goes, does not exercise any of the functions of an appellate court. It is merely a removal of the proceeding into another court to be there tried as a new proposition, without reference to anything that occurred in the court from which it was removed. The judgment of the inferior court from which the appeal was taken has no force whatever in the appellate court. 3 Cyc. 260, 265. These propositions are decisive of this case: The original assessment made upon the assessment roll by the assessor, the officer charged by law with the duty of making it, stands as correct until it is impeached by the taxing authority or by the taxpayer.

If the original assessment is made by the assessor from and according to a return filed with him by the property owner the property owner is bound by it and cannot appeal from the assessment; otherwise, if the valuation is raised by the equalizing authority, he may appeal. 37 Cyc. 994. If there has been no raise in value and if the assessment stands as made by the assessor, the burden is on the party who appeals to impeach the assessment; but if the board of equalization has increased the valuation this presumption is thereby destroyed and the burden is on the state or municipality to show the correct valuation of the property independently of any action taken by them in raising it.

There are a few cases where an assessment was appealed from after having been raised by an equalizing authority, under statutes providing for a trial of the controversy anew, and in each case it was held that no presumption of correctness attached to the assessment as changed, and that the burden was on the state or municipality. Stahner v. State, 125 A. 72, 27 So. 311; Sullivan v. State, 110 Ala. 95, 20 So. 452.

Upon the evidence here introduced by the appellant both sides rested. Both requested a peremptory instruction. This is generally held to amount to an agreement by both sides that there is no question of fact to try and a joint demand for decision by the court according to the legal effect of the evidence before it. Such is the invariable rule in the Federal courts where the question has been decided. If, therefore, such is the rule in this court, the appellant is undoubtedly entitled to the judgment. Holbrook v. Shepard, 279 F. 193. It is a perfectly just and very convenient rule, and I have not found that any court has refused to apply it when it was invoked. An adoption of it here might prevent much experimentation with trial courts, but it would improve the practice very materially.

D. E. & C. W. Sullivan, for appellee.

According to chapter 118, Laws of 1914, beginning at page 97, municipal assessments shall be made by the clerk or tax collector by copying from the county assessment rolls that portion thereof which embraces property or persons within the corporate limits, but the municipal authorities may provide for a separate assessment to be made annually of all taxable property, except such as is required by law to be assessed by the railroad assessments.

Section 3422 of the Code of 1906 (section 5981, Hemingway's Code) provides that the mayor and board of commissioners may at regular or special meeting to be held in September or October n each year increase or diminish the valuation of property as assessed for taxation, and requires notice to be given of the meeting at which such changes are to be made. This section further provides that any person aggrieved by the action of the mayor and aldermen may appeal therefrom to the circuit court, as in other cases of appeal, and the same shall be tried de novo in the circuit court. Adams, State Revenue Agent, v. Lamb-Fish Lumber Co., 104 Miss. 48. It appears from the statute and the decision of the supreme court that a municipal assessment is not made and completed until acted upon by the board of mayor and aldermen at its meeting held in September or October and when so acted upon and approved, becomes final and stands as a judgment against the taxpayers. It is this judgment from which the taxpayer is given the right of appeal to the circuit court.

In this state of the record it will be presumed that the mayor and commissioners of the city of Hattiesburg did their duty in approving this assessment and that the judgment they rendered against the appellant was valid and binding upon her until she introduced proof to show the contrary. Robertson, State Revenue Agent, v. United States Nursery Co., 121 Miss. 14, 12 Ency. of Evidence 271; 37 Cyc. page 1118, par. F; Telephone Co. v. Board of State Affairs, 89 So. 249 (La.); Railroad Co. v. State, 69 So. 542; Union Coal Co. v. Thurston County (Wash.), 2 L. R. A., 1546.

Counsel for appellant cites and relies upon the case of Sullivan v. State, 20 So. 452, decided by the supreme court of Alabama. In order to properly understand this case it is necessary to examine the facts on which the decision is based, and also the laws of Alabama for making assessments. Under Alabama's method of procedure the Alabama supreme court holds that the return made by the tax assessor makes a prima-facie case and the burden of proof is on the taxpayer to overturn it. However this may be, as to the assessment in Alabama, there is no...