This is an action by appellant, a taxpayer, to recover of appellee, the tax collector of Jefferson county, a given amount paid him as such tax collector under protest.
Appellant claims that the assessment of its property, or the fixing of the value thereof, was illegal and void, for that the valuation was fixed by the county board of equalization at an excessive amount, and without proper or sufficient notice to appellant of the hearing or meeting at which the valuation was fixed by the board; second, that the meeting of the board at which the valuation of its property was fixed was held at a time not authorized by law, and that the acts of the board at such meeting were on that account void.
The reporter will set out the statement of facts as made by appellant in its brief, by means of which this opinion can be the better understood.
It appears that plaintiff taxpayer did have notice of the proposed increase of the valuation of its property, and appeared in response to the notice. It was not heard, however, by the whole board, but by one member only; and this member acting alone, attempted to fix a valuation, which was agreed to by the taxpayer. The whole board did not agree to this valuation fixed by one member, but fixed the valuation at a different and greater amount, and then notified the taxpayer of its action. The taxpayer denied the board's authority to then so fix a valuation, claiming that the valuation had theretofore been fixed for that year, by one member of the board, which valuation it had accepted; that that act was final and conclusive, and that the board had no power or authority to set aside the former valuation, and fix the latter amount. The taxpayer applied to the circuit court for a writ of mandamus, to compel the county board to annul the last order fixing the higher valuation, and to leave in force the valuation fixed by, one member of the board. The circuit court granted the petition for mandamus, and ordered the writ to issue in accordance with the prayer. The county board appealed to this court, and obtained a reversal of the judgment of the circuit court, this court holding that the valuation fixed by one member of the board was void; but this court declined to decide the question as to the validity of the subsequent order of the full board. See report of that appeal, McLendon v. Empire Mining Co.,199 Ala. 482, 74 So. 937.
That question, the validity of the last order, is now before the court; and we hold that it was not absolutely void, nor even void or erroneous in any sense that would authorize the taxpayer to recover back the amount of taxes paid in accordance with the assessment made under it, or any part thereof. It is true that it is made to appear that the plaintiff may have been misled to its detriment, by the action of the one member of the board who heard its application and fixed the value; but this was the fault of one member only, and that of the taxpayer, as to the law, and not that of the board as a whole. The board might designate one of its members to hear a particular complaint, or to hear or to receive certain evidence; and this is all that appears to have been done by the board as a whole. Even if they could not do this and the taxpayer consented thereto, it would not be heard to complain although the state, county, or municipality might not be bound thereby.
As said on the former appeal, if the board had adopted the valuation fixed by the one member, a different question would have been presented. This the board did not do, but rejected such valuation. Having rejected it, it would have been proper, though not necessary, to issue another notice to the taxpayer, informing it of such rejection, before fixing another valuation. The board did, however, notify the taxpayer to that effect *Page 87 but not until after it had fixed a different valuation. If the taxpayer was not satisfied with this valuation, the statute gave him the right to have it corrected on appeal. This right he failed to invoke, but attacked the action of the full board as absolutely void, and sought to have it so declared on mandamus. It is the case of a taxpayer's mistaking his remedy, and not the case of an attempted denial to him of all remedy to correct the error. Such mistakes as that shown by this record — to which the taxpayer contributed or is a party — do not involve denial of due process of law. Neither the statute in question, nor the action of the board of equalization under it, denied the appellant the due process which the Constitution guarantees. The right to have its property assessed at a given value, rather than the one fixed by the board, if lost to appellant, was so lost — partly, at least — by its own fault in not appraising and in not ascertaining whether or not the board accepted the valuation fixed by one of its members.
The order of the board fixing the valuation was not void because done at a time not fixed by statute for a meeting of the board. It is true, as contended by appellant, that the acts of the board in ascertaining and fixing the value of property for assessment is judicial or quasi judicial, at least; and that its acts and functions are partly judicial and partly administrative; and that in so far as the board acts judicially, it must do so at the time and place, and in the manner, provided by law, and certainly not in violation of the statute; yet this particular statute under which this board acted provided for regular and called sessions, and then provided that, if acts and judgments should be done or rendered at times not authorized, they should not be void on that account.
The original opinion, that first put out by this court, in the case of Espalla v. Mobile County, 76 So. 2,1 was possibly susceptible of the construction which counsel for appellant now puts on it; but that opinion was corrected on a rehearing, to prevent such misleading tendencies. In that opinion it is said:
"Section 82 of the act in question reads as follows:
" 'The failure of the county board of equalization to perform any of its duties at the time prescribed or to complete its duties within the time specified by this act, shall not invalidate any assessment or any act of the board made after the expiration of such time. The duty of the county board of equalization to visit, inspect and examine each piece and parcel of real property in the several counties is directory and a failure to do so shall not invalidate the assessment made by such county board of equalization.' Acts 1915, p. 420. It is plain that this section of the act was intended to provide for a case like the one under consideration, and to prevent the acts of such boards from being held void because done at times not authorized by the statute; but this and all other sections fail to expressly provide that the members shall be paid as if they had held their sessions, or performed the services, at the time fixed by the statute."
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.
1 200 Ala. 410.