State ex rel. Matson v. Laurendine

GARDNER, J. — By this proceeding a resident taxpayer of Mobile county seeks to have the tax assessor of said county required by law to assess to him certain real estate for state and county taxes, a proceeding lacking in direct analogy, so far as the diligence of counsel has been able to disclose. The defense interposed rested upon the proposition that another had previously assessed this property for the same tax year, and the assessor concluded that he was without authority to permit a second assessment, believing the first assessment to have been by the true owner. That it is made the duty of the tax assessor to assess for taxation the property of every citizen is, of course, quite clear, as is also the duty of the citizen liable for taxation to return his property for such assessment. — Acts 1915, p. 400, et seq. For the convenience of the citizen the assessor is required to have printed proper forms for listing property under oath, and the citizen making false return of his property for taxation is guilty of perjury. See Acts 1915, §§ 24, 31-37, 40, 45-; (1) “It is well settled that, where a specific ministerial duty is imposed by law upon an officer, board, or tribunal, with respect to the levy and assessment of taxes, mandamus will lie to compel ' its performance, unless some other adequate remedy is provided. Thus the writ will lie in a proper case to compel the levy of a [315] special tax assessment and valuation of property subject to taxation in the manner required by law.” — 26 Cyc. 320. (2) If the tax assessor in merely listing property for taxation is in the exercise of a ministerial duty imposed by law, it is clear that the petitioner is entitled to his writ. That the assessor in the exercise of this duty is in the performance of the ministerial functions of his office only, and that mandamus is the. proper remedy, appears to be demonstrated by the following cases: State v. Buchanan, 24 W. Va. 362; State v. Herrald, 36 W. Va. 721, 15 S. E. 974; State v. Greybeal, 60 W. Va. 357, 55 S. E. 398; Hyatt v. Allen, 54 Cal. 353; People v. Shearer, 30 Cal. 645. (3) We find no case which warrants the opinion that the assessor in accepting property for tax assessment has imposed upon him the duty or can exercise the right to determine for himself the title of such property and the true ownership as between contesting claimants. This is a matter with which he cannot be concerned. The assessment of property by one in possession claiming ownership may prove of evidential value in the event of litigation, and thus constitute an important right.— Code 1907, § 2830. To deny the petitioner the right to assess his property would be to authorize the tax assessor to pass upon the title to the real estate and himself decide the true ownership. Such an anomalous situation was clearly not contemplated by the legislative department in the establishment of the office of tax assessor. There is nothing in section 2299 of the Code which would justify the action of the assessor in this case. (4) If it be conceded, for the purposes of this case only, that when property is sold for taxes, under said Code provision, and bid in by the state, and not redeemed, but still held by the state, it need not be further assessed, yet such concession would avail nothing, as these provisions are without application to the instant case, this property having been sold by the state. Upon such sale by the state it is clearly the assessor’s duty to enter the property on his lists for assessment. — Gen. Acts 1915, p. 481, § 255. We therefore entertain the view that the petitioner, in possession of the property, claiming ownership under color of title (and we, of course, confine the decision to the situation thus presented), is clearly entitled, so far as the state is concerned, to have such property listed as assessed to him for taxation, and the assessor was without justification in denying him this privi [316] lege. Petitioner having a clear legal right and no other remedy by which it can be enforced, mandamus is clearly the proper proceeding (Board of Shelby County v. Farson, 197 Ala. 375, 72 South. 613), and it results that the judgment of the court below will be reversed, and one here rendered granting the relief prayed. ■ Reversed and rendered. Mayfield, Sayre, Somerville, and Thomas, JJ., concur.