Arkansas Tax Commission v. Ashby

233 S.W.2d 361, 217 Ark. 759, 1950 Ark. LEXIS 501

• Court: Supreme Court of Arkansas
• Decided: October 23, 1950
• Docket: 4-9232
• Status: Published

Opinions

Holt, J.

January 23, 1950, appellees, citizens and taxpayers in Benton, Arkansas, on their own behalf and all others similarly situated, brought this action alleging: “That defendant, Ross McDonald, is the county clerk of Saline County, Arkansas, and as such it is his duty to prepare the tax books for the City of Benton and Saline County, for the taxes to be collected by the tax collector for the year 1949, which will be due and collectible this year.

“That defendants, W. R. Waters, Y. E. Morden and N. A. Martin, compose the Tax Equalization Board of Saline County, Arkansas, for the tax assessments to be equalized and assessed for the year 1950 to be due and collectible in the year 1951.

“That defendants, Saline County Equalization Board has been directed (by the Arkansas Tax Commission) to reconvene and be in session at the Courthouse;, Benton, Arkansas, from January 23 to January 31, (3950) inclusive, for the purpose of hearing protests and making adjustments in the assessed valuations as reassessed by the Board of Re-assessment for Saline County.

“That the re-assessment of real jjroperty made by said re-assessment board for Saline County, is made without any authority of law and without legal right to make such re-assessment, and that the time for making such assessment has expired, having heretofore been assessed and equalized by the County Equalization Board when in proper session for the year 1949 for the taxes which will be due and payable this year on such property in the City of Benton, Arkansas.

‘ ‘ That the said county equalization board is now without any legal authority to change any of said assessments as made by the former equalization board for the taxes for the year 1949 which will be due in the year 1950, and defendant county clerk has no legal right to enter any reassessment made br such board, and any re-assessment now made by such board or any other board is unlawful and without authority of law.

‘‘ That any such re-assessment would be taking property without due process of law and without proper notice.”

They prayed for injunctive relief against all defendants.

Appellant, Arkansas Tax Commission, in a petition to be made a necessary party (which the court granted) alleged : ‘ ‘ That the Arkansas Tax Commission is an agency of the Arkansas State Government, and as such has certain statutory duties and'powers.

‘ ‘ That said Arkansas Tax Commission, acting within its authorized power, ordered a- re-assessment of all real property in Saline County, said order being issued on October 31,1949.

“That the Arkansas Tax Commission, acting under authority of § 84-464 and Sub-Section (s) of § 84-103, Arkansas Statutes,' 1947, issued an order on January 20, 1950, to the Saline County Clerk and to the members of the Saline County Equalization Board to convene at the Saline County Courthouse at its regular place of meeting-in Saline County, Arkansas, on Monday, January 23, 1950, and continue in session from day to day to and including January 31, 1950, for the purpose of hearing appeals from the action of .the Re-assessing Board, and to make only such adjustments as are necessary to bring about an equalization of urban real property assessments on a basis of twenty (20%) per centum of the true and actual value.” In a separate answer, the Tax Commission denied every material allegation in appellees’ complaint.

Upon a hearing, based upon the pleadings and exhibits, the trial court granted the injunctive relief prayed without giving any specific reason.

This appeal followed.

Under Art. 7, § 28 of the Arkansas Constitution, County Courts were given exclusive, original jurisdiction in all matters relating to county taxes.

Art. 16, § 5, provides that “all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State,” and Art. 7, § 46 of the Constitution provides that the qualified electors of each county in the State shall elect one assessor “with such duties'as are now or may be prescribed by law.”

The Legislature, in order to bring about equitable assessments, constituted and provided Boards of Equalization to operate in the various counties (§ 84-701, Ark. Stats. 1947), and as a further aid in accomplishing equal assessments, our lawmakers enacted Act 129 of 1927, which created for a period of 32 years, a Commission to be known as the Arkansas Tax Commission. This act clothed the Tax Commission -with certain powers. Section 12, sub-section (a) provides: “To have and exercise general and complete supervision and control over the valuation, assessment and equalization of all property, privileges and franchises; the collection of taxes and enforcement of the tax laws of the State, and over the several county assessors, county boards of review and equalization, tax collectors and other officers charged with tlie assessment or equalization of property or the collection of taxes throughout the State, to the end that all assessments on property, privileges and franchises in this State shall he made in relative proportion to the just and true value thereof, in substantial compliance with law.

“ (p) To order in any year a re-assessment of all real and personal property or real or personal property, or any class of personal property in any county, or in any district or subdivision thereof, when in its judgment such re-assessment is advisable or necessary, and for that purpose to cause such re-assessment to be made by the local assessment officers, or, if in the judgment of the Commission the interest of the public will be advanced thereby, to cause such reassessment to be made by a person or persons to be recommended by the County Judge and appointed by the Commission for that purpose, and in either case to cause such re-assessment to be substituted for the original assessment. Any change in assessed value for State and County purposes shall not affect the assessment of benefits, made for any public improvement.

“(s) To require any county board of equalization, at any time after its adjournment, to reconvene and to make such orders as the Commission shall determine are just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township, district or city, and to raise or lower the valuation of the property of any person, company, or corporation; and to order and direct any county board of equalization to raise or lower the valuation of any class or classes of property; and generally to do and perform any act or to make any order or direction to any county board of equalization or any local assessor as to the valuation of any property or any class of property in any township, district, city or county which, in the judgment of the Commission, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and upon the same basis as any and all other taxable property, real or personal, wherever situated throughout the State. ’ ’

Section 29: “ * * * Any such re-assessment shall, when completed, be treated exactly as an original assessment and be subject to equalization by the county board and to such appeals from the action of any officer having to do with said assessment as are now provided by law in the case of original assessments. ’ ’

Section 8 of Act 191 of 1949 provides for the right of appeal from the Commission’s actions to the Circuit Court.

Section 31 of Act 129 of 1927 constituted the State Tax Commission a State Equalization Board and provided the yardstick to be used by the Board in the equalization of the assessment. We observe, therefore, that Act 129 gave to the State Tax Commission certain duties and powers as (1) a tax assessing body and (2) as a State Equalization Board.

As a tax commission, the Arkansas Tax Commission was given general and complete supervision and control over the valuation assessment and equalization of all property, privileges and franchises, the collection of taxes and enforcement of the tax laws of the State and supervision over the County Assessors. It was given original and exclusive power over the assessment of both real and personal property, all pipe lines, railroads and other utilities.

Act 12 of 1933 abolished the office of Arkansas Tax Commission and transferred all duties and powers to the Arkansas Corporation Commission. Thereafter, by Act 40 of 1945, all duties of the Arkansas 'Corporation Commission were transferred to the Public Service Commission and in 1949, by Act 191, the Legislature recreated the Arkansas Tax Commission, vesting in it all taxing-powers imposed upon the Arkansas Public Service Commission. In effect, therefore, the Arkansas Tax Commission of 1949 is the Arkansas Tax Commission as created by Act 129 of 1927.

On October 30,1949, the present Arkansas Tax Commission, appellant here, ordered a hearing for all property owners in Saline County to be held October 28th, and on October 31st thereafter, ordered a re-assessment of all real property in Saline County and appointed Assessors. December 20, 1949, the Tax Commission can-celled so much of its order which included rural property. January 20, 1950, after re-assessments were completed, the Commission ordered the Saline County Equalization Board to reconvene on January 21, 1950, to hear appeals and make adjustments on a basis of not less than twenty per cent of the true value of the assessed property. January 23, 1950, the present action was begun resulting, as indicated, in the granting of injunctive relief.

There are two primary questions presented: (1) Whether Acts 129 and 191 are valid, constitutional legislation. (2) Whether the mechanics pursued and acts performed by the Arkansas Tax Commission, in the instant case, were in accordance with the provisions of Act 129 as re-enacted by Act 191 (by reference) and within the time limit within which the Tax Commission was required to act.

-(1)-

As to the first question. We hold that Acts 129 and 191 are constitutional and valid legislative enactments.

This court in State v. Little, 94 Ark. 217, 126 S. W. 713, said: “Our Constitution, art. 16, § 5, provides that ‘all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. ’ Hence, it will be seen that the taxing power is a legislative function, and that, subject to constitutional restrictions, the action of the Legislature is supreme,” and in Clay County v. Brown Lumber Company, 90 Ark. 413, 139 S. W. 251, in an opinion by Judge Frauenthal, it was said:

“The Legislature has plenary power to prescribe the manner in which property shall be assessed and its valúa-tioii fixed for the purposes of taxation. Article 16, § 5, of the Constitution of 1874 provides: ‘All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.’

“It is common knowledge that one of the most difficult and perplexing undertakings of government is to fix an equal and uniform valuation on property throughout the State. Intelligent men differ as to the value of the most common objects before them; and the most that can be expected from legislation is an approximation to this end of equality, uniformity and fairness of valuation. The jurisdiction to fix this valuation is by legislation ordinarily placed with some officer or board; and boards or courts of revision are sometimes established. But the entire proceedings are statutory, and the statutory remedies provided to a party aggrieved by an overvaluation made within the jurisdiction of the particular officer or board must be pursued. * * *

“When legislation, in accomplishing the necessities of government, makes provision that certain officers or boards shall fix the assessment of property, it does not violate the right of due process of law.”

This court in Hutton, Collector, v. King, 134 Ark. 463, 205 S. W. 296, wherein it was contended that under our scheme for assessment of taxes under Art. 7, § 46, and Art. 16, § 5, of the Constitution, the Tax Assessor was the sole, primary valuer, this court denied this contention and said: “Those two provisions must, of course, be read in harmony so as to give effect to each, and when so read they mean that there shall be a tax assessor elected with duties which the name of his office implies, but that the Legislature may prescribe those duties and direct the manner in' which value of taxable property shall be ascertained. They mean, in other words, .that the office of tax assessor must form a fixed part of any valuation scheme erected by the Legislature, and that the office cannot be abolished nor made a sinecure and an entirely different scheme adopted, but that the lawmakers may, from time to time, prescribe ihe duties of the office and adopt such other methods as may be deemed expedient to ascertain the values of taxable property. * * *

“ ‘The framers of the Constitution of 1874 were therefore familiar with the practice of correcting and revising the assessment of county assessors, whether the office was created by the Legislature or the Constitution; but they have nowhere made their returns conclusive or prohibited the creation of boards to revise and equalize them.’ Further along in the opinion this statement is found: ‘As one of the necessary steps toward ascertaining values for taxation, local assessors elected for the purpose must make, or be afforded the opportunity to make, the primary assessment. But this valuation need not be final. On the contrary, it becomes the duty of the Legislature to afford the means of making this approximate estimate of values conform as nearly as practicable to the constitutional design of equality and uniformity.’ ”

It appears certain that the Arkansas Tax Commission which was created by Act 191 of 1949 must look to said Act 129 of 1927 for the method or mechanics of its procedure. The contention is made, however, that Act 191 is invalid for the reason that it attempts to incorporate portions of other acts' by reference to title only and therefore offends Art. 5, § 23 of the Constitution, which, in effect, provides that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only. The answer to this contention is that, as we construe Act 191, it is a reference statute which is original, complete and intelligible in itself and therefore does not offend against the Constitution.

In Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. 2d 427, this court, in construing Art. 5, § 23, of the Constitution, said: “In addition, it may be said that textwriters and courts generally say that the constitutional requirement does not apply to supplemental acts not in any way modifying or altering the original act, nor to those merely adding new sections to an existing act. * *

“ ‘It is not necessary, in order to avoid a conflict with this article of the Constitution, to reenact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the Constitution or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty and the final imposition of the burden are directed to be in the form and by the procedure given by the other and general laws of the State. Reference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law. The evil in view in adopting this provision of the Constitution was the incorporating into acts of the Legislature by reference to other statutes of clauses and provisions of which the legislators might be ignorant, and by which, affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law which would not receive the sanction of the Legislature if fully understood.’

“ ‘There is no evil of this or of any nature to be apprehended by the mere reference to other acts and statutes for the forms of process and procedure, for giving effect to a statute otherwise perfect and complete. It would be a serious evil to compel the engrafting upon and embodying in every act of the Legislature all the forms and the details of practice which may be necessarily resorted to to carry any one statute into effect, when the same proceedings are provided for by the general statutes of the State, and are applicable to hundreds of other cases, and with which the legislators may be supposed to be reasonably familiar.’ ”

-(2)-

As to the second question whether' the Tax Commission exercised its powers within the time contemplated by Acts 129 and 191, above, we hold, on the record presented, that it did not, and therefore, the present case must be affirmed for this reason alone.

The constitutional officer in the beginning of the taxing process is the County Assessor. It is his duty to assess real property annually between the first Monday of January and the 3rd Monday in August, each year (Ark. Stats. 1947, §§ 84-414 — 84-416). Thereafter, he is required {% 84-447) to file report of his assessment with the County Clerk on or before the third Monday of August, and in addition, ho is required to make report to the Arkansas Tax Commission of the total assessment of the county, and the County Clerk shall immediately lay this report of assessment before the County Equalization Board (% 84-707). All property shall be assessed according to its value on January 1st of each year. (§ 84-426).

The State Tax Commission may at any time between January 1st and the third Monday in August, in conjunction with the County Assessor, or on its own motion, re-assess all property or correct assessments.

The Tax Commission is required to assess all utilities, etc., in addition to re-assessment. List of utility property shall be delivered to the Tax Commission on or before March 1st (§ 84-601).

The Legislature of 1929 created a County Equalization Board (§ 84-701), which is required to meet annually on the third Monday of August of each year (§ 84-705) and equalize the individual assessments. For this purpose, the Board meets on the third Monday in August and “if necessary up to the third Monday in September and not thereafter, exercise its functions as a Board to equalize the assessed values of such property as has been assessed by the assessor-for the then current year, etc.” (§ 84-706). By this section it is provided that the County Equalization Board may not meet after the third Monday in September for the purpose of equalizing the assessed values of property assessed by the assessor.

Anyone appealing from the orders of the County Equalization Board shall file his appeal with the County Court on or before the second Monday of October ‘ ‘ and shall have preference over all matters in said court and shall be heard and order made oil or before the first Monday of November.” (§ 84-708).

The County Clerk then enters upon the assessment record the adjusted or equalized assessment value of the property as found and fixed by the County Equalization Board unless further adjustments are ordered by the County Court on appeal or by the State Equalization Board (§ 84-712). On or before the second Monday of November, the County Clerk must file, unless otherwise ordered by the Equalization Board (§ 84-713), with the State Equalization Board, a final abstract of the tax books showing “by total of items and value the total assessment of his county after all adjustments.”

The Arkansas Tax Commission, as such, convenes the first Monday of March in each year, § 16, Act 129, and is in continuous session thereafter except when meeting as a State Board of Equalization, § 7, Act 129. Under its powers, the Commission has authority to act as an assessing body in conjunction with the County Assessor and the County Equalization Board and may act in assessing or re-assessing from the opening of the Assessor’s books in January of each year until the books are delivered to the County Equalization Board in August of each year. The assessment made by the Commission is treated as an original assessment and subject to equalization by the County Equalization Board and to appeal as in original assessments.

The Commission, acting as a State Equalization Board, is required, under §§ 84-714 and 84-716, to complete its work and certify its records to the County Clerk in each year on or before the third Monday of November of each year.

As we construe Act 129, the entire scheme of taxation for the current year is completed by the time the County Equalization Board adjourns and within time for appeal to the County Court. The intent was that the appeal would be disposed of in time for the Quorum Court for the current year to levy taxes.

As above noted, § 33 of Act 129 requires copy of the complete record of the Arkansas Tax Commission, acting as an Equalization Board, to be filed with the County Clerk on or before the third Monday of November, in each county in which the assessed valuation of property has been, by the Board, ordered increased or decreased, the date on which the various Quorum Courts meet (§ 17-401) thus affording the Quorum Court a yardstick upon which to levy taxes for the current year.

Obviously, in the present case, the Arkansas" Tax Commission, acting as such and as a Board of Equalization, in 1949, did not complete its work by the third Monday in November, 1949, as we hold it was required to do under Act 129.

In conclusion, we hold that Acts 129 and 191 are constitutional and valid enactments, but since, as indicated, the Arkansas Tax Commission failed to complete its work by the third Monday in November of 1949, for this reason only, the case must be, and is affirmed.

The Chief Justice and Leflar, J., concur in part and dissent in part. Justices MoFaddin and George Rose Smith concur.