Yusten v. Morrison

• Citation: 78 S.D. 426,103 N.W.2d 653
• Decision Date: 14 June 1960
• Docket Number: No. 9822-,9822-
• Parties: Howard YUSTEN, Plaintiff and Appellant, v. Catherine MORRISON, as County Treasurer of Clay County, South Dakota, Defendant and Respondent. a.
• Court: Supreme Court of South Dakota

Page 653

103 N.W.2d 653

78 S.D. 426

Howard YUSTEN, Plaintiff and Appellant, v. Catherine MORRISON, as County Treasurer of Clay County, South Dakota, Defendant and Respondent.

No. 9822-a.

Supreme Court of South Dakota.

June 14, 1960.

Rehearing Denied Aug. 18, 1960.

Bogue & Weeks, Vermillion, for plaintiff and appellant.

Robert T. Antony, State's Atty., Vermillion, for defendant and respondent.

ROBERTS, Presiding Judge.

Plaintiff appeals from a judgment for the defendant in an action which was commenced to obtain a refund of an alleged illegal portion of taxes levied on two lots and the improvements thereon in the city of Vermillion and which taxes had been paid under protest to the defendant county treasurer.

The complaint alleges in substance that the assessment as outlined therein was in excess of sixty per cent of the actual value of plaintiff's property and therefore violative of the constitution and the statutes of this state to the extent of the excess. The trial court found that a taxable value of $30,985 was placed on the property which is sixty per cent of $51,640 assessed as its true and full value in money; that the actual value of the property did not exceed $26,000; and that plaintiff did not make complaint to either the city or county board of equalization. The court concluded that plaintiff not having exhausted his remedy before the proper administrative board having the initial power to correct errors in assessment was in the present action precluded from attacking the assessment.

Sec. 2, art. 11, of the Constitution of this State provides that 'the valuation of property for taxation purposes shall never exceed the actual value thereof'.

SDC 57.0334 as amended by Chap. 459, Laws 1957, provides: 'All property shall be assessed at its true and full value in money but only sixty per cent of such assessed value shall be taken and considered as the taxable value of such property upon which the levy shall be made and applied and the taxes computed.'

The legislature has provided an administrative procedure to be followed by a taxpayer for relief in case of an excessive or improper assessment. There is a local board of equalization for each township, town, city, or other assessment district and such boards are charged with the duty of correcting the assessments 'so that each tract or lot of real property * * * shall be entered on the assessment roll at the true value thereof, * * * All complaints and grievances of individuals, residents of the township, town or city taxing district, in reference to the assessment of property shall be heard and decided by the board.' SDC Supp. 57.0401, as amended by Chap 459, Laws 1953. The county commissioners, or a majority of them, with the county auditor constitute a board for the equalization of the assessment of property. SDC 57.0405. An appeal may be taken by any person aggrieved from the decision of a local board of equalization to the county board. SDC 57.0404. An appeal under the provisions of SDC 57.0411, as amended by Chap. 461, Laws 1957, may be taken from the decision of the county board of equalization to the circuit court 'within the same time and in the same manner and upon the same conditions and terms as other appeals may be taken from decisions of a board of county commissioners.'

In Holbrook v. Gallagher, 56 S.D. 54, 227 N.W. 461, it is held that before a taxpayer may apply for judicial relief from an alleged error in valuation he must exhaust his remedies before the boards of equalization empowered to correct the error. Cited for this holding, among other decisions, are Bagley Elevator Co. v. Butler, 24 S.D. 429, 123 N.W. 866; Sioux Falls Savings Bank v. Minnehaha County, 29 S.D. 146, 135 N.W. 689; Beadle County v. Eveland, 43 S.D. 447, 180 N.W. 65. This is accepted as a settled principle by text writers. Cooley Taxation, 4th Ed., Sec. 1201, states the rule thus: 'In other words if a remedy for an excessive or improper assessment of an individual, by proceedings before an officer or board, is provided for by statute, a taxpayer cannot resort to the courts in the first instance, and if he neglects to duly avail himself...