Mississippi Supreme Court, 1945

Lavecchia v. Mayor, of Vicksburg

Mississippi Supreme Court · Decided February 12, 1945 · Eoberds

20 So. 2d 831; 197 Miss. 860; 1945 Miss. LEXIS 317 (Southern Reporter, Second Series)

Counsel

Brunini Brunini, of Vicksburg, for appellant. Appellant contends that she had no notice whatever, as required by the charter of the City of Vicksburg, of the raise of her assessment by the city assessor. The city assessor himself raised the assessment from that given in by the appellant, $65,000, to $85,500. No notice was given her of that act of the assessor. That was a condition precedent to further action and the city fathers ignored that and gave notice that the Committee of the Whole had made a raise, when it had not done so, and that she should appear not to answer the raise made by the assessor but the raise recommended by the Committee of the Whole. Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114 , 119, 4 So.2d 717 ; Alabama V.R. Co. v. Brennan,; Laws of 1884, p. 442; Charter of the City of Vicksburg, Sec. 30, as amended January 3, 1928. The court held, by the instructions that it gave and refused, that the appellant was not entitled to have her assessment on her property at two-thirds of its true cash market value as of January 1, 1941. It is our contention that the two-thirds of the fair cash market value was applicable to the case at bar in order to secure equality. Mr. Shanahan, the city assessor, testified as follows: "Q. Mr. Shanahan, the City of Vicksburg in 1941, that is, yourself, as well as the Mayor and Aldermen, generally assessed property at a valuation of two-thirds of its value. Is that true? A. Yes, sir, about that. Q. That is what was the rule? A. Yes, sir. Q. Just tell us how you make your assessment; the basis of your assessment? A. Well, the law says we can assess at one hundred percent, but we assess around about two-thirds of its true market value, and the reason we don't assess it at one hundred percent is that your depreciated value would offset your real value, as the property depreciates. Q. The fact is, you do put the assessment in at two-thirds of the true value? A. Yes, sir." The foregoing testimony is uncontradicted. May we ask, therefore, was not Mrs. Mary Hilda Lavecchia entitled to have her property assessed at two-thirds of its value? Section 112 of the State Constitution, as construed by the Supreme Court of the United States and of this state, says that where there is a systematic scheme by the officials of the state to assess property for taxes generally below the true value, a taxpayer whose propty is assessed at full value is thereby deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Federal Constitution. Stewart v. Mayor and Aldermen of the City of Vicksburg, supra; Knox v. Southern Paper Co., 143 Miss. 870 , 108 So. 288 . Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. Constitution of 1890, Sec. 112. It shall be the duty of each person fixing the value of his property to estimate the same at its cash value at the time of valuation, and not what it might sell for at a forced sale, but what he would be willing and would expect to accept for it if he were disposed to sell it. Code of 1930, Sec. 3135. All property of every kind within the City of Vicksburg "shall be assessed and listed for taxation at the fair and full worth and market value of the same." Charter of the City of Vicksburg, Sec. 31. Section 31 excludes the replacement value or reproduction value. It excludes sentimental value. It excludes credit price value. It excludes every other value than the fair and full worth and cash market value of the property. The only evidence in this case shows that appellant gave in for assessment her property for $65,000 and there is no testimony in this case that shows the true cash market value of the property to have been in excess of that figure. No parcel of real property and no piece of personal property shall be assessed at more than its actual value when the owner or other party legally bound to pay the ad valorem taxes thereon has shown in any manner provided by law, as the owner has done here, that the assessment or proposed assessment is at a sum in excess of actual value and how much the excess is, and this regardless of what any board or commission or other assessing authority may attempt to the contrary. Knox v. Southern Paper Co., supra; Gloster Compress Trading Co. v. Town of Gloster, 115 Miss. 578 , 76 So. 550; Stuart v. Board of Supervisors, 195 Miss. 1 , 11 So.2d 212 ; Adams, State Revenue Agent, v. Tonella,, 84 So. 449; 61 C.J. 848; 37 Cyc. 760. The court granted appellee the following instruction: "The Court instructs the Jury for the City of Vicksburg that if you find your verdict in favor of the City of Vicksburg, the form of your verdict may be, "We, the Jury, find for the City of Vicksburg, and fix the assessment at $85,500.'" This is manifestly wrong. Appellant had the burden of establishing that her assessment of $65,000 was the true cash market value of the property, and not less than and not more than two-thirds of its true cash market value. In other words, if appellant failed even by one cent of carrying the burden, the appellant was the defeated party, and the verdict necessarily would be in favor of the City of Vicksburg. William Atkinson Bacot Co. v. Board of Sup'rs of Pike County, 73 Miss. 348 , 18 So. 924. This is in hopeless conflict with an instruction given appellant, which told the jury that it must fix the assessment at an amount not in excess of its true full worth and market value, and at no more than its true full worth and market value as of January 1, 1941. From the foregoing, the vice of the instruction is readily apparent. The jury was bound, on finding for the city, to fix the amount at $85,500. Appellant's testimony, with no contradiction on the part of the city, showed that the true cash market value of the property was less than $65,000 and this too without any deviation from the systematic two-thirds valuation employed by the city as testified to by the city assessor and uncontradicted. If the jury was of the opinion that the assessment should have been $66,000, that would have been a finding for the city, and still the jury had to bring in its verdict under the foregoing instruction for $85,500. R.M. Kelly and Vollor Teller, all of Vicksburg, for appellees. These very contentions, as to the 1941 assessment of appellee, have already been specifically presented to this Court. Stewart v. Mayor and Aldermen of the City of Vicksburg, 195 Miss. 189 , 13 So.2d 40 ; City of Vicksburg v. Melsheimer, 183 Miss. 517 , 184 So. 68 . The only hearing contemplated by the charter of the City of Vicksburg is a hearing by the mayor and aldermen either in the event the assessor recommended the raise and the mayor and aldermen adopted it, or in the event the raise was made by the mayor and aldermen of its own motion; and it is undisputed and very clear that the mayor and aldermen under the city charter have the power to finally pass upon, fix and equalize the assessment upon notice to the property owner. The mayor and aldermen, constituted as the only body to hear protest whether the change over the taxpayer's return was made by it of its own motion or by it concurring in a recommendation of the assessor, did give notice to this appellant, which notice had the effect contemplated, and, in that appellant desired to protest, provoked a written protest and resulted in a special hearing being accorded to appellant — the record affirmatively disclosing that appellant was present at this hearing with her counsel. The notice was sufficient. Appellant's property was assessed in proportion to its value on a basis of equality and uniformity. The equality of an assessment in the case of an appeal from a city assessment is the equality of the specific property with the general assessment made over the city as a whole, and where the property is not assessed at a greater rate than the general assessment over the city and is not assessed beyond its true value, the assessment will be affirmed. Redmond v. City of Jackson, 143 Miss. 114 , 108 So. 444 . The instructions, in cases of this character, should be confined to requiring the jury to first find the assessment equal and uniform (in all cases where that issue is properly presented), and secondly, and in all cases, to find that the property is not assessed beyond its true value. The city's instructions met these tests. Stuart v. Board of Supervisors, 195 Miss. 1 , 11 So.2d 212 ; Knox v. Southern Paper Co., 143 Miss. 870 , 108 So. 288 . The evidence submitted on behalf of the appellee clearly upheld the assessment both from the standpoint of equality and uniformity and from the standpoint that the property was not assessed beyond its true value, and the issue thereasto being properly submitted to a jury for decision and the verdict of the jury being sustained by the credible evidence, that verdict, and the judgment based thereon, should be upheld. Appellant complains of the instruction given on behalf of appellee, couched in the following language: "The Court instructs the Jury for the City of Vicksburg: That if you find your verdict in favor of the City of Vicksburg, the form of your verdict may be: `We, the Jury, find for the City of Vicksburg and fix the assessment at $85,500.00.'" It is the appellant's contention that this instruction giving to the jury a permissive form for its verdict in the event the jury found for the appellee was erroneous. The appellant says, looking to the case of William Atkinson Bacot Co. v. Board of Sup'rs of Pike County, 73 Miss. 346 , 18 So. 924, that any verdict fixing the assessment in excess of $65,000 would have been a verdict for the city. It is true, on that authority, that had the verdict been for more than appellant submitted her return, even though at a sum less than the city fixed the assessment, then the judgment of the court would have fixed the cost against the appellant. Nothing in the instruction given persuaded or was responsible for the jury fixing the assessment at $85,500. The appellant asked for a form of the verdict instruction and left the amount thereof blank. Appellant also asked for and received an instruction in part is as follows: "Further you are instructed that the assessment on this property must be equal and uniform with the assessments on the other property in the City even though the assessments are on a basis of less than the true full worth and market value, and if you believe from the preponderance of the evidence in this case that the assessment of $85,500.00 on the Mary Hilda Lavecchia property is: (A) In excess of its true full worth and market value; or (B) Not equal and uniform with the assessments fixed by the City on the other properties; or (C) is both in excess of its true full worth and market value and is not equal and uniform, Then you must fix the assessment at an amount not in excess of its true full worth and market value; and Further if you believe from the preponderance of the evidence in this case that an assessment of $65,000 would be an amount equal and uniform with the other assessments or in conformity with its true full worth and market value, then you should render your verdict in that sum." From the instructions the jury was informed that it could fix the amount at any sum it determined. Now the court could not voluntarily instruct the jury unless requested to do so. The appellant had a right to specifically request an instruction specifically pointing out that the jury was authorized to return a verdict in any amount between the figure which appellant submitted and the figure for which the property was assessed by the appellee, and the court below, as aforestated, called this very feature to the attention of counsel for both parties. The appellant elected not to request any such instruction and so did the appellee. That was a matter of strategy on the part of the appellant, and she certainly should not be heard to complain here. Mississippi Power Light Co. v. Merritt, 194 Miss. 794 , 12 So.2d 527 ; Avent v. Tucker, 188 Miss. 207 , 194 So. 596 . Argued orally by John Brunini, for appellant, and by Landman Teller and R.M. Kelly, for appellees.

Opinion of the Court

*868 Eoberds, J.,

delivered tbe opinion of tbe court.

This appeal involves tbe validity of a proceeding increasing tbe value of tbe Milner Hotel property in Vicksburg for municipal tax purposes for tbe year 1941. Mrs. Laveechia, tbe owner, listed tbe property with tbe city tax assessor at a value of $65,000. Tbe assessor reported sucb listing to tbe mayor and aldermen, and recommended an increase in value to $85,500. Tbe mayor and aider-men, by order on tbeir minutes, referred tbis assessment, as well as all others in tbe municipality, to what is called a Committee of tbe Whole for examination, revision and equalization. That committee consists of tbe mayor and tbe two aldermen. Tbe committee, acting by two of its members, approved tbe recommendation of the assessor for tbe increase in value. Tbe mayor and aldermen ordered that notice be, and it was, given by publication to all taxpayers whose property values bad been increased, to appear before tbe mayor and aldermen at a time specified to protest sucb increases if they desired so to do. A special notice was also given Mrs. Laveechia. She, by written protest and in person and by attorney, contested tbe increase. On tbis bearing, tbe mayor and aldermen allowed and approved tbe recommendation of tbe assessor and valued tbe property at $85,500. Mrs. Laveechia appealed to tbe circuit court, where tbe question was tried before a jury upon much evidence on both sides. Tbe jury returned tbe following verdict: “We, tbe Jury, find for tbe City of Vicksburg and fix tbe assessment at $85,-500.00.” From tbis verdict, and tbe judgment entered thereon, Mrs. Laveechia appeals here.

A number of errors are assigned, but we deem it necessary to discuss only three of them.

Tbe trial court granted tbe City of Vicksburg, defendant in tbe court below, tbis instruction: “Tbe Court instructs tbe Jury for tbe City of Vicksburg: That if you find your verdict in favor of tbe City of Vicksburg, tbe form of your verdict may be: ‘We, tbe Jury, find for tbe *869 City of Vicksburg and fix tbe assessment at $85,500.00. ’ ” It will be noted tbat tbe verdict of tbe jury is in tbe language of tbis instruction. Appellant says tbis instruction is erroneous and was necessarily prejudicial to ber. In tbis we tbink sbe is correct. In tbe first place, tbe instruction, wben given, bad inserted into it tbe amount at which tbe jury should value tbe property if it followed that form. It indicated to tbe jury tbat if it found for tbe city, it would name tbe stated sum, and tbat a value in any other amount would not be a verdict for tbe city, whereas a finding of any value in excess of $65,000, although less than $85,500, would have been a verdict for tbe city. William Atkinson & Bacot Company v. Board of Supervisors, 7 3 Miss. 348, 18 So. 924.

Another defect in tbe instruction is in tbe question submitted to tbe jury. Tbe charter of tbe city provides tbat all property within tbe municipality “shall be assessed and listed for taxation at the fair and full worth and market value of tbe same.” Section 112 of tbe Constitution requires tbat: “Taxation shall be uniform and equal throughout tbe state. Property shall be taxed in proportion to its value . . . ” It is undisputed, and, in fact, admitted, in tbis case, tbat for tbe year in question, at least, property in Vicksburg was assessed for municipal tax purpose at two-tbirds of its value. Therefore, applying tbe requirements of tbe charter and of tbe Constitution to tbe admitted facts of tbis case, tbe ques-' tion which should have been submitted to and decided by the jury was what was two-tbirds of tbe fair, full worth and market value of tbe property, such value to be equal and uniform with tbat of other like property in Vicksburg. In other words, it was not tbe duty of tbe jury to expressly find either for tbe city or tbe taxpayer. Its province was to determine tbe taxable value of tbe property under tbe uniform method of ascertaining such value in Vicksburg.

However, it is contended tbat tbe errors in tbis instruction were cured by an instruction granted tbe taxpayer. Tbe writer is inclined to agree with tbis view, but, with *870 out setting- out that instruction and discussing the reasons urged by appellee, it is sufficient that the other members of the Court are of opinion that the errors are not thus cured, and that, the granting of the said instruction to the city is reversible error.

It is earnestly urged by appellant that this case should also be reversed and remanded because the verdict of the jury is against the overwhelming weight of the evidence. The Court is divided on that, which means an affirmance on that question standing alone.

Appellant next contends that the entire proceeding herein is illegal and void because it did not follow the requirements of the charter. The charter provides (amendment of January 1928) that if the owner lists his property for taxes at a sum less than the city assessor believes it to be worth, the assessor shall report such listing to the mayor and aldermen ‘£ at a time to be prescribed by them, with a statement of what he believes to be a reasonable and just taxable value of the said property. The report of the assessor and collector shall be received and considered by the mayor and aldermen at such time and upon such notice to the property owner as may be fixed by ordinance, and upon the hearing by the mayor and aldermen of any protests or objections made by the property owner, the said mayor and aldermen shall fix and determine the proper value of such property and assessment.” The charter further provides that if the property owner names a valuation at a sum less than the mayor and aldermen believe it to be worth, they may of their own motion and without any statement or recommendation from the assessor as to what he believes it to be worth raise the valuation to an amount that in the opinion of the mayor and aldermen is fair, reasonable and just “upon such notice to the owner of the property as may be fixed by an ordinance . . . ” The charter further provides that the mayor and aldermen “shall have the power of finally determining the taxable value *871 of all property in the said city; and shall also have the power and authority to equalize the assessment of all property in said city, and may increase or diminish the value of any such property so that property of the same value shall be assessed for an equal sum.” It will he noted that in this case the mayor and aldermen first referred the assessments to a Committee of the Whole, which committee made a report and recommendation. It was then for the first time that the mayor and aldermen gave notice to taxpayers, fixing the time and place, to protest. In others words, the assessor had made his recommendation of the increase, and the Committee of the Whole had approved it,' and both had been submitted to the mayor and aldermen before notice was directed to be given taxpayers. Appellant says she had the right to have notice that the assessor had recommended an increase in the value of her property before any further action was taken thereon, with the right to appear and contest any further action, either by a committee or by the mayor and aldermen, on such recommendation of the assessor. ’The procedure adopted' here was not in strict accordance with the charter, but a majority of the Court is of opinion that the procedure was a substantial compliance with the charter and the appellant and the other taxpayers were not deprived of any rights; that the opportunity was given, and in the case at bar exercised, to appear before the mayor and aldermen and contest the increase before any final action was taken thereon, and at a time when the question was still open, and the mayor and aldermen had the full right and opportunity to allow or deny the increase, and that this is especially true in view of the above quoted provision to the effect that the mayor and aldermen “may of its own motion and without any statement or recommendation from the assessor raise the valuation to an amount that in their opinion and belief is fair, reasonable and just,” with final power and authority to equalize the assessments and increase or *872 diminish the value of any and all property for taxation purposes,

It is observed, in this connection, that the special notice to appellant informed her of this power of the mayor and aldermen.

While the specific question now under consideration was not raised, and, therefore, not decided, in City of Vicksburg v. Melsheimer, 183 Miss. 517, 184 So. 68, 69, 185 So. 207, or Stewart v. Mayor & Aldermen of Vicksburg, 195 Miss. 189, 13 So. (2d) 40, yet the same method herein adopted for increasing the assessment was followed in both cases, and in the Melsheimer case the Court observed that the work' of reviewing and revising the assessment rolls was preliminary and “preparatory to giving the taxpayers notice of a date when they may appear and be formally heard.” And further that: “The work at those preliminary meetings has no finality as to the taxpayer, — it is no more than to prepare the rolls into what are, in effect, completed proposals by the board in regard to the assessments, as against which proposals the taxpayer has a right to be heard later and before the proposals can become final. The work of preliminary review and revision may properly be termed a mere matter of administrative detail. It is not contemplated, and certainly it is not essential, that the taxpayer is to be heard or is even to be present at those prolonged examinations. As already mentioned, the taxpayer’s time to be present and to be heard is later, after notice has been given him of the day when he will be heard.”

Reversed and remanded.

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