CHAPTER XIII.

ERRORS IN THE ASSESSMENT, BY WHOM AND HOW CORRECTED.

§ 101. Boards of Equalization and Review.-The roll is usually open for inspection and correction of errors for a certain period, while in the hands of the assessors, and then an appeal is allowed to some local tribunal invested with jurisdiction over such matters. In some of the States, no period is allowed for correction by the assessors after the roll is completed, but application is made at once to the tribunal designated by statute for relief. In some of the States, the supervisors of the county are vested with the power of revising and correcting the roll, in others it is a board of county commissioners, or the County Court, and in others a board of equalization, but whatever be the name of the tribunal, its powers and the errors which it can correct are of a similar nature. Where the assessors have jurisdiction of the person, and have acted within the scope of their powers, and the error complained of is in the valuation of property, listing of property claimed as exempt, or the omission of some requirement of the statute merely directory, these tribunals can give relief; but if they have acted without jurisdiction, or have exceeded their powers, they cannot give relief.

Boards of Equalization.-The functions of these boards is twofold, they are sometimes vested with the powers of a board of review in addition to other powers, but when not invested with such powers, their duty is to equalize the assessments of a county so that all the towns of the county may bear the burden of taxation equally, or to equalize the assessments of a State so that each county may bear its proper portion of the burden. In the latter case it is called the State board of equalization. The authority given by statute must be strictly pursued, and when the statute directs an equalization among congressional districts, such a board cannot equalize among the several counties of the State.1

In California the State board of equalization was directed to prescribe rules and regulations to govern supervisors when equalizing assessments in a county, and to govern assessors in the performance of

1 Hamilton v. State, 3 Ind. 452.

their duties when assessing property, and also to add to, or deduct from the value of real and personal property such per centum as should be sufficient to raise or reduce the valuation to the full cash value, and to fix the rate of State taxation, making allowance for delinquency in the collection of taxes. The power vested in them to fix the rate of taxation is a delegation of legislative power, and as such unconstitutional. So the power to add to or deduct from the assessed value of property violates the Constitution of California, which provides for the assessment of property by assessors elected by the people of the districts for which they act.1 The other powers conferred were unconstitutional.2

Where there is no constitutional provision on the subject, the State board of equalization may be vested with the power of assessing property which would otherwise be assessed by the local assessors, as in Missouri, where they were directed to ascertain the value of all railroad property in the limits of any city, and transmit to the auditor the amount fixed by them as the assessment in favor of that city, exclusive of all action by other officers, State or municipal. Such an act was held to be valid, and to repeal a former act giving the city of St. Joseph power to make a like assessment.3

The manner in which the assessment is equalized is different in different States. In Iowa, New Jersey, Illinois and Ohio, the board add to or deduct from the aggregate valuation of property in the roll such per centum as will raise or reduce it to the proper valuation. Such valuations are made upon the knowledge of the board, and not upon evidence adduced, and their decision is not subject to review by a higher tribunal.

The boards of equalization for counties, are generally composed of some local officers of the county, often the supervisors of the county, and have not only the authority to equalize by adding a percentage, but they are also vested with the power to review and correct the assessments made by the assessors, upon evidence adduced as to particular parcels of land, or particular pieces of property. Those local tribunals which have authority to review and correct the roll, acting under a special authority, must pursue it strictly. If the statute fixes

1 Houghton v. Austin, 47 Cal. 646; People v. Placerville, 34 Cal. 636. * Savings Bank v. Austin, 46 Cal. 415.

'State v. Severance, 55 Mo. 378.

Smith v. Supervisors, 30 Iowa, 531; State v. Roe, 36 N. J. Law, 86; People v. Nichols, 49 Ill. 517; State v. Allen, 43 Ill. 456; Hamilton v. Dempsey, 20 Ohio, 168. So also in New York, Tallmadge v. Supervisors of Rensselaer Co. 21 Barb. 611, 612; Bellinger v. Gray, 51 N. Y. 613.

5 Pacific R. R. Co. v. Cass Co. 53 Mo. 17.

2

the time at which they are to meet, they are not to meet at any other time.1 They are tribunals vested with special powers, and their record must show all facts necessary to give jurisdiction. When an application is made by one person for correction of an error, they cannot go beyond the application and declare the whole roll illegal and strike it out. Nor can they assess land or other property omitted from the roll by the assessors. Their function is to increase or diminish the valuations, or correct the errors as to property on the list. They cannot perform the duties of assessors by adding to the roll property left off by the assessors. While they have the power to correct the valuation of particular individuals on application, they cannot increase the valuation on the property of a tax-payer without notice to him. He is entitled to be heard before the burden of taxation is increased. A notice made to one who is tenant of the taxpayer, and not his agent, is not sufficient; it should be to him personally, or to his agent, or at his dwelling-house. All the requirements of the statute must be complied with to give these tribunals jurisdiction. In California, the valuation of particular parcels of land or other property, cannot be raised without the filing of a complaint, and although the party appears before the board in pursuance of an order to show cause why the valuation should not be raised, such an appearance is not a waiver of the right to have the complaint filed, and that is still necessary to give jurisdiction. In that State, after the supervisors as a board of equalization and review have corrected the roll, it is the duty of the county auditor to make out a roll containing the alterations, to be delivered to the collector. It has been claimed that the auditor, in making out this corrected roll, must follow literally the action of the supervisors, but the courts have decided that while he is not to review the action of the supervisors and correct their errors, yet if the supervisors act without authority, as in canceling an assessment, their act is void for want of jurisdiction, and such acts he is to disregard, and he will be compelled to give the collector a roll with such alterations as the supervisors had authority to make."

1 Sioux City & Pacific R. R. Co. v. Washington Co. 3 Neb. 30.

State v. Board of Com'rs of Washoe Co. 5 Nev. 317; State v. Swift, 6 Nev. 95; State v. Ormsby, 7 Nev. 392.

'Pacific R. R. Co. v. Cass Co. 53 Mo. 17; Mumford v. Pleasant Grove, &c. Turnpike Co. 42 Ind. 293; Pavy v. Greenough, &c. Turnpike Co. Id. 400.

Com'rs v. Long, 8 Kansas, 284; State v. Utter, 33 N. J. Law, 183. If the statute merely gives an appeal, the tribunal cannot increase a valuation, but can only reduce it, or refuse relief. Leach v. Bleakley, 34 Vt. 134.

5 State v. Drake, 33 N. J. Law, 194.

People v. Goldtree, 44 Cal. 323.

"People v. Ashbury, 44 Cal. 616; People v. Supervisors of San Francisco, 44 Cal. 613.

The power to review and correct is judicial, and cannot be delegated. A board of supervisors met and determined to add a certain per cent. to the valuation of real estate in a town, and attached their warrant to the roll before it was completed by inserting the increased valuation and extending the amount of the tax, leaving the supervisor of the town to fill up the blank in the columns required by the increased valuation, but their action was not sustained. The determination of the proper changes to be made in the roll is a judicial act. The act of inserting the proper alterations to give them effect is merely clerical, but such insertion must be the result of judicial determination. The roll must be complete when signed. Here the entries were made after signing, and might not have been in accordance with the judicial determination. Where it appears that the assessors have valued rents reserved on leases to non-residents at their full value, while other property in towns of the county is assessed at not over one-third of its value, this is such an inequality as the supervisors have power to correct, and if they refuse they may be compelled to act by mandamus. The council of a village or a town has

no authority to review an assessment and abate the tax of any person, unless it be specially delegated by statute. The general powers of such bodies are legislative, while those of boards of review are quasi judicial. Where the board of equalization has raised the assessment without jurisdiction, the tax-payer must still pay on the value as originally assessed.*

§ 102. Errors, what Tribunal corrects.-Where the assessors have jurisdiction of the person or property assessed, they act judicially, and like the judgments of any other tribunal, their acts are conclusive until reversed in the mode prescribed by law." Whether the error be in the valuation of property at too high a rate, or upon a wrong principle, or, of property which is claimed as exempt, the decision of the assessors cannot be attacked collaterally. The remedy is by appeal to that tribunal provided by statute, and if there be none provided, then it is by certiorari.

1

In Maine such errors are corrected, first by application to the

Bellinger v. Gray, 51 N. Y. 610.

People v. Supervisors, 4 Thomp. & C. (N. Y.) 24; People ex rel. Youmans v. Supervisors of Delaware Co. 47 How. Pr. 24; s. c. reversed 60 N. Y. 381.

3 Sherlock v. Winnetka, 68 Ill. 530.

Los Angeles v. Los Angeles W. W. Co. 49 Cal. 639.

* Fuller v. Gould, 20 Vt. 643; Longfellow v. Quimby, 29 Maine, 196; Davis v. Kalamazoo, 1 Mich. (N. P.) 16; Buffalo & State L. R. R. Co. v. Supervisors of Erie, 48

N. Y. 93.

'Stewart v. Maple, 70 Penn. St. 221; Cunningham v. Mitchell, 67 Penn. St. 98.

assessors to reduce the assessment, when the valuation is too high, or strike it from the roll if it is claimed to be improperly on the roll, and if the assessors do not grant the desired relief, an appeal is allowed to the county commissioners, and thence to the courts of general jurisdiction.1 The first of the cases cited was one of over-valuation, the second a case of highway tax which was paid, but was assessed again for the second year, and the third was a case in which land had been irregularly assessed, the tax was paid under protest, and it was sought to be recovered from the town, but the action was not sustained; the remedy was to correct the error on appeal to the county commissioners if the assessors refused to correct it.

In Massachusetts, the remedy for the same class of errors is an application to the assessors for an abatement of the tax, and if refused, then an appeal to the Court of Sessions. But in such cases, the list of the party must be sworn to and brought to the assessors before the tax is assessed, and the statute of 1865, which provided that "this act shall not affect any person who can show a reasonable excuse for not seasonably bringing in said list," was construed not to dispense with the filing of a sworn list as a necessary preliminary to the abatement of the tax. The mistake of a party, however, in giving in property as taxable in one town which was legally taxable in another does not estop him from claiming an abatement of the tax."

So in Pennsylvania, under the act of 1850, the remedy was by appeal from the assessors to the county commissioners, and thence to Court of Common Pleas," and subsequently it was by petition to the Court of Quarter Sessions; and in an action for taxes, where the defense was that the valuation of the property of the tax-payer was too high, it having been raised by the county commissioners at the time for hearing appeals from assessments to $8,875, from the valuation of the assessors, which was $2,510, the court refused to revise the proceedings of the tax officers in a collateral proceeding, saying, that where the power to assess exists, the remedy for error of the officers is an appeal to the tribunal designated by statute.

In New Hampshire the remedy is by petition to the Court of

1 Gilpatrick v. Saco, 57 Maine, 277; Treat v. Orono, 26 Maine, 217; Rogers v. Greenbush, 58 Maine, 390; s. P. Hemingway v. Machias, 33 Maine, 445.

* Osborn v. Danvers, 6 Pick. 98; Bates v. Boston, 5 Cush. 93; Browne v. Boston, 2 Gray, 494; Porter v. Co. Com'rs, 5 Gray, 365; Howe v. Boston, 7 Cush. 273.

3 Charlestown v. Middlesex Co. 101 Mass. 87.

4 Charlestown v. Co. Com'rs, 109 Mass. 270.

Hughes v. Kline, 30 Penn. St. 227. Prior to that act the valuation of county com. missioners was final. Kimber v. Schuylkill, 20 Penn. St. 366; Silver v. Same, Id. 369. Stewart v. Maple, 70 Penn. St. 221; Cunningham v. Mitchell, 67 Penn. St. 78.