Moss0 v. Gilchrist-Fordney Co.

FOSTER, Circuit Judge. Appellees filed separate bills to enjoin the collection of certain taxes. They admitted owing some $93,-000 in taxes, but allege that appellant, the sheriff and tax collector of Smith county, Mississippi, had illegally demanded an excess of 15 per cent, of taxes and in addition penalties of 10 per cent., and unless restrained would proceed to sell their property. The amount in dispute was deposited in court, and the suits were consolidated for trial. A" master was appointed without objection, and on exception to his report the court affirmed it, and entered judgment for appellees. There is some conflict in the evidence, but only as to Immaterial facts, which we will not discuss. The material facts are these: All of the standing pine timber in Smith county, Miss., is owned by seven persons. Three of them, including appellees herein, are owners of what is designated as long straw timber, and the other four are owners of short straw timber. All of the timber was valued the same by the county board of supervisors, but on review, a step necessary to a final assessment, the state tax commission ordered an increase of 25 per cent, on the long straw timber. The board of supervisors protested to the tax commission, as they had the right to do, the ruling was changed, an increase of 15 per cent, on all the timber in the county was ordered, and assessments were made on that basis by the board of supervisors. All of the taxpayers then appealed from this action of the board of supervisors to boards of arbitration provided for by law (Hemingway’s Code Miss. 1927, § 94091 et seq.). A board of arbitration is constituted of one member designated by the tax commission and one by the taxpayer. If they cannot agree, a third member is appointed by the first two, and the decision of the board, however constituted, is final regarding assessments submitted to them. The arbitrators appointed to consider the appeal of the short straw owners agreed, and rejected the 15 per cent, increase ordered by the tax commission, reducing the valuations to the original assessment. The arbitrators appointed to review the long straw assessments could not agree as to the value, nor as to the appointment of the third member. Appellees then applied to the board of supervisors to dismiss their appeals to arbitration, an order to that effect was entered, and the board of supervisors, considering there was an overvaluation of appellees’ property, known to be such, then reduced the assessments on the long straw timber to equalize it with the other assessments in the county, taking off the 15 per cent, increase. This reduction became effective February 1, 1926. On that day the taxes due on the reduced assessments were tendered to the sheriff, but he declined to receive them, as he did not have the tax bills made out, but he made no other objection. On February 3, 1926, the sheriff was served with an injunc [932] tion, sued out by tbe Attorney General of Mississippi, restraining him from accepting the taxes, less tbe 15 per cent, increase ordered by tbe tax commission. Thereafter tbis suit was dismissed by tbe Attorney General, and tbe sheriff so notified, and appellees again sought to pay their taxes, but tbe sheriff declined to receive them. They then offered to pay tbe 15 per cent, increase under protest, but tbis tbe sheriff also declined to accept, unless 10 per cent, penalties were added, on tbe ground that be bad listed tbe taxes as delinquent. All be bad done in tbis regard was to make up a list of tbe taxes in pencil. There is no doubt that tbe board of supervisors has tbe authority to equalize assessments within tbe county between individuals, when tbe overvaluation is known to be such, after tbe assessment has been passed on by tbe tax commission. State ex rel. Knox v. Board of Supervisors, 146 Miss. 345, 111 So. 594. It is contended, however, that tbe board was without jurisdiction to dismiss appellees’ appeal to tbe board of arbitration, and that, tbe question of value having been so submitted, there was no other valuation known to be such when tbe reduction was made, because tbe matter was then in controversy. In support of tbis contention it is argued that, if tbe board of supervisors could dismiss tbe appeal to arbitration, they could make assessments without regard to tbe superior authority of tbe tax commission. It might be argued with equal force, on tbe other band, that a taxpayer, by resorting to arbitration, might postpone the payment of his taxes indefinitely; so tbe argument has little weight. There is no doubt that appellees bad tbe right to abandon tbe arbitration, when it became apparent that tbe board of arbitration could not be organized so as to function, and it is immaterial bow tbis was brought about. It is apparent in this case that tbe failure of arbitration was through no fault of appellees. 2 R. G. L. 256; 5 C. J. 576. With tbe failure of the arbitration, tbe assessment of tbe 15 per cent, increase was left in effect on all tbe long straw timber, while it bad been reduced to tbe original figures fixed by tbe board of supervisors on the short straw timber, a manifest injustice and inequality of taxation, and, of course, tbe board of supervisors knew that there was an overvaluation of tbe long straw timber. Tbe law of Mississippi (section 1951, Hemingway’s Code of 1927) provides for tbe imposition of a penalty of 10 per centum on all taxes collected on real property when and after such property has been listed for advertisement and sale; but it also provides that no penalties shall attach until 30- days after a legal assessment has been approved. Regardless of whether tbe mere making out of a pencil memorandum is a listing of property for advertisement and sale, which would warrant tbe collection of penalties, there was no legal assessment of appellant’s property until February 1, when tbe order of tbe board of supervisors taking off tbe 15 per cent, increase was entered. Prior to that tbe assessment was in abeyanc.e, and not final. Tbe taxes were tendered to the sheriff before 30 days after tbe approval of tbe assessment, and therefore no penalties bad attached. There remains a feature of tbe appeal of which we feel constrained to take notice. Tbe testimony taken before tbe master appears in tbe printed'record as it fell from tbe lips of tbe witnesses, and not in condensed narrative form, as required by equity rule 75b. Tbis rule is not to be evaded by agreement of counsel, or an order of tbe District Court.permitting tbe bringing up of all the' evidence in its original form, though tbe rule contemplates tbe inclusion in tbe transcript of some of tbe testimony in the. form of question and answer, in a proper • case. Barber Asphalt Paving Co. v. Standard Asphalt & Rubber Co., 48 S. Ct. 183, 72 L. Ed.-, decided Jan. 3,1928. We have heretofore announced our views as to tbe necessity of observing tbe rule. Roxana Pet. Co. v. Rush (C. C. A.) 295 F. 844; Buckeye Cotton Oil Co. v. Ragland (C. C. A.) 11 F.(2d) 231. In tbe exercise of discretion, we have disregarded tbe violation of tbe rule in tbis ease; but it should be understood that a violation may lead to a refusal to consider tbe evidence improperly brought up and a decision on tbe appeal consistent therewith. Tbe judgment of the District Court was right. It is affirmed.