Edward Hines Yellow Pine Trustees v. State Ex Rel. Knox

112 So. 12, 146 Miss. 101, 1927 Miss. LEXIS 236

• Court: Mississippi Supreme Court
• Decided: February 14, 1927
• Docket: No. 26159.
• Status: Published

Opinions

Smith, C. J,,

delivered the opinion of the court.

The attorney-general, being of the opinion that the assessment of the appellants’ property for taxation, approved by the board of supervisors of Pearl River county at its August, 1923, meeting was too low, appealed therefrom to the court below. The appeal was taken within twenty days after the adjournment of the November meeting of the board, at which meeting there was entered on the minutes of the board the order of the state tax commission approving the assessment roll.

The appellants moved to dismiss the appeal, for the reason that it was taken after the time allowed therefor had expired. This motion was overruled, and when the case came on for trial the assessment was increased, and it was — “further ordered and adjudged that as and when said tax collector or tax collectors shall collect said taxes,' or any part thereof, he shall remit to Rush H. Knox, attorney-general, or to his attorneys of record, the fifteen per centum on such amount or amounts so collected to,which he is entitled by law.”

Two errors are assigned, one the overruling of the motion to dismiss the appeal, and the other the inclusion in the judgment of the order directing’ the sheriff and tax collector to pay over to the attorney-general fifteen per centum of the amount of taxes collected by him on the assessment.

The statute under which the appeal was taken is chapter 120, Laws 1918, which provides:

“The county attorney, the district attorney, or'the attorney-general, if the state, county or municipality be aggrieved by a decision of the hoard of supervisors or the municipal authorities of a city, town, or village as to, the assessment of taxes, may, within twenty days after the adjournment - of the meeting at which such decision is made, or within twenty days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the state tax commission, or within twenty days after the adjournment of the meeting of the hoard of supervisors at which the approval of the roll by the state tax commission is entered, appeal to the circuit court of the county.”

A similar right of appeal is given the taxpayer by section 10, chapter 323, Laws 1920.

Appellants’ contention is that the decision of the hoard of supervisors as to the assessment of taxes from which the statute grants an appeal is the final, and not an interlocutory decision; such decision becomes final when the assessment roll is approved, and that the assessment roll is approved when the board of supervisors enters on its minutes, or complies with, the order made by the state tax commission after an examination by the commission of the recapitulation of the assessments of the various classes of property. In other words, that in the case at bar, the appeal should have been taken immediately after the October meeting of the board of supervisors, for it then approved the assessment roll by entering on its minutes the order of the state tax commission approving the assessments of the various classes of property, as set forth in the recapitulation thereof. The cases relied on by appellant in support of this contention are those hereinafter cited.

A clear understanding of the questions raised by the motion to dismiss will be facilitated by setting forth the things to be done,-under chapter 323, Laws 1920, by the board of supervisors and the state tax commission in approving an assessment roll.

The tax assessor must complete and deliver the assessment roll to the clerk of the board of supervisors on or before the first Monday in July, at which time the board of supervisors must equalize the assessments, and at its next, or August, meeting, will hear and determine the objections of the taxpayers thereto. A recapitulation of the assessments of the various classes of property, as equalized, must then be transmitted by the board of supervisors to the state tax commission by September 1st. This recapitulation must then be examined by the state tax commission, and if it appears therefrom that the assessments of all of the various classes of property are correct, it shall be approved by the state tax commission, in writing, transmitted to the board of supervisors, and entered by the board on its minutes. If it appear from this recapitulation that the assessment of any class of property is too high or too low, the state tax commission shall order the board of supervisors, in writing, to raise or lower the assessment thereof. On receipt of this order, the board of supervisors must raise or lower the assessments in accordance with the instruc tions of the state tax commission, after having first corrected any errors in the former equalization thereof. When the order of the state tax commission approving the recapitulation of the assessment roll has been entered on the minutes of the board of supervisors, or the order of the state tax commission to increase or lower the assessments of any class of property has been com plied with, by the board, the clerk of the board must then make two (in some counties three) copies of the roll and transmit one to the state tax commission, this being the first time the assessment roll is submitted to the state tax commission for its consideration, it having theretofore dealt only with the recapitulation of the assessments of the various classes of property. When the assessment roll has been received by the state tax commission, it must examine the roll, and, if found to be correct, it must certify that fact to the board of supervisors, but if “incorrect in any particular, it may return it to the board of supervisors for correction,” which board shall then “cause the same to be corrected in accordance with the recommendations of the state tax commission.” This correction of the roll may necessitate changes in some, if not all, of the individual assessments. When the order of the state tax commission approving the roll has been entered, as it must be, on the minutes of ■the board of supervisors, or when the board has complied with the order of the commission to further correct the roll, then, and not until then, the roll is approved and ready for use by the tax collector.

In the case at bar, the recapitulation of the assessment roll, as equalized by the board of supervisors at its August meeting, was transmitted to and approved by the state tax commission. An order of the commission approving this recapitulation was transmitted to and was entered on the minutes of the board, of supervisors at its October meeting. A copy of the roll was then transmitted by the clerk of the board to the state tax commission, which then approved the roll by a written order which it transmitted to the board of supervisors, and which that board entered on its minutes at its November meeting.

It is clear from the examination hereinbefore made of chapter 323, Laws of 1920, that any decision by the board of supervisors as to the assessment of taxes made at the August meeting when it is equalizing the assessment roll, was, when made, an interlocutory decision, for it might thereafter have been changed, had it become necessary so to do, either because of an order made by the state tax commission after an examination by the commission of the recapitulation of the assessments of the various classes of property, or after an examination by the commission of the completed assessment roll. Such a decision cannot become, in a strict sense, final until the assessment roll is either corrected or approved pursuant to the final order therefor by the state tax commission. In other words, in the case at bar, the decision at which the attorney-general was aggrieved, and which the court below reversed, became, in a strict sense, final when, and not until, the hoard of supervisors entered on its November minutes the order of the state tax commission by which it approved the roll.

"Whether an appeal from a decision of the board of supervisors would lie under the statute before the approval of the assessment roll was presented to this court in the case of Moller-Vandenboom Lumber Co. v. Board of Supervisors of Attala County, 135 Miss. 249, 99 So. 823, wherein an appeal was taken immediately after the adjournment of the August meeting of the board of supervisors at which it rendered a decision in equalizing the assessment roll, at which the appellant felt aggrieved. The court below had overruled a motion to dismiss the appeal the ground of which was that the appeal was premature. The record therefore presented two questions for decision: (1) Will an appeal lie under the statute before the decisions complained of becomes final, and should that question be answered in the negative? (2) Had the decision complained of become final when the appeal was taken? Both of these questions were answered in the negative, thereby disposing of the case and all questions there presented. • The court did there say that which is obviously true:

“That no final adverse decision to the taxpayer can be made by the boarpl until its meeting at which the instruc tions of the state tax commission for horizontal increases or decreases are entered by the board of supervisors.”

This statement, however, cannot be construed as a holding that the compliance by the board of supervisors with such instructions of the state tax commission would constitute a final approval of the roll, for that question was not then presented for decision. The statute under consideration in that case was not the one under consideration here, but was section 10, chapter 323, Laws 1920, which grants the right of appeal to a taxpayer, and, while the wording of that statute and the one under consideration here are not identical, their meaning, in so far as the question now under consideration is concerned, is identical.

That case was followed in Wilkinson County v. Foster Creek Lumber Co., 135 Miss. 616, 100 So. 2, wherein the appeal was taken immediately after the adjournment of the August meeting of the ’board of supervisors at which it equalized the assessment roll.

In State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, the appeal was taken by the attorney-general under the statute here under consideration. In that case, there were two petitions for appeal, one after the adjournment of the October meeting of the board of supervisors at which it entered the order of the state tax commission approving the recapitulation of the assessments of the various classes of property, and the other after the adjournment of the November meeting of the board of supervisors at which it entered the order of the state tax commission approving’ the assessment roll. This appeal was dismissed by the court below on the ground that:

“It was not filed within the time required by law.”

The contention of counsel for the appellee there in support of this ruling of the court below was that the appeal should have been taken within twenty days after the adjournment of the August meeting of the board at which the decision complained of was first made. In response to this, in reversing the case on the authority of the two cases hereinbefore cited, the court said:

“The appeal provided for can only he taken from the order finally approving the assessment after its approval by the State Tax Commission.” (Italics ours.)

The court did not state which of the two appeals was filed in time, but simply stated that two appeals were filed out of an abundance of caution, and that:

“The above authorities settled the date at which the appeal could he rightfully taken.”

The Moller-Vandenboom Lumber Co. case was again brought to this court on appeal to the court below, taken immediately after the adjournment of the meeting of the board of supervisors at which it entered an order of the state tax commission approving the recapitulation of the assessments of the various classes of property. Moller-Vonderboom Lumber Co. v. Attala Company, 138 Miss. 289, 103 So. 81. The court below dismissed the appeal on the ground that the bond therefor was defective, and this court, in reversing that ruling, held that the bond was valid and that the appeal was taken within the time prescribed by the statute. That case was followed in Marathon Lumber Co. v. State, 139 Miss. 125, 103 So. 798. The ground of the first of these cases seems to he, and of the second is, that the assessment roll is approved by the entry on the minutes of the hoard of supervisors of the order of the state tax commission approving the recapitulation of the assessments of the various classes of property, unless corrections should thereafter be ordered .to he made in the roll by the state tax commission after it examines the assessment roll. That an appeal will lie after the November meeting of the hoard of supervisors, in event it then complies with an order of the state tax commission to further correct the roll, is not only recognized but expressly so stated in the opinion in the Marathon Lumber Co. case, which makes a distinction between the effect of the entry by the board of supervisors at its October meeting of an order of the state tax commission, approving the recapitulation of the assessment roll, and the order of the hoard then entered pursuant to an order of the state tax commission, disapproving the recapitulation of the assessments of the various classes of property" and ordering horizontal increases or decreases therein, holding that in the first case the roll is approved, hut not in the second. The error in this holding is that the assessment roll is not, under the statute, approved until the approval thereof by the state tax commission, after an inspection by the commission of the roll itself, has been certified to the board of supervisors and entered on its minutes.

This résumé of these decisions disclose that they all hold that an appeal will not lie from a decision o! the board of supervisors as to the assessment of taxes until the assessment roll has been approved. The two last-cited cases further hold that when an order of the state tax commission, approving the recapitulation of the assessments of the various classes of property, is entered on the minutes of the board of supervisors the assessment roll is thereby so far approved as to permit an appeal therefrom to then lie. This last holding, if incorrect, which we do not mean to intimate, can work no harm or inconvenience for it does not cut off the right to an appeal after the approval of the roll at the November meeting of the board, and it is more than probable that, in the vast majority of cases, no further correction of the assessment roll will or could be made by the state tax commission after it has examined the assessment roll.

It was said in the Marathon 'Lumber Co. Case that no further corrections can be made in the assessment roll after the entry by the board of supervisors of an order of the state tax commission approving the recapitulation thereof, but this statement, as hereinbefore pointed out, is erroneous, was not necessary for the decision of that case, and is not here controlling.

In none of those eases was the question here under consideration, to-wit, the right to an appeal after the entry on the minutes of the hoard of supervisors of the order of the state tax commission approving the assessment roll, presented for decision, except in the Wyoming Manufacturing Company ease, which, as 'hereinbefore pointed out, did not negative such right.

Coming again to the case at bar, the decision at which the attorney-general was aggrieved is that rendered by the board of supervisors when it equalized the assessment roll at its August meeting, and the statute expressly grants the right to appeal therefrom — “within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the state tax commission is entered.” .

The appeal was taken within twenty days after the adjournment of the meeting at which the approval of the roll by the state tax commission was entered o.n the minutes of the hoard of supervisors, and consequently comes within the express language of the statute.

To hold that an appeal must he taken immediately after the meeting of the board of supervisors at which it enters the order of the state tax commission approving the recapitulation of the assessments of the various classes of property, and will not lie after the entry of the order of the state tax commission approving the assessment roll would cut off the taxpayer, the district attorney, and the attorney-g’eneral from appealing from any correction which the state tax commission might order to be made in the assessment roll after its approval of the recapitulation thereof. The statute did not so intend, and we cannot so hold.

Coming now to the second assignment of error we must hold that the order directing- the sheriff and tax collector, to pay commissions to the attorney-general should .not have been included therein for the reason that, leaving out of view and expressing no opinion on the right of the attorney-general to such commissions, the order for the payment thereof in this judgment cannot bind the sheriff for the reason that he is not a party thereto, and cannot bind the state and county for the reason that, while they are parties thereto in that they are represented by the attorney-general, nevertheless, the attorney-general cannot represent them in this particular matter because his interest therein is antagonistic to that of the state and county.

This order will be eliminated from the judgment, but in all other respects it will be affirmed.

Affirmed.