Oglesby v. Chandler , 37 Ariz. 1 ( 1930 )

I concur in the opinion of Chief Justice LOCKWOOD. It is very plain from the language of House Bill 127 that it was enacted to procure a scientific survey not of a part only but of "all taxable property and classes of property throughout the State" for the purpose of placing such property upon the tax-rolls at the proper valuation, and it is equally plain from the allegations of the complaint, which are not merely undenied but for the purpose of this case admitted as true, that such a survey has not been made. It appears from the complaint that in the survey made there was no attempt whatever to survey or value property throughout the state valued at several hundred millions of dollars or of property in Maricopa county valued at more than thirty-two millions of dollars, and if this be true (and it must be accepted as such under the rules of pleading), it is clear that the very thing the legislature had in mind and directed to be done when it enacted the law has not been carried out and that nothing short of a substantially complete survey of all the property of the state, regardless of its kind or character, would be a compliance with this mandate. If the members of the legislature had thought when voting for the act that they were providing for something less than this it is safe to say that it would have found little, if any, support among them.

The tax commission assesses certain classes of property in the state and it is claimed this constitutes a yearly survey of this particular property and renders unnecessary a resurvey thereof by the tax survey board. This being true it is argued that it was intended that only that portion of the property which is valued by the fourteen assessors of the state, and not that which the tax commission values, should be surveyed and valued by the board. I am unable, however, to see wherein language so all inclusive as that used in this act — "all the property of the state of every kind and character" — can be construed in such a way as to authorize a survey of only forty or fifty per cent of the property in the state. If such had been the intention of the act it would undoubtedly have excepted from the broad term — all the taxable property of the state — this particular property.

ROSS, J.

The importance of the questions we are considering, involving as they do the revenues of the state and its different political subdivisions, is my excuse, if any be needed, for setting down my views of the law.

To begin with, we are confronted with the very unusual and extraordinary situation of being asked to pass upon the legality of the official acts of the survey board without such board being made a party. Boards or officers exercising the power of placing valuations upon property for taxation purposes are universally held to be acting judicially, and their acts are not subject to collateral attack except for fraud or want of jurisdiction or the adoption of a fundamentally wrong principle or method, the application of which substantially injures the complainant. No fraud is alleged, and it cannot be contended that the board acted without jurisdiction or that plaintiffs will be injured by the method adopted. This board must have kept records of its proceedings. Section 3 of the act (Laws 1929, chap. 46) of its creation requires it to meet and consider the survey being made at least every sixty days during its progress. The last sentence thereof reads:

"The deliberations of the Board and the information secured in connection with the survey shall not constitute a public record, but shall remain in the private files of the Board until the results of said survey shall be communicated to the several county assessors of the State as hereinafter provided."

The recorded deliberations and the evidence and sources of information acted upon by the survey board are the best evidence of what the board did.

The survey board is a state institution. Its acts affect the entire property of the state. The state and all the property owners therein are interested in what the board did. In the argument it was admitted that the board had transmitted to the assessors of the fourteen counties of the state the results of its labors to be extended on the county assessment-rolls; that all of the assessors, except those of Maricopa and Coconino counties and perhaps one other, had made the extensions. If the board had been made a party to this suit and the survey made by it presented to the court, we would not only have a judgment on the merits of the controversy but one binding on the state and all of its political subdivisions. As it is, the trial never reached the merits, but the case was decided upon an admission by defendant Oglesby and the interveners that all the charges made by plaintiffs against the board and its acts were true. One question is, Should such admissions by strangers to the board's record prevail over the presumption of law that assessing officers have in good faith performed such duties?

In Bunten v. Rock Springs Grazing Assn., 29 Wyo. 461,215 P. 244, 249, the court said:

"In Pingree Nat. Bank v. Weber County, 54 Utah 599,183 P. 334, the court held that proof as to the value of the property is absolutely immaterial in the absence of evidence tending to show fraud, and an allegation of value in the pleadings would no doubt be treated likewise. To the same effect is Pittsburg etc. Ry. Co. v. Bachus,154 U.S. 421, 38 L. Ed. 1031, 14 Sup. Ct. Rep. 1114."

In Missouri ex rel. Hill v. Dockery, 191 U.S. 170, 63 L.R.A. 571, 48 L. Ed. 134, 24 Sup. Ct. Rep. 53, it was held that the judgment of the board of equalization would not be revised on strength of allegation of undervaluation or mere use of unsupported term "fraudulent." See, also, Kansas City etc. R.R.Co. v. King, 120 F. 614, 621, 57 C.C.A. 278; State v.Western Union Telegraph Co., 96 Minn. 15, 104 N.W. 567, 568;State v. Savage, 65 Neb. 771, 191 N.W. 716, 730; 3 Cooley on Taxation, 4th ed., § 1073.

It was also stated by counsel on the argument that the survey board was personally notified of the pendency of the suit and invited to intervene. For what mysterious reason the board should have chosen to be a mere onlooker or observer, rather than an active participant and a defender of its actions is beyond my comprehension. I think it should have been forced to appear and itself either admit it made no survey or by answer present to the court what it had done, and thereby obtain a judgment on the merits of the case. With only the present parties before us, any decision reached will not be res judicata or stare decisis as to the state or any of its political subdivisions, except, perhaps, Maricopa county, and not as to it if in any proper proceeding with the board of survey as a party it be shown the survey made complied with the law. Perhaps under the technical rules as laid down concerning who are proper and who are necessary and who are indispensable parties the board of survey was not of the latter kind. But no general rule fits all facts and situations, and, when a state of facts presents itself, and the application of the general rule will secure only a partial and inadequate relief, or no relief, I conceive it to be the duty of the courts to engraft on the general rule an exception and thereby secure full and complete relief. I think the board of survey was an indispensable party.

Without intimating the existence of collusion in this case, if such a proceeding is allowed, the opportunity for parties dissatisfied with the result of the board's action to so form the issues as to defeat or set aside such result, however just or proper or complete, would be open and might be tempting. Where the acts of officers are of public concern, as here, I think neither the neglect of such officers to intervene nor the failure of plaintiffs to make them parties should be permitted to militate against the interests of the general public.

"Board of tax survey" is only another name given to the state tax commission. Although House Bill 127 purports to create a new creature and to endow it with independent duties, in fact the three officers constituting this board, acting as a state tax commission under the existing laws (chapter 75, Rev. Code 1928), could do all that House Bill 127 makes it their duty to do as a survey board. The truth is that the legislature knew the tax commission, while empowered to supervise the listing and valuation of all the property of the state and its political subdivisions for the purposes of taxation, was not supplied with sufficient funds to employ necessary help, and, accordingly, to compensate the members of the tax commission for increased labors, provided for them salaries of $1,500 per year each under the name of board of tax survey, and appropriated $30,000 for its use in doing the things it was empowered to do as a tax commission, but which it could not do without additional field and office force. The law creating the tax commission provides as follows:

"The commission shall have and exercise general supervision over the administration of the assessment and tax laws of the state, over city, town, and county assessors, and all local boards of levy and assessments, to the end that all assessments of property be made at its full cash value; and require assessors and county boards of equalization to assess all property at its full cash value. . . .

"The commission or its agents may enter upon, examine and appraise any and all properties within this state. It may require any county board of equalization, at any time after its adjournment, to reconvene and make such orders as it shall direct, may order such board to raise or lower the valuation of any property of any person, or the valuation of any class of property, and may order or direct such board or any assessor to value property, or classes of property in such way as to the commission may seem just and necessary, to the end that all property shall be valued and assessed equitably and at its full cash value." Section 3061, chap. 75, Rev. Code 1928.

The duties and powers here conferred on the tax commission extend to all kinds of property and all assessing and equalizing officers of the counties and other political subdivisions of the state, to the end that all such property shall be valued and assessed at its full cash value.

This same body, sitting as an equalization board in August of each year, is required to "examine and compare the abstracts of the assessment of the property in the several counties, and equalize the same, so that all taxable property shall be assessed at its full cash value, subject to the following rules: If it believes that the aggregate valuation of any class of property of any county should be raised or reduced, without raising or reducing other classes of such county, or without raising or reducing it in the same ratio, it may add to or take from the aggregate valuation of any such class such per cent as it believes will raise or reduce the same to the full cash value thereof; if it believes that the aggregate valuation of any class of property of any city or town, in any county, or of any class of property of any county, not in cities or towns, should be raised or reduced, without raising or reducing other classes of property of such county, or without raising or reducing them in the same ratio, it may add to or take from the aggregate valuation of any class of property of such cities or towns, or any class of property not in cities or towns, such per cent as it believes will raise or reduce the same to the full cash value thereof. The board may require any county board of supervisors, or clerk thereof, to furnish statements showing the assessment of the property of any person within the county. It shall consider and equalize such assessments and, after hearing, may increase the assessment of any person above the amount returned by the county board of equalization, when said assessment shall appear to be too low, first giving notice by registered letter to such person of its intentions so to do, and of the time and place of hearing." Section 3063, Rev. Code 1928.

Thus it may raise or reduce the aggregate valuation of any class of property without raising or reducing any other class of property, and may, after hearing, increase individual assessments.

If these officers acting as a survey board have come into possession of evidence that the valuations of the property of plaintiffs and others similarly situated should be increased, they may exercise their powers as a tax commission or equalization board and cause them to be increased. This it may do whether the assessors have extended on the assessment-rolls the valuations transmitted to them by the survey board or retained thereon the property and valuations as made by themselves. Whether it be the one or the other, this body acting as a tax commission or equalization board may change the valuations so as to attain uniformity.

As a matter of fact, whatever decision may be arrived at in the present case, the officers constituting the tax commission and state board of equalization may correct any inequalities in valuations by raising or lowering the valuations found upon the assessment-rolls of the different counties of the state. Possessing this power, as they do, they can eliminate from the tax-rolls any confusion that may have arisen by reason of this lawsuit.

I do not believe we should, without a knowledge of what the survey board actually did in the performance of its duties, undertake to define what House Bill 127 demands of it in order that its action square with the law. I think with a knowledge of what was done by the board we could well determine whether the survey made by them complied with the spirit of the law. Any definition under the present circumstances is purely abstract. There is no occasion for our determining the meaning of the act until a state of facts is presented showing an effort or failure to comply therewith. I think House Bill 127 leaves the details as to how the survey should be made to the discretion of the board. It does not require the board to adopt any particular method of procedure. This is evidenced by the statement therein (section 2, Laws 1929, chap. 46) that "the procedure established for the survey to be completed January 1st, 1930, shall govern subsequent surveys. . . ."

The board does not have to examine the property in order to survey it. The act (section 6) says:

"The board in its discretion shall have the right . . . to examine all property subject to taxation in the State. . . ."

To my mind, the state tax commission was chosen by the legislature to make this survey because it was in possession of the tax records since statehood, was familiar with the property of the state, its location, kind and value, and had personal and official knowledge of properties that had grown in value as well as those that had not increased or that had depreciated; that it was the intention of the act that such officers should supplement and verify such knowledge as they already had only in those instances where they felt it was necessary to cut out inequalities heretofore well known to exist.

The general revenue laws (chap. 75, Rev. Code 1928) and House Bill 127 are not independent of each other. The latter would be meaningless or destructive of our taxing system if not tied into the general laws governing taxation and construed as a part thereof. It was intended to supplement the tax laws as then existing.

With the record we have before us, I do not think we are sufficiently advised to pass upon the merits, and I therefore decline to enter upon a discussion of that feature of the case. When we have the facts before us, it will be time enough to determine whether the survey board performed its duties as prescribed in House Bill 127. Without the survey board and its records before us, anything we may say is mere dictum, binding neither the state nor any of its political subdivisions.