
    ASSESSMENT OF PLATTED PROPERTY ADJACENT TO CITY OR TOWN.
    Common Pleas Court of Montgomery County.
    Wilbur C. Wampler et al v. Charles W. Haines et al; and Samuel Wampler v. Charles W. Haines et al.
    
    Decided, July 19, 1916.
    
      Taxation — Assessment of Platted Property — Adjacent to City or Town • — Valuation to be Made by Township Assessor — No Belief Therefrom, in the Absence of Fraudulent Discrimination, When Approved by County Board — Section 5568.
    1. The valuation placed on property by a proper taxing officer or board can not be disturbed in the absence of a showing of fraudulent discrimination or gross inequality, if the assessment has been made in accordance with law.
    2. An addition to a city or town, within the meaning of the statute,includes not only land then or thereafter incorporated, but also platted land lying adjacent to the corporate line, or adjacent to platted property contiguous to the corporate line.
    8. An assessment of such a platted tract is lawfully made where returned by the township assessor and approved by the county board of equalization, and shows a valuation made in the same manner as new structures are valued, having regard to the next preceding decennial valuation so that the valuations may be equalized as nearly as practicable with those of adjacent lots and lands as made at the preceding decennial valuation.
    
      Gottschall & Turner, for plaintiff.
    
      Clement R. Gilmore, Assistant Prosecuting Attorney, contra.
    
      
       Affirmed by the Court of Appeals, January 16, 1917.
    
   Snediker, J.

Tbe two cases which the court is about to decide on their merits have been pending for a long time. General demurrers were filed to the petitions. These demurrers were presented to the court.

As we understand tlie ruling of the court on these demurrers, it was that the objections that these petitions do not show upon their face that a reference had been made to the annual county-board of equalization of Montgomery county, Ohio, of the complaint presented, and that upon such reference the board had rejected the applications of the plaintiffs to have the appraisement of their property reduced, and this rendered these petitions defective.

Upon the sustaining of these demurrers plaintiffs filed in each case an amendment and supplement to the petition, setting up that the assessor in making the increase in valuation had no regard to the next preceding decennial valuation, and that they had filed complaint and made applications for reduction to the annual county board of equalization, and that upon a hearing such applications were rejected, and plaintiffs were denied relief.

Subsequently an answer was filed by the defendants which constitutes, in effect, a general denial of the averments of the petition and of the amendment and supplement to the petition.

Within the last week these cases were submitted to this branch of the court and we now proceed to determine the matters in controversy.

Taking up first the averments of the amendment and supplement to the petition, and the facts found in the agreed statements of fact intended to support the same, and particularly that part of the averments of the amendment and supplement to the petition which relates to the failure of the assessor to have regard to the next preceding valuation of the tracts involved, we feel bound by the Ohio authorities and by the authorities of other states relating to the right of a court -to review the finding of a board of equalization in that regard and in regard to their finding as to the equality of such appraisal.

These are quoted quite liberally in the brief of counsel for the defendants. From Cooley on Taxation this extract is given:

“The courts, either of common law or of equity, are powerless to give relief against the erroneous judgment of assessing bodies, except as they may be specially empowered by law to do so. This principle is applicable to statutory boards of equalization, which are only assessing boards with certain appellate powers, but whose action, if they keep within their jurisdiction, is conclusive, except as otherwise provided by law, although if fraud is charged there may .be a remedy in equity. ’ ’

In Wagoner v. Loomis, 37 O. S., 571, the principle as laid down is as follows:

“As a general rule the decisions of officers and tribunals specially created and charged, in the tax laws, with the duty of valuing property for taxation and equalizing such valuations, are final and conclusive.
“Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty of making such valuations.”

In the case of Hagerty v. Huddleson et al, 60 O. S., 149, the language of Judge Burket in the opinion is as follows:

“The valuation placed upon property by a taxing officer or board within the scope of authority conferred by law, when made in good faith, will be held and regarded by courts as conclusive of the value unless it should appear that there was some gross mistake to the prejudice of the tax-payer.”

Other authorities cited in the brief of counsel for defendant are cases in 10 Cal. App., 185; 124 Ill., 666; 173 Ind., 776; 77 Kas., 349; 52 Mo., 456.

A consideration of these authorities leads 'us to the view that with the action of the board, if the assessment was made according to law by the assessor, we must be satisfied, unless there be fraud, fraudulent discrimination or gross inequality which we do not find from the record to have occurred.

An important question which presents itself is the same question which was submitted heretofore to the court on demurrer, as to whether or not the assessment made by the township assessor was made in other respects in accordance with law.

As we understand the section of the statute under which this appraisement was made by the township assessor was 2797 of the Revised Statutes, which reads as follows:

“Whenever any person, or persons, shall lay out any town or any addition to any town, he or they shall, before the plat thereof is recorded, present the same to the county auditor, who shall cause the assessor of the proper locality to assess and return the true valuation of each lot or parcel of land described in such plat, in the same manner as new structures are valued; and thereupon such lots or parcels shall be entered on the tax list in lieu of the land included therein; but in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots according to such decennial valuation.”

The question which might be made as to the last clause of this section, as we have said, we regard as determined by the finding of the annual county board of equalization of this county.

Plaintiff’s counsel make the point that the territory included in these plats of which a revaluation was made by the assessor, is not a town, or an addition to any town.

In the case of Mitchell & Watson v. Treasurer of Franklin County, 25 O. S., 143, Judge McIlvaine, in his opinion, says (p. 154):

“The terms of the act of 1866, now under consideration, are ‘that whenever any person or persons shall lay out any town, or addition to any city or town in this state, before the plat thereof shall be recorded,’ etc. That the Legislature did not mean that the addition to any town should be such only as was made of territory without its' corporate limits is perfectly clear, for the reason that many towns in this state (within the meaning of the statute) are not incorporated at all. And if no reference was had to the corporate limits of towns, we feel assured that no reference was intended to be made to the corporate limits of cities, although the word ‘ city, ’ in this state, imports a municipal corporation.
“We are of opinion, therefore, that the plat of an addition, either to a city or town, intended by the statute, is an addition to the territory previously laid out into lots, streets, alleys, etc., the plat whereof has been recorder; and not an addition to the territory embraced within the limits of the city or town as prescribed in its charter.”

The first syllabus of this case is as follows:

“The act of April 6, 1866, ‘to provide for the valuation of land in new town plats, or additions thereto (S. S., 762),’ applies to cases where lands within the corporate limits of a city or town are laid out into lots, streets, etc., as well as' to' cases where the lots so laid out are situate without the corporate limits.”

We gather from this syllabus, and from the language of the court in the opinion that by “an addition to any city or town” is not only meant land then or thereafter incorporated, but also such land as, lying adjacent to the corporate line of a town, or adjacent to platted property contiguous to such corporate line, will, by virtue of being platted, constitute an addition thereto.

By an examination of the plat attached to the defendant’s statement of facts, we find that the North Riverdale plat, or, in other words, the two Wampler plats, the assessment of which is here in question, is so adjacent to platted property extending from the south line of the Wampler plats to the north line of the. corporation as to make the Wampler plat an addition to the city of Dayton.

This being true, our opinion is that -this plat comes within the terms of the statute in its provision that when any person shall lay out any addition to any town the auditor shall cause the assessor to assess and return true valuation of each lot or parcel of land described in said plat.

Of course, “it will not be contended by counsel that the word “town” does not include “city.”

Again, counsel for plaintiff contend that the township assessor was not the proper officer to make the assessment. A reading of the statute seems to us to determine that question, for in its very terms it says that “the auditor shall cause the assessor of the proper locality to assess and return the true valuation of each lot or parcel of land described in such plat, ’ ’ etc. It is riot contended by counsel that the assessor who made this appraisement was not the assessor of Harrison township, in which this property is situate.

Assessors of real and personal property have always been chosen in this state presumptively as competent men for the purpose, living in the locality. The intention is that a person who is acquainted with the real estate and with whatever personal property may be within the township, shall make the assessment for the reason that he is better qualified by. such knowledge. The assessor of the proper locality then would be the assessor of the township who would fairly be supposed to know more about the value of the property than the assessor of any other township, or any other assessing officer.

So that, although oftentimes the assessor is not fully up to the standard contemplated by the statute, 'still the construction of the law ought to be thát the proper assessor to assess the real estate in the first instance, or by way of reappraisement, in an event such as here contemplated by the statute, would be the assessor of the particular township in which the property is located.

All of the law with reference to taxation should be read together and a reasonable and proper construction placed upon the language, and not such a construction as would make the clear expression of the Legislature other than the very terms of the statute intend.

The next question made by counsel for plaintiff is as to whether or not the value of the tract platted may be increased as a whole. If the township assessor is the proper officer to make the appraisement, which we have already found, he has only to follow that provision of the section which says he shall ‘ ‘ return the true valuation of each lot or parcel of land described in such plat in the same manner as new structures are valued.” And also that further provision which reads: “But in making such valuation regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots according to such decennial valuation.” If the assessor did this — and the question of determining that fact is, as we have said, for the county board of equalization — then the assessment was properly made; and having found that it was so properly made, as we have before determined, we are bound to declare, in the absence of any fraud, fraudulent discrimination or gross inequality, that it was properly made.

In going over the different plats referred to in the statements of fact and comparing them with these plats, the court necessarily has had some difficulty in determining the question as to whether or not there is any gross inequality. But after a careful consideration of the figures found'in the statements of fact, we have been unable to determine that the plaintiff is entitled to the relief prayed for.

Our opinion is, therefore, that the prayer of the petitions of the plaintiffs in both cases should be denied.  