Ex parte Howard-Harrison Iron Co.

119 Ala. 484

• Court: Supreme Court of Alabama
• Decided: July 1, 1898
• Status: Published

Opinion

McCLELLAN, J.

There is conflict of authority on the point whether a judgment rendered before the appearance day specified in the summons or notice is irregular and erroneous merely, or void. The weight of adjudged cases and texts, however, support the view that such judgment is erroneous only and not void; and we so hold. — 1 Freeman on Judgments, §126, n. 3; 12 Am. & Eng. Encyc. of Law p. 147 r.; White v. Crow, 110 U S. 183; In re Newman’s estate, 75 Cal. 213; Stephenson v. Newcomb, 5 Harr. (Del.) 150; Solomon v. Newell, 67 Ga. 572; McAlpine v. Sweetser, 76 Ind. 78; Ballinger v. Tarbell, 16 Iowa, 491; Mitchell v. Aten, 37 Kan. 33; s.c. 1 Am. St. 231; Grand Rapids Chair Co. v. Runnells, 43 N. W. Rep. (Mich.) 1006; Woodward v. Baker, 10 Oregon 491; McNeil v. Hallmark, 28 Tex. 157. And hence our conclusion that the rendition of the judgment involved here on the 13th day of August, when the taxpayer had been summoned to appear on t'he 14th, marks it as an irregular and erroneous judgment; but it is not a Amid one.

There was much of misdescription of and mistake in the name of the corporation tax-payer in the proceedings in the commmissioners’ court. The tax commissioner set down the name correctly in the assessment he submitted to the court — The HoAvard-Harrison Iron Company — and so it appeared in the original assessment made by the tax assessor. In docketing the case, the statement is this: “The State of Alabama v. Howard-Harrison Iron Company Pipe Works.” It is probable that the additional Avords “Pipe Works” Avere employed not as a part of the defendant’s name, but as identifying it by this reference to the character of its business, in the summons to shoAV cause against the proposed increased Araluation the defendant is called the HoAvardHarrison Pipe Works. The endorsements on the summons are as folloAvs: “Original. Howard-Harrison Iron Works. Executed by mailing a copy of the AAdthin notice to the HoAvard-Harrison Pipe Works,” etc., etc. It is not denied that this notice did in fact reach the defendant. Aud the order or judgment of the court entered on the docket under the caption of the case as set out above, is as folloAvs: “It is ordered by the Court of County Commissioners that the assessment of the property of the HoAvard-Harison Pipe Works in this case, lands, buildings, machinery,- etc., be raised from $73,695 to $100,000.”

The summons or notice was amendable, and so also the return, in respect of the name of the defendant company. — Georgia Pacific Railway Co. v. Propst, 83 Ala. 518; Singer Manufacturing Co. v. Greenleaf, 100 Ala. 272. And process which is amendable is not void, but will support a judgment. — 1 Freeman on Judgments, §126. Hence, Ave hold that the judgment or order of the commissioners’ court was not void for the misdescription or misnomer of the defendant in the notice- and return of service.

Nor is the judgment or order rendered void by its own misnomer of the defendant. By reference to the assessment made and submitted by the tax commissioner and to the docket entries preceding the entry of the-order, the judgment becomes in its present form essentially one against the Howard-Harrison Iron Company;, and even if that were not true the record supplies abundant data for its amendment nunc pro time so' as to make it speak its rendition against the defendant by accurate statement of the name of the corporation.

But it is insisted that the commissioners’ court was-wholly without jurisdiction of the subject matter of this proceeding, and that therefore, of course, - the judgment is absolutely void. This conclusion is sought to be rested upon the following considerations: (1.) That the-revenue act of 1894-5 created county boards of equalization — bodies distinct from courts of county commissioners — and vested in said boards exclusively all powers in respect of equalizing assessments of property for taxation; and (2) that though this act of 1894-5 was. in terms repealed, so far as the constitution and powers of said boards of equalization are concerned, by the act of February 18, 1897, to amend the revenue laws of' the state, and all powers of equalization were thereby in terms re-conferred upon the commissioners’ courts, yet said last named act is unconstitutional and void for that the bill approved by the Governor was not the bill which was passed by the General Assembly, but materially variant therefrom, and that of consequence the-' act of 1894-5 is still of force. The variances which petitioner supposes to exist between the bill as it passed the Senate and House, and the enrolled bill which was. signed by the President of the Senate and the Speaker of the House and approved by the Governor, arose, it is. insisted, upon the alleged facts that the Senate amended section 15 of the bill as it passed the House by striking-out the word “defendant” after the word “court” and inserting in lieu the words “either party;” that this amendment was never concurred in by the House and thus was never passed by the General Assembly, but that it is embodied in the enrolled bill as approved by the Governor; and that the following words: “If he has written the book in ink and has entered the names of all tax-payers in those cases where two or more parties pay on the same tract of land,” were in section 11 of the bill as passed by the House, that no amendment striking them out was adopted by the Senate, or if such amendment was adopted by the Senate, it was not concurred in by the House, and that these Avords are not in the enrolled bill approved by the Governor. Of course the presumption is that the bill signed by the presiding officers of the two houses and approved by the Governor is the bill AAThich the tAVO houses concurred in passing, and the contrary must be made to affirmatively appear before a different conclusion can be justified or supported. So here, it must be made to affirmatively appear that amendments of the House bill in question were adopted by the Senate and were not concurred in by the House. And this must be shown by the journals of the tAvo houses. No other eAddence is admissible. The journals can neither be contradicted nor amplified by loose memoranda made by the clerical officers of the houses. To these the courts cannot look for any purpose. Nor will it be presumed from the silence of the journals on a matter upon Avhich it is proper for them to speak that either house has disregarded a constitutional requirement in the passage of an act, except in those cases where the organic laAV expressly requires the journals to sIioav the action taken, as where it requires the yeas and nays to be entered. — Walker v. Griffith, 60 Ala. 361; 1 Cooley’s Const. Lim. 162; People v. Starne, 85 Am. Dec. 348 and notes; Jones v. Jones, 51 Am. Dec. 611, and notes; Hollingsworth v. Thompson, 40 Am. St. Rep. 220 and notes.

In respect of the act under consideration, the House journal shows that the bill originated in that body, Avas passed by it, sent to the Senate where many amendments Avere adopted, and Avas returned to the House, Avhich refused to concur in the Senate amendments, and asked a conference upon them, appointing its members of a committee to that end, that the Senate granted the requst for conference and appointed its members of the conference committee, that the conference committee met and agreed upon a report to the effect that the House should concur in Senate amendments numbered I, 2, 3, 4, 5, 6, 7, 8, 9,10,12, 13, 15, 16, 16*, 17, 18, 19, 20, 21, 23, 27 and 28, and that the Senate should recede from its amendments numbered 11, 14, 24, 25 and 26, and that this conference report was adopted by the House. The Senate journal shows that that body adopted quite a number of amendments to the House bill, and among others two amendments to section 15, that the House refused to concur in the Senate amendments, that a- conference committee was asked and appointed, that said committee reported that the House should adopt the amendments designated by the numbers as shown above in the report to the House, and that the Senate should recede from its amendments numbered II, 14, 24, 25 and 26; and that this report was adopted by the Senate. It is not shown by either of the journals what were the amendments adopted by the Senate, nor what were their numbers respectively, nor what the amendments which the House concurred in, nor those from which the Senate receded. It does appear from the Senate journal, as we have seen, that two amendments to section 15 were adopted; and it also appears that amendments were adopted to several other sections by reference to the section numbers, and that “various other amendments were adopted” no reference to sections being made; but the journal utterly fails to show the nature of these amendments or their numbers. It may well be for aught that the journals show or we can know that the words which petitioner insists should have been in the enrolled bill when it was signed by the President of the Senate and the Speaker of the House, and approv'd by the Governor were not in the bill as it passed the House originally, or if they were, that they were stricken out by one of the “various amendments” adopted by the Senate and that the amendment to this effect was one of those which was concurred in by the House on the report of the conference committee. And so in respect of the words, “either party” which now appear in section 15 of the bill as enrolled, signed and approved: The journals do not show and we cannot know but that these words were in the bill when and as it passed the House, or, if it be conceded they were not, it does not appear from the journals but that they were put into the bill by one of the two amendments made by the Senate to that section, and that this amend-meat was one of those which were concurred in by the House in its adoption of the report of the conference committee. It therefore does not affirmatively appear that the bill signed by the presiding officers of the houses of the General Assembly, and approved by the Governor is materially or at all variant from the bill that was passed by the General Assembly, and the objection urged against the act of February 18, 1897, “To amend the revenue laws of the .State of Alabama” in this connection is wholly unsupported by competent evidence.

It follows that the commissioners’ court of Jefferson county had jurisdiction of the subject matter involved in this proceeding — the equalization of the assessment of the property of the Howard-Harrison Iron Company for taxation.

It is further insisted, however, that conceding t'he general jurisdiction of the commissioners’ court to increase assessment it yet has no power to act upon increased assessments made and submitted by the tax commissioner, since the act we have been considering takes no account of nor makes any provision with reference to the latter officer, and that, of consequence the judgment or order of the court increasing the assessment of the petitioner is void. This position is untenable. It is true the act makes no mention of the tax commissioner, his powers or duties, but under it, any citizen may enter such objection to any assessment as is requisite to put into operation the powers of the court as conferred by section 15 of the act, and the court of its own motion may proceed to increase an assessment as in this case. Moreover the act of February 3d, 1897, “To provide for the more efficient assessment and collection of taxes in the State of Alabama” is to be taken in pari materia with the act of February 18, 1897, and section 11 of the former act expressly makes it the duty of the tax commissioner to make and submit to the commissioners’ court additional assessments of property -which he considers is undervalued in the original assessment.

But.aside from this, the act of February 3d in and of itself and without reference to the act of February 18th — .except as re-conferring powers of equalization upon commissioners’ courts — confers complete authorization' upon the tax commissioner and the commissioners’ court to do and perform all that has been done in this case including the appeal taken by the commissioner in the name of the state to the circuit court, and this whether the provision of said act with reference to section 512 of the Code of 1886 be sustained or not. Section 11 confers the power and makes it the duty of the commissioner to submit additional assessments to the commissioners’ court, and makes it the duty of the commissioners if they are reasonably satisfied that undervaluation exists to give notice “and try and dispose of such assessments as in other cases of undervaluations.” This provision is complete in itself and capable of perfect execution without the succeeding provision “and as provided for in section 512 of the Code of 1886,” and is to be upheld though the reference to section 512 of the Code should be stricken down — as an attempt to revive a Jaw by reference to its title only — which we do not decide. And while the act of February 3d does not in express terms provide for an appeal from the action of the commissioners’ court, section 16 thereof does so provide by the clearest implication.

There is nothing in the contention of petitioner that the judgment of the commissioners’ .court was not rendered at a term at which the court is authorized to equalize tax assessments. If the acts of February 3d and February 18th are to be taken together, the proceedings authorized by section 11 of the former act are to be had at the July term of the court. These proceedings were begun at that term and concluded on a day in August to which they were adjourned as provided in the act. If the act of February 3d is to stand apart without its provision with reference to section 512 of the Code of 1886, then no particular term of the court for action on the comissioners’ assessments is prescribed. And if section 512 of the Code is to be taken as a part of it, then the term of the court which acted on the matter here involved on August 13, of necessity was the August term presci’ibecl in that section.

We find nothing in the case made before us to authorize either of the writs prayed in the petition; and .the application for mandamus and prohibition is denied.

Denied.