Opinion
No. 30429.
February 27, 1933.
TAXATION.
Application may be made for change in assessment roll at any time before taxes have been collected or distress proceedings taken (Hemingway's Code 1927, section 8231).
APPEAL from circuit court of Franklin county. HON. R.L. CORBAN, Judge.
Cowart Bennett, of Meadville, for appellant.
The trial court erred in sustaining the petition of appellee and entering judgment requiring the board of supervisors to grant the appellee the reduction in assessment for timber cut prior to the tax lien date of the second year of assessment in 1929.
The sole and only question presented in this appeal is whether the board of supervisors at its December meeting, 1929, had the authority to make the reduction in the assessment of the Homochitto Lumber Company, on the showing made in its written petition; that is to say was the board authorized by law to reduce an assessment for timber cut where the petition was not filed until the December meeting.
The board may reduce an assessment when timber has been cut or removed prior to the tax lien date of the second year of an assessment.
Para. 12 of section 3191, Code of 1930.
The board may at any regular, special or adjourned meeting make reductions.
Section 3192, Code of 1930.
This court has held repeatedly that any taxpayer is entitled to have an assessment reduced when timber has been cut and removed before the last prior lien date of the second year of an assessment. But until the enactment of section 3192 of the Code of 1930, applications for reductions had to be filed with the board for consideration at its August meeting. The board was controlled in this case by Chapter 323, Laws of 1920, and had not authority to consider the application and grant the reduction petitioned for at its December meeting.
Adams County v. The Bank of Commerce in Liquidation, 128 So. 110, 157 Miss. 249; Board of Supervisors of Adams County v. Peoples Savings Bank in Liquidation, 128 So. 110.
If there had been no legal assessment then Chapter 210, Laws of 1926, would have controlled. If proper notice had not been given then Chapter 211 would have authorized the board to consider objections at any regular special or adjourned meeting. Since there is no question of the legality of the assessment nor of notice or lack of notice but only the question of reducing an assessment properly made, approved and on which the taxpayer had the notice provided by law, then when the board had received no objection, either written or oral from appellee, at its August meeting, 1929, the assessment became final and appellee was thereafter precluded. The board had not lawful authority at its December, 1929, meeting to make reductions prayed for in the petition herein.
Lamar Hennington, of Hattiesburg, for appellee.
Section 6948, Hemingway's Code 1917, section 4312 Code 1906, provides that the board of supervisors shall have power at any time, on application of a party interested, or otherwise, to reduce the assessment in case of over valuation known to be such.
Where timber had been assessed on land and afterwards cut and removed proper reduction should be made in the assessment.
Jefferson Davis County v. Trexler Lumber Company, 109 Miss. 372.
The position of appellant would be well taken if this were a matter involving the making of an assessment. Certainly written objection is required to be filed by the 1st Monday in August with the board of supervisors if a property owner expects to appeal from the order making an assessment, and the authorities cited by counsel would uphold his position if we were dealing with the making of an assessment but here, we are confronted with an assessment already made as of February 1, 1928, and with which appellee was satisfied; had no reason to make objections at the August meeting, 1928, and paid the taxes on the property for the year 1928; but having cut and removed all the timber from the land before January 1, 1929 — it filed its petition with the board asking that a reduction be made of the valuation of the property assessed and in the amount of the valuation fixed by the board of supervisors on the timber on the land which was cut before January 1, 1929, and to which reduction it is entitled under section 4312, Code of 1906, which provides that the board may make the reduction at any time.
The Homochitto Lumber Company, appellee, was the owner of certain timbered lands during and prior to the year 1928, and was assessed in the year 1928 with these as timbered lands; the lands and timber being separately valued on the rolls. During the year 1928, the lumber company cut and removed the timber from these lands prior to the 1st day of January, 1929, and at the December, 1929, meeting presented a petition to the board of supervisors praying for a change of assessment under section 8231, Hemingway's 1927 Code, section 4312, Code of 1906. The board disallowed said petition, and an appeal was prosecuted to the circuit court. In the circuit court it was agreed that the assessment was made in the year 1928, and that the timber and land were separately valued on the assessment roll, and that during the year, 1928, all of the timber on the lands was cut and removed therefrom, and that the petition was filed on the first Monday in December, 1929, before the board of supervisors asking for a change in the assessment.
The court below decided in favor of the lumber company, and entered an order changing the assessment rolls in accordance with section 8231, Hemingway's Code of 1927, section 4312, Code of 1906, reading as follows: "In case of destruction or deterioration in value of any real estate by any casualty, or in case of overvaluation known to be such, or in case of clerical error in the assessment rolls, or in case of change of ownership after assessment, or in case of an increase of value by the erection of improvements, or on satisfactory evidence of such increase from other causes, the board of supervisors shall have power at any time, on the application of a party interested, or otherwise, to change the assessment so as to reduce or increase to the true value of the property, or to cause the taxes to be charged to the purchaser thereof. And in case of the reduction or increase of any assessment, the same shall be certified by the clerk of the board of supervisors to the auditor; but the board shall not, after the approval of the roll, change an assessment except in the cases enumerated."
In the case of Board of Sup'rs of Jefferson Davis County v. Trexler Lumber Company, 109 Miss. 372, 69 So. 181; Id. (Miss.), 69 So. 663, a similar case, the court held that section 4312, Code of 1906, section 8231, Hemingway's 1927 Code, warranted the board of supervisors in making a change in the assessment. There, as here, the court below rendered a judgment allowing a correction of the assessment roll under said section.
It is contended here that the petition for a change in the assessment should have been presented to the board of supervisors prior to the meeting at which they equalized the assessments in 1929, and that to permit a party to delay presenting his application until after that meeting, and after the personal assessment roll had been made up, would upset the budget.
We do not think there is any requirement that a change shall be made at any particular time. The assessment roll for lands was made and approved in August, 1928 and was not again to be passed on at the August, 1929 meeting when the personal roll was up for approval and equalization. The statute fixes no time at which an application for change shall be made. It may be made at any time before the taxes have been collected or distress proceedings have been taken. Whether it may be made after such proceedings have been taken is not before us.
We not only think the case of Board of Sup'rs of Jefferson Davis County v. Trexler Lumber Co., supra, is controlling here, but in the enactment of the Code of 1930 the Legislature adopted the policy of allowing a change to be made thereafter, precisely what was requested here. In other words, the decision in that case has been approved by the Legislature in the recodifying of the laws. That case, whether correctly decided or not, is not one that would be overruled even in the absence of Legislative action, but, having been ratified by the Legislature, we do not think we are authorized to consider whether it is correct or not.
The judgment of the court below is accordingly affirmed.
Affirmed.