This proceeding was initiated by Pulaski County, the City of Little Rock, and the Little Rock School District (all hereinafter called "petitioners"), in order to obtain larger assessed valuation of the banks hereinafter listed (appellees here). The success of the proceedings would *Page 135 have allowed more revenue for these governmental subdivisions, and resulted in greater tax payments by the banks. Here are the assessments made by the banks, and adopted by the county assessor:
Commercial National Bank ........ $370,841.00 Peoples National Bank ........... 112,981.31 W. B. Worthen Co ................ 201,300.00 Union National Bank ............. 267,432.41 Twin City Bank .................. 44,795.00
Here are the assessments asked by the petitioners, first adopted, but later abandoned by the county assessor:
Commercial National Bank ........ $651,882.00 Peoples National Bank ........... 207,164.63 W. B. Worthen Co. ............... 592,596.25 Union National Bank ............. 558,504.55 Twin City Bank .................. 96,239.00
Here are the assessments made by the Board of Equalization when the assessments reached that body:
Commercial National Bank ........ $332,190.00 Peoples National Bank ........... 112,981.31 W. B. Worthen Co. ............... 297,435.06 Union National Bank ............. 267,432.41 Twin City Bank .................. 44,795.00
It will be observed that the Board of Equalization lowered the assessment of the Commercial National Bank, and raised the assessment of W. B. Worthen Co., and left the other three assessments unchanged. The petitioners went to the county court for relief. From an adverse holding, they appealed to the circuit court.
In the circuit court, the banks filed a motion to dismiss: raising, for the first time, the question about 13671, Pope's Digest, not providing for notice or summons to be issued out of the county court and served on the banks. I call particular attention to the fact that no such motion was made in the county court, and no objection of any kind was there made to the regularity of the appeal. The order of the county court recites that the banks appeared by their respective attorneys. *Page 136
The majority opinion of this court is sustaining this motion to dismiss, on the theory that 13671, Pope's Digest, did not provide for notice to be Served on the property owner when any petitioner went from the Board of Equalization to the circuit court. There are two answers to the contention made by the banks, and sustained by the majority opinion, and these answers are: (1) the statute provides for notice, and (2) the banks appeared in the county court, and thus waived any question of notice. We discuss these points.
I. The Statute Provides for Notice. The majority opinion quotes 13671 in extenso, and then says of that statute: "But the statute makes no provision whatever for any sort of notice to the property owner whose assessment is thus attacked."
I submit that the statute — inferentially, at least — provides for notice, because it says that after the appeal is lodged in the county court, the clerk of the court "shall summon the members of the board and issue such process as said assessor, board, or county judge may request for witnesses and evidences of amount and value of property . . ." It is hard to believe that the county judge, would hear the matter in the absence of the property owner affected, particularly when the statute says the county judge may request evidences of amount and value of the property. It seems clear to me that the county judge, under this section, should and would have the property owner before him. Certainly, that is what happened here, for the judgment of the county court — as previously noted — shows that the banks appeared in the county court. It is carrying those mysterious words "due process" past the ultimate to hold — as the majority does here — that there was no provision for notice, when the statute says that the county judge has a right to request the witnesses and evidences of amount and value of the property. It seems clear to me that this statutory provision satisfies the requirement of due process.
II. The Banks Appeared in the County Court, and thus Waived Any Question of Notice. Section 28 of Art. VII of the Constitution of Arkansas says: *Page 137
"The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, . . ."
This proceeding by the petitioners in the county court certainly related to taxes. The county court is a judicial court. When the petitioners filed the appeal in the county court, the banks could have entered — and in fact did enter — their appearance. They contested the matter in the county court on its merits, and thereby lost any right to raise any question of any defect in notice. The only purpose of notice is to supply the absence of knowledge. When the banks knew of the proceedings in the county court, and entered their appearance and contested the assessments, they waived any notice.
If a case is filed in a court (and I have pointed out that the county court is a judicial court), and the opposing party appears and defends the case on its merits without raising any question of summons, then such a defense constitutes a waiver of process and service thereof. Cases so holding are collected in West's Arkansas Digest, "Appearance," 20. For cases concerning the effect of failure to object to informality of appeal, see West's Arkansas Digest, "Appeal and Error," 228. I contend that it was too late for the banks, on appeal in the circuit court, to raise for the first time a question that they had not raised in the county court, and a question such as this question of notice — which could be waived by appearance.
The matter of the assessment of personal property in Arkansas is very serious; and I regret to see the majority of this court dispose of this case on a procedural point rather than on the merits. The real question is, whether the assessments as offered by the banks were correct, or whether the assessments as contended for by the petitioners were correct. It would be far better, as I see it, for the case to be decided on its merits, so that taxpayers and assessing officials would know exactly how property should be assessed. M. mind is open on the question of which side — that is, the banks or the petitioners — is correct on the formula for allowing *Page 138 valuation and assessment. I dissent because the affirmance of this case is on a procedural point, and the merits of the case have not been considered.