Kuhn Bros. v. Warren County

Mayes, C. J., delivered the opinion of the court. This record shows that appellant was assessed in Warren county on February 1, 1910, with a stock of goods valued at thirty thousand dollars. Subsequently, and on February 12, 1910, all of this stock of goods was destroyed by fire, except to the value of about one thousand dollars. On July 28th following the appellants petitioned the board of supervisors to reduce the assessment from thirty thousand dollars to one thousand dollars, the then value of the goods. The board of supervisors declining to make the requested reduction an appeal was taken to the circuit court. The petition was filed under section 4312, Code 1906, and the bond for the appeal from the board was executed under section 81, Code 1906. The above sections are rescripts of the Code of 1892 on the same subject, and which the court construed in the case of Jennings v. Coahoma County, 79 Miss. 523, 31 South. 107. At the hearing in the circuit court the testimony of appellants proved the destruction of the goods by fire as to all except about one thousand dollars. Testimony was offered on behalf of tile county to proye that, while the goods were destroyed by fire as alleged, appellants had really suffered no loss, because they had collected Msurance on the góods largely in excess of thirty thousand dollars, but the court excluded all testimony offered on tMs line. At the con [883] elusion of the case the court gave a peremptory instruction in favor of the county, from which judgment this appeal is prosecuted. That section 4312, providing that, “in case of destruction or deterioration in value of any real estate by any casualty,” etc., applies to personalty as well as realty, and that the board of supervisors of any county has the power at any time, on satisfactory evidence, to change the assessment on either realty or personalty, so as to reduce the assessment to the true value, is settled by the case of Jennings v. Coahoma County, 79 Miss. 523, 31 South. 107. This case was followed by the re-enactment of the same law, without change, and after this court had so construed it. Therefore the decision in the above case is no longer open for review by this court. In the same case it was also held that an appeal from a board of supervisors, prosecuted by any person feeling himself aggrieved by a decision of the board of supervisors on a proceeding instituted before them under section 4312, should be made under section 81 of the Code of 1906, and not section 80. The court' said that “section 81 applies specifically to appeals relating to taxes, while section 80 applies to all other cases; and if 81 does not apply in this matter, it is a useless provision of the law, and such a result is not to be imputed to the legislature. ’ ’ In the quotation above we have substituted the number of the sections as they appear in the Code of 1906 for the numbers appearing in the opinion, which refers to the numbers as they appear in the Code of 1892; the last Code being in effect at the date the case was decided, but the law in both Codes being the same. Section 4312 gives the board of supervisors power to reduce an assessment to its true value in every ease of destruction or deterioration in value, and in every proper case it is not only their duty so to do, but the reduction may be compelled by resorting to the courts. If this were not true, [884] no appeal would lie from any decision of the board on an application made under section 4312. But, while this is true, it is also true that the board is not without discretion as to whether or not it will or will not grant, the application to reduce, even when it appears as a fact that the property has been destroyed. In this case proof was offered to show that while, as a matter of fact, the goods had been destroyed by fire, yet appellants had suffered no real loss or destruction, because they had collected more than the value of the goods through the medium of an insurance on same. The testimony was excluded by the court, and improperly excluded. Tlie board of supervisors had a right to consider this fact, and it may have been on this account, alone, that it refused to make the reduction, and, if this was the reason, its action was proper. If the goods were fully covered by insurance, the appellants lost nothing, so far as the assessment is concerned, by reason of the fire. The fire merely changed the form of value from goods to money. If the appellants had sold the goods on the 12th of February to a purchaser in the state of Louisiana, and such purchaser had immediately paid cash for the goods and taken them into that state, it would hardly be contended that appellants would, on that account, be entitled to a reduction. If they sold the goods to the insurance company through the medium of the insurance policy, the principle is the same. Section 4312 applies only in a case where the destruction, of the property is followed by actual loss, but not a case where there has been merely change in the form of the value. But when the court excluded all the testimony tending to show that appellants had realized the full value of the goods through the insurance policy, we cannot understand upon what theory a peremptory instruction was granted for the county. With the testimony as to the insurance improperly excluded, there was then left onty the proof of the assessment at thirty thousand dol [885] lars, with the further proof that a fire had destroyed the whole of the goods, except about one thousand dollars worth saved from the fire, thus making a clear case under section 4312. In this attitude of the case a peremptory instruction for appellants would seem to have logically followed. We are bound to reverse this case, and direct that it be proceeded with in accordance with this opinion. We cannot affirm it now, even though it result in the same judgment on a new trial, for the reason that it does not appear whether appellants had any insurance or not, the court having rejected all effort to prove this on the part of the county, and, if there was no insurance, appellants are clearly entitled to the reduction. ■ Reversed and remanded.