Cain v. Magoffin County

249 S.W. 766, 198 Ky. 598, 1923 Ky. LEXIS 501

• Court: Court of Appeals of Kentucky
• Decided: April 13, 1923
• Status: Published

Opinion

Opinion op the Court by

Judge Clarke

Affirming.'

Section 4128 of the Kentucky Statutes provides that any taxpayer feeling himself aggrieved by the action of the board of supervisors may appeal to the quarterly court within 30 days after the final adjournment of the board, “by filing with the judge of said court a certified copy under the hand of the clerk of said board, of said action. “

In due time, the appellant filed with the judge of the quarterly court, as the basis of this action, the following paper:

“Supervisors’ Notice op Raise op Assessment por Taxes.

“To H. J. Cain: You are hereby notified that the board of supervisors of Magoffin county have raised the assessment of your property in said county from $4,-000.00 to $5,000.00 decreased to $4,500.00 by vote (on 150 a.). Said board will reconvene at the tax commissioners’ office in the courthouse at Salyersville, Magoffin county, Ky., on Monday the 3d day of April, 1922, to hear any proof you may have to offer against such raise of assessment.

“Given under our hands this 26th day of March, 1922. (Signed) Fred Prater, Chairman, Jim Rudd, Grant Litteral, A. B„ Salyer, William Arnett.

“Copy attest: Frank L. Prater, C. M. C. C.”

Upon the ground that this paper was not a certified copy of the final action of the board of supervisors, as required by section 4128, supra, the quarterly court dismissed the proceeding, as did the circuit court upon an appeal to it, and from that judgment the appellant has prosecuted this appeal.

That the paper filed by appellant is merely an attested copy of the notice to him of the proposed action of the board of supervisors to raise the assessment of his property, and not a certified copy of the final action of the board, is apparent not only from its form, but from the fact that it is dated March 26th, signed .by the members of the board, and notifies him that the board will reconvene at a later date to hear any proof he may offer against such proposed raise.

It is insisted, however, that the phrase contained in the notice, “decreased to $4,500.00 by vote,” is a certification of the board’s final action upon the rehearing held on April 3d, but the paper does not by its terms so indicate, and obviously appellant could not, as he attempted, prove that jurisdictional fact by oral testimony when the statute provides it shall be certified “under the hand of the clerk of said board.”

We are therefore of the opinion that the court did not err in dismissing the appeal.

This conclusion renders it unnecessary to consider the further contention that the appeal should have been prosecuted against the board of supervisors rather than Magoffin county.

Judgment affirmed.