THE STATE TAX COMMISSION OF THE STATE OF ARIZONA; STATE BOARD OF EQUALIZATION OF THE STATE OF ARIZONA; E. A. HUGHES, FRANK LUKE and M. A. MURPHY, Members of Said State Tax Commission and Said State Board of Equalization; and the COUNTY OF YAVAPAI, OF THE STATE OF ARIZONA, Appellants,
UNITED VERDE EXTENSION MINING COMPANY, a Corporation, Appellee
On motion for rehearing on appeal from a judgment of the Superior Court of the County of Yavapai. Fred W. Fickett, Judge. Rehearing denied.
For original opinion, see ante, p. 136, 4 P.2d 395.
Mr. K. Berry Peterson, Attorney General, Mr. Charles L. Strouss, Assistant Attorney General, Mr. F. E. Flynn, County Attorney, and Mr. W. E. Patterson, Deputy County Attorney, for Appellants.
Messrs. Cornick & Crable, Messrs. Rice & Mathews and Messrs. Douglas, Armitage & McCann, for Appellee.
Mr. Dudley W. Windes, Deputy County Attorney, Mr. Rouland W. Hill, County Attorney, Mr. William G. Hall, County Attorney, Mr. Frank E. Thomas, County Attorney, Mr. Elbert R. Thurman, County Attorney, Mr. Charles Rogers, County Attorney, Mr. H. L. Russell, County Attorney, Mr. Charles A. Carson, Jr., City Attorney and Mr. James E. Nelson, Assistant City Attorney, Amici Curiae.
[39 Ariz. 332] LOCKWOOD,
Ordinarily, we do not write opinions on motions for rehearing, but, because the original opinion laid down certain rules important for the guidance of the tax-assessing authorities of the state, and because of the apparent failure of counsel for appellants to understand, both what we decided, and why we decided it, we depart from our usual custom.
The precise point in the opinion with which appellants seem to take issue is that we stated that in a suit by a taxpayer to correct an assessment "the trial court is limited in determining the true value to evidence which was in existence at the time the assessment was made. This does not mean, of course, that it can only avail itself of the information actually known to or used by the assessing body, but it must be information which was in existence and relevant, and which could have been used if the assessing body had had knowledge thereof, and a desire to use it, and the result must be a reasonable inference from such existing and relevant evidence only." (See original opinion, ante, p. 136, 4 P.2d 395.) [39 Ariz. 333]
It is urged in the brief on motion for rehearing that we, in the original opinion, based our judgment (a) on an issue not raised or presented in the appeal, and (b) on a rule of evidence which violates all heretofore announced principles of evidence. Were these things true, the motion for rehearing would indeed be well founded, but we think that appellants have entirely misconstrued both the record on appeal and our opinion.
Taking up the first contention, it appears affirmatively from the record that, while no witness presumed to testify that the actual value of the property in question was not at least six million dollars less than the value as fixed by the tax commission, two witnesses did fix a valuation of a little over two million dollars in excess of that finally determined by the trial court, while the other six approximated fairly close to the court's figures. Appellants did not claim for a moment, either in the trial court or in this one, that the valuation fixed by the tax commission was not grossly excessive. Their only contention was that the valuation fixed by the trial court was some two million dollars short of what it should have been, and they based this almost entirely on the testimony of the witnesses Cole and Calkins. The question was then squarely before us as to whether the trial court was required as a matter of law to accept the testimony of the witnesses last named.
We might perhaps have contented ourselves with stating that there was no obligation upon the trial court to accept the testimony of any particular witness for any reason whatever, and that, following the invariable rule of this court, if the testimony of any of the witnesses supported the conclusion reached by the trial court, we are bound thereby. It is, however, the undoubted rule of law that, when a case is tried to the court, even though incompetent evidence be admitted [39 Ariz. 334] without objection, the trial court may disregard, and will be presumed to have disregarded, such evidence in rendering its decision, and it is therefore well within the record and the issues of the case, since appellants based practically their whole argument upon the evidence of Cole and Calkins, for us to point out that the trial court not only could, but should, under the rules of law, have disregarded such evidence. In other words, the argument of appellants is that the court could have accepted the testimony of Cole and Calkins, had it so wished, and we pointed out why it would have been error to have done so. The question is not whether certain evidence was improperly admitted over objection, but whether the court was bound to consider incompetent evidence, even though no objection was made to its admission. The statement of the question indicates the answer.
We come, then, to the more serious question as to whether or not the evidence was incompetent. Counsel for appellants all through this case apparently ignore or fail to interpret properly the language of section 3068, Revised Code of 1928, and we quote it again as follows:
"All taxable property must be assessed at its full cash value. The term 'full cash value,' when used in this chapter, shall mean the price at which property would sell if voluntarily offered for sale by the owner thereof, upon such terms as such property is usually sold, and not the price ...