Marion Manufacturing Co. v. Board of Commissioners

Hoke, C. J. It is conceded by appellant tbat tbe taxes must be collected in accordance with tbe valuation and assessment as existent and as fixed by tbe official board, and tbat unless this can be properly corrected, no recovery can be bad for tbe moneyed demand by reason of tbe taxes heretofore paid. Guano Co. v. New Bern, 172 N. C., p. 260; Pickens v. Comrs., 112 N. C., p. 699; Stanly v. Board of Supervisors, 121 U. S., p. 535. And as to tbe other' relief sought in tbe complaint to compel a reassessment of appellant’s property by defendants as tbe local board of equalization, tbe question is one very largely for tbe Legislature and in this instance is regulated and controlled chiefly by cb. 12, Laws of 1923, making provision for tbe assessment of property in tbe State for purposes of taxation, etc. Tbe statute referred to, in sections one and two constitutes tbe Commissioner of Revenue, tbe Attorney-General and Chairman of tbe Corporation Commission, “Tbe State Board of Assessment,” with all tbe powers and duties prescribed by tbe act. In sec. 3, various duties are imposed and powers conferred upon tbe board, clauses 3 and 4 of this section being as follows: *103 “3. To receive complaints as to property liable to taxation that has not been assessed or of property that has been fraudulently or improperly assessed through error or otherwise, and to investigate the same, and to take such proceedings and to make such orders as will correct the irregularity complained of, if found to exist. “4. The said board or any member thereof may take such action and do such things as may appear necessary and proper to enforce the provisions of this act.” Again, in section 70 of the act referred to, “the boards of commissioners of the counties of the State are constituted a board of equalization with direction to meet in their respective counties on the second Monday in July to revise the tax lists and the valuations reported to them, and sit until the revision is complete. They shall have power to summon and examine witnesses, shall correct the lists of the list takers and assessors as may be right and just, so that the valuation of similar property throughout the county shall be as near uniform as possible, etc.” From a consideration of these and other pertinent provisions of the law, it is clear, in our, opinion, that the State Board of Assessment is given supervisory powers to correct improper assessments on the part of the local boards and that on complaint made in apt time and on notice duly given and on sufficient and proper proof before this State board, plaintiff could have obtained or had full opportunity to obtain the relief he now seeks. This being true, the judgment of his Honor sustaining the demurrer must be upheld, for it is the accepted position that a taxpayer is not allowed to resort to the courts in cases of this character until he has pursued and exhausted the remedies provided before the duly constituted administrative boards having such matters in charge. Gorham v. Mfg. Co., Current Supreme Court Reporter, U. S., pp. 80, 81. First National Bank v. Weld, 264 U. S., p. 450; Farncomb v. Denver, 252 U. S., p. 7. In Gorham’s case, Associate Justice Sanford states the controlling principle as .follows: “We are of opinion that without reference to the constitutional questions, the bill was properly dismissed because of the failure of the company to avail itself of the administrative remedy provided by the statute for the revision and correction of the tax. A taxpayer who does not exhaust the remedy provided before an administrative board to secure the correct assessment of a tax cannot be heard by a judicial tribunal to assert its invalidity.” Our State decisions to the extent they have dealt with the subject are in full approval of the principle, holding that a taxpayer must -not only resort to the remedies that the Legislature has established but that he must do so at the time and in the manner that the statutes and *104 proper regulations provide. R. R. v. Comrs., 188 N. C., p. 265; Wolfenden v. Comrs., 152 N. C., p. 83; Comrs. v. Murphy, 107 N. C., p. 36; Wade v. Comrs., 74 N. C., p. 81. In Murphy’s case, supra, Chief Justice Merrimon, delivering tbe opinion said: “Tbe statutes in respect to revenue and taxation contem-pláte and intend that taxes shall be levied and tbe collection thereof promptly enforced in tbe way and by tbe means and remedies therein prescribed, and no action like tbe present can be employed to enforce collection until tbe statutory remedies shall be exhausted.” Recurring to tbe complaint, it appears from plaintiff’s own aver-ments that be appeared in apt time before tbe local board and procured a reduction of tbe assessment to tbe amount of $130,000.00; that no exception to tbe action .of tbe local board was made at tbe time, and so far as appears, no appeal was taken or asked for, and no formal and sufficient application has ever been made to tbe State Board to have tbe action of tbe local board reviewed or corrected, but tbe present suit is instituted to compel tbe local board to take further action on a matter they bad already considered and passed upon more than twelve months before. True, tbe complaint alleges that “application was made to tbe State Board and that plaintiff was informed that they were without power in tbe premises.” This was evidently no formal application, but was only by way of inquiry, and if proper application to tbe State Board bad been made and refused, tbe plaintiff’s remedy was by mandamus to compel them to act in tbe matter under tbe powers conferred 'by tbe statute. Board of Education v. Comrs., 150 N. C., p. 116. There is no error presented and tbe judgment sustaining tbe demurrer is Affirmed.