Belk's Department Store, Inc. v. . Guilford County , 222 N.C. 441 ( 1943 )

STACY, C. J., dissenting. The plaintiff, a corporation under the laws of this State, is the owner of a lot and building thereon at the southeast corner of the intersection of South Elm Street and East Market Street, in the city of Greensboro, Guilford County. The property was listed for taxation as of 1 January, 1941, and appraised or valued for the purpose of tax assessment in regular course by the authorities established by law for that purpose.

In the county of Guilford a Revaluation Board of Assessors had been established by statute applicable to that county, chapter 86, Public-Local Laws of 1941, which, in the order of procedure provided, first undertook the appraisal of the property and made separate findings as to the value of the lot and the value of the building thereupon, and finding the total value of the property therefrom. The value of the land was fixed at $271,190.00 and a "tax value" of $230,511.50 resulted by reason of a rule, uniformly applied, that for taxing purposes 85% of the real value should be observed. The record does not disclose the total valuation of land and building together.

The plaintiff, contending that the valuation was excessive, filed a complaint before the Guilford County Board of Equalization and Review, a board created under authority of the above cited statute, ch. 86, Public-Local Laws of 1941, requesting a reduction of the valuation set on the land alone, not complaining of the value placed on the building. This complaint was filed 16 December, 1941. The plaintiff was represented at the hearing, which resulted in a reduction of $6,825.00, which it appears was to correct an error as to the frontage of the lot on Elm Street. Contending that the valuation was still excessive, plaintiff appealed from this board to the Board of County Commissioners of Guilford County, sitting as a Board of Equalization and Review. Machinery Act of 1939, sec. 1105, et seq. (Michie's Code of 1939, sec. 7971 [160], et seq.). The appeal was heard on 16 April, 1942, and on 15 June, 1942, the board denied any further reduction of the valuation. Appeal was then taken to the State Board of Assessment (q.v., Michie's Code of 1939, secs. 7971 [106]-7971 [110], Machinery Act of 1939, secs. 200204), where plaintiff was given a hearing on 29 July, 1942, as a result of which the valuation theretofore made was confirmed.

It is alleged in the petition that no oral testimony had been taken on the hearings; but that petitioner has filed statement of its contentions, "together with a tabulation of the figures involved," and that at the hearing before the State Board of Assessment, it introduced a "certificate of valuation" made by the Greensboro Real Estate Board, in which the value of petitioner's land was placed at $222,264.00. The petition recites various evidential matters in support of the merit of its contention that the value placed on the land is excessive.

As bearing on the right to the writ, plaintiff points out in the petition that there is no provision in the Machinery Act for an appeal from an adverse decision of the State Board of Assessment and avers that it is advised and believes that in such case access to the courts may be had bycertiorari. The prayer of the petition is for a writ of certiorari to the State Board of Assessment to bring up the cause for a hearing in the Superior Court.

The defendants moved to dismiss the petition, assigning as grounds: (1) That plaintiff paid taxes voluntarily for the year 1941 on the property as valued; (2) that petitioner's only remedy by way of attack on the assessment was to pay the taxes and sue for recovery; (3) for that petitioner seeks a review of a finding of fact by the State Board of Assessment without alleging any error of law, want of evidence to sustain the finding of fact, or any allegation of want of jurisdiction in the State Board of Assessment, and without any allegation that the valuation fixed on petitioner's property by the State Board of Assessment was not equalized with the valuation of other property in the county; and (4) that the petition discloses no ground entitling the petitioner to a writ ofcertiorari or a jury trial to determine the facts in the matter.

Upon the hearing, Judge Olive, holding the August, 1942, Term of Guilford Superior Court, overruled the motion to dismiss the petition, and ordered that the writ be issued as prayed for by plaintiff. From this order defendants appealed, assigning error. The plaintiff contends that the action of the State Board of Assessment in fixing the value of its property for purposes of taxation was aquasi-judicial act and, therefore, subject to court review, which may be had by certiorari, since the statute does not provide for an appeal to the court. Upon this theory, the propriety or necessity for review would be referred to the general power of the court to supervise inferior courts and tribunals with respect to judicial acts, and in this State the scope of such review would be controlled by the rules of the common law. But plaintiff is not content to rest its alleged right of review on this basis alone — probably because, where the practice obtains, review by certiorari on this principle is generally confined to errors of law — principally those affecting the jurisdiction of the board or the validity of the procedure — and does not include questions of fact or, to be specific, valuation of property for purposes of taxation. The plaintiff goes further than such a review would imply, and demands a de novo hearing in the Superior Court upon the merits, in which the value of the property may be fixed by a jury. Counsel for plaintiff in support of this demand call to our attention Article I, sec. 19, of the Constitution, relating to trial by jury, and cite certain decisions of this Court which they regard as having a favorable connotation: Dougan v.Arnold, 15 N.C. 99; Petty v. Jones, 23 N.C. 408; Lunceford v.McPherson, 48 N.C. 174; Hartsfield v. Jones, 49 N.C. 309; Walls v.Strickland, 174 N.C. 298.

It can readily be seen that where certiorari is used as a substitute for an appeal expressly provided in the law, which has been lost without the fault of the petitioner, the hearing in the court must necessarily be denovo, if the appeal provided is of that nature. It is otherwise whencertiorari is used as at common law to bring up for review the action of inferior courts or tribunals upon the principle that the acts sought to be reviewed are judicial or quasi-judicial, or within the supervisory or "superintending" power of the court. 10 Am. Jur., Certiorari, sec. 4;Hartsfield v. Jones, 49 N.C. 309, 310.

Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57, and Taylor v. Johnson,171 N.C. 84, 87 S.E. 981, rest upon the principle that the Legislature in creating an inferior court, without express right of appeal, cannot thus destroy the constitutional authority of the Superior Court or by act of the Legislature create courts of equal dignity and jurisdiction, and that in the absence of a provision for an appeal from such court, certiorari will lie as a substitute therefor. There is no doubt that the function of such a writ would be the same as the appeal usually provided in connection with such courts and would, in proper instances, bring up the case for a trialde novo. That principle has not been extended to a review by certiorari of the action of administrative bodies. When not otherwise provided by statute, the review is within the scope of common law rules.

1. Certiorari will not lie to bring up for review the valuation of landfixed by the State Board of Assessment on appeal from the countycommissioners acting as a board of equalization, where the proceeding wasin accordance with the statute and no want of jurisdiction or abuse ofpower or discretion is charged, and only errors of judgment are involved.

The statute restoring the writ of certiorari subsequent to the adoption of the Code of Civil Procedure, provides: "Writs of certiorari, recordari and supersedeas are authorized as heretofore in use." C. S., 630. Its use here closely follows that of the common law; and our Reports disclose no instance in which it has been used for the purposes suggested by the appellee, and no case, which, in our judgment, serves as authority for such use.

The scope of review under the writ as used at common law has been thus defined: "According to the weight of authority, where the scope of the writ has not been narrowed by statute, its office extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of, and all questions of irregularity in the proceedings, that is, of the question whether the inferior tribunal has kept within the boundaries prescribed by the express terms of the statute law or well-settled principles of the common law." 10 Am. Jur., p. 524, sec. 3.

When certiorari is addressed to boards of assessment or boards of assessment and equalization, where that practice is permitted, it is generally held that the power of review, as in other instances of its use under the common law, does not extend to questions of valuation, but only to jurisdictional or procedural irregularities or errors of law. State exrel. American Exp. Co. v. State Board of Assessment and Equalization,3 S.D. 338, 53 N.W. 192; People ex rel. Onderdonk v. Queens County, 1 Hill (N. Y.), 195; Tomlinson v. Board of Equalization, 88 Tenn. 1,12 S.W. 414; State ex rel. Vance v. Dixie Portland Cement Co., 151 Tenn. 53,267 S.W. 595; Colonial Trust Co. v. Scheffey (N. J.), 69 A. 455. In New York and New Jersey, and possibly some other states, certiorari has been made a special proceeding, giving to the reviewing court, under certain conditions, power to consider questions of valuation; Cooley on Taxation, section 1633; but even in those courts certiorari has been denied where the question raised as to valuation concerns only the exercise of a discretion on the part of the valuing board. Colonial Trust Co. v. Scheffey, supra;People ex rel. Onderdonk v. Queens County, supra.

In Cooley on Taxation, the outstanding authority on this subject, after reviewing numerous leading authorities on the subject, the author makes this observation: "The following conclusions are deduced by the authorities from these general principles: — that assessments cannot be revised and set aside on this writ on the ground merely that they are excessive or unequal, except where the statute otherwise provides; or that the assessors have erred in any matter of judgment, or have been guilty of irregularities in the exercise of their authority, not being of a nature to deprive them of jurisdiction or to take from the party complaining any substantial right." And again, "The discretionary action of a county board in equalizing the assessments of the county, like the assessments themselves, is not subject to review on this process." And again, "It(certiorari) will not lie to review any merely discretionary action of any tribunal; nor is it within the proper scope of the writ to review the decisions of inferior tribunals on the merits." Cooley on Taxation, sec. 1633, pp. 3274, 3275-6.

Consistently with this principle, certiorari has been recognized in this State as a proper writ to bring up for review and correction action of the State Board of Assessment involving errors of law and mistakes or defects of procedure. Power Co. v. Burke County, 201 N.C. 318, 160 S.E. 173;Caldwell County v. Doughton, 195 N.C. 62, 141 S.E. 289. Neither of these cases is authority for the contention of the plaintiff thatcertiorari will lie to review the valuation of property or redetermine it in court where no error in law is charged.

We do not regard the references to these cases in Hooker v. Pitt County,202 N.C. 4-6, 161 S.E. 542, as justifying the use of the writ where only the simple question of valuation is involved, without any charge or showing that in such valuation the board exceeded its powers or abused its discretion. Upon the theory presented by the plaintiff, it would have as much right to appeal by way of certiorari had the over-valuation amounted only to a few dollars rather than a few thousand.

Some attention might be given here to the apparent assumption upon which this petition for certiorari proceeds — that every act of an administrative board involving the exercise of sound judgment and discretion must be submitted to court review on the theory that the act is judicial. It is not expected that the law will be administered by robots. It is inevitable that in following the ordinary procedure imposed upon them by statute, boards of this kind must perform some acts not purely ministerial, make some decisions to which sound judgment and discretion must be applied — as, for instance, in the ascertainment of facts and conditions as a basis for further administrative action. The simple fact that the result is reached by similar processes of reason, common to all men, does not expropriate the exercise of these faculties to the judiciary. The action could only be judicial in any proper sense if it went to the determination of some right the protection of which, under our system of jurisprudence, is the peculiar office of the courts. No such right was involved in the challenged action; but, however labelled, we do not find in it that necessity of court review which must exist as a justification for the writ. Person v. Watts, 184 N.C. 499, 506, 115 S.E. 336.

2. The provision of the Constitution relating to trial by jury does notrequire court review of the valuation of land for taxation or determinationof such value by a jury in a de novo hearing, and will not support resortto certiorari for that purpose.

Article I, sec. 19, of the Constitution provides: "In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable."

Similar provisions are found in the constitutions of most of the American states. A summary of these expressions may be found in Page Jones on Taxation, sec. 201.

Under this clause of the Constitution, trial by jury is only guaranteed where the prerogative existed at common law or by statute at the time the Constitution was adopted. Groves v. Ware, 182 N.C. 553, 109 S.E. 568;R. R. v. Parker, 105 N.C. 246, 11 S.E. 328.

In Page Jones on Taxation, after the summary above noted, we find, sec. 202: "These provisions are held to be intended to secure and protect the right of trial by jury in cases where such right existed at common law. They are not intended, unless such affirmative intention is expressly stated, to extend the right of trial by jury to cases in which no such right existed at common law, as in cases of taxation." Cooley on Taxation, sec. 1220.

A difference between the owner and the State Board of Assessment with regard to the proper value to be placed upon the land for the purpose of taxation is not a controversy at law respecting property within the meaning of the constitutional provision. The purpose of the valuation is merely to produce a yardstick by which the amount of the tax may be measured and equalized with other subjects of taxation within the same class. Of itself it does not affect any right in the property or in its use.

In Cowles v. Brittain, 9 N.C. 204, Chief Justice Taylor, speaking to this point, said:

"There is a tacit condition annexed to the ownership of property that it shall contribute to the public revenue in such mode and proportion as the legislative will shall direct; and if the officers entrusted with the execution of the laws transcend their powers to the injury of an individual the common law entitled him to redress. But to pursue every delinquent liable to pay taxes through the forms of process and a jury trial would materially impede, if not wholly obstruct, the collection of the revenue; and it is not believed that such a mode was contemplated by the Constitution." Unemployment Compensation Commission v. Willis, 219 N.C. 709,713, 15 S.E.2d 4.

3. Valuation under the current Machinery Act, where no error in law orabuse of discretion is alleged, is final and conclusive.

The distribution of the power of government in any state is a political privilege. Where the written Constitution does not otherwise direct, the Legislature may distribute these powers and functions as it may deem proper for the best interests of the public, and where notice and hearing is provided may make the action of administrative boards set up for that purpose final and conclusive, without violating due process of law. This is true with regard to the assessment of taxes. Cooley on Taxation, sec. 1118;Wade v. Commissioners, infra.

The section of the Machinery Act relating to the final disposition of the proceeding for valuation — Michie's Code of 1939, sec. 7971 (162) — and providing that the valuation "shall be entered upon the fixed and permanent records and shall constitute the valuation for taxation," in our opinion, contemplates that such valuation shall be final and conclusive. Wade v. Commissioners, 74 N.C. 81. It follows that the courts, acting only under such supervisory powers as they may have under the Constitution, have no power to interfere except where the jurisdiction is invoked for the review of errors in law.

This does not mean, of course, that under the guise of tax assessment a property owner may be made the victim of fraud or oppression, or subjected to a confiscation of his property, or otherwise injured by any illegal act on the part of the officials or boards charged with the administration of the law. This would make the valuation in point of law no valuation at all, and for such injuries the law is replete with remedy. It does mean that where the taxing laws and procedure are not themselves in contravention of the Constitution, and when boards and officers authorized to administer them act within their jurisdiction, in accordance with the procedure laid down, and without abuse of discretion, there is neither the necessity nor the legal ground of court review.

But while appeal was not provided or expected under the former law, Wadev. Commissioners, supra, the plaintiff here has enjoyed the full right of appeal to three successive boards beyond the original board by which the property was valued, all of which were empowered to hear, and did hear, the matter upon the merits, and now wishes to be further heard before a jury as in a civil action.

In Tomlinson v. Board of Equalization, supra, referring to the question of valuation, the Court said: "Every interest of the state alike demands that such questions shall be settled cheaply and speedily. Where an act creating a special tribunal, even exercising judicial functions, gives it power and authority to settle particular grievances, such as this, and either expressly or by plain implication declares that the judgment of such special tribunal shall be final, and it confines itself within its jurisdiction and does not `act illegally,' the writ ofcertiorari will not lie to review its action upon the merits."

Inasmuch as it appears that some five thousand complaints were disposed of by the Guilford County boards alone, the following quotation fromColonial Trust Co. v. Scheffey (N. J.), 69 A. 455, in denying a petition for certiorari, meets our approval: "The only substantial question sought to be raised before this court is one of fact or rather of opinion, viz., whether the assessment is too high. This question has already been disposed of adversely to the prosecutor by the county board of taxation and by the state board of equalization of taxes. The object of the creation and maintenance of these boards was, in part, to provide tribunals having peculiar opportunity and machinery for the investigation of questions of valuation, and, in part, to relieve the regular courts of this administrative function when disconnected with any violated principle of law. — Each of these objects will be frustrated if this court is to take on these cases of disputed valuation just as if no special tribunals for this purpose had been provided."

4. We have tried to avoid the citation of decisions turning solely upon the application of local statute law, but we consider the cases cited as expressing the law in this jurisdiction as applied to the facts of this case. We do not intend to lay down any comprehensive rule regarding the use of the writ; that is a broader subject, to be dealt with when occasion arises. Limiting our opinion to the point involved in the appeal and in the petition for certiorari — the question of valuation — it is sufficient to say that in no aspect of the petition is the plaintiff entitled to the writ as an instrument of review or to secure a de novo trial upon the merits.

It would be a waste of time to speculate upon what the plaintiff's remedy might be for grievances of which it does not complain.

The order of the court below directing the writ to issue is reversed. Judgment will be entered in the court below dismissing the petition.

Reversed.