R. R. LANDON, PLAINTIFF AND APPELLANT,VS. ALFREDO V. JACINTO, PROVINCIAL TREASURER AND EX-OFFICIO PROVINCIAL ASSESSOR OF CEBU, DEFENDANT AND APPELLANT.

“Haciendero
la computacion de lo que debera devolverse, una vez recucido el
amillaramiento a tres pesos por metro cuadrado, la cantidad resultante
es P1,959.60. En su consecuencia, el Juzgado condena al demandado a
devolver al demandante la suma de P1,959.60. Sin expresa condena de
costas.”

The parties agree as to the following facts:

In
1920, in accordance with the provisions of section 351 of the
Administrative Code, the municipal council of Cebu made and adopted,
and the provincial board of the Province of Cebu duly approved, a
general schedule of values of real property within the municipality of
Cebu (Exhibit A), and that general schedule of values has continued
effective and in force during all of the time from the date of its
adoption down to the present (Stipulation of Facts, Exhibit X).

At the time of the adoption of the said schedule of values, the
plaintiff was the owner of three parcels of land situated in the
municipality of Cebu and designated as lots Nos. 391, 406 and 458 of
the Banilad Friar Lands Estate, situated in the area bounded by Mango
Avenue, Calles Fructuoso Ramos, Norte America, Sanciangko and Juan
Luna, plaintiff’s land being a relatively small portion of that area,
situated near the center thereof, and having a total area of 84,592
square meters. Said parcels of land were unimproved at the time they
were bought by the plaintiff and those still owned by him have no
taxable or income producing improvements on them.

In accordance with the schedule of values adopted, as above stated,
said parcels of land were assessed for taxation at P67,830, or that is
to say, at approximately P0.80 per square meter, and the real property
tax payable thereon was P589.05 per annum, being seven-eighths of one
per cent of the assessed value (paragraphs 3 and 4, Exhibit X).

In 1926, the plaintiff, by a survey, caused the said parcels of land to
be consolidated and subdivided into 103 separate parcels or sub-lots
with a combined area of 84,592 square meters, but without otherwise
improving said parcels of land. In the same year, or the two succeeding
years, the plaintiff disposed of 34 of said lots, leaving to himself 69
of the same, having a total area of 52,089 square meters. The sub-lots
sold by the plaintiff were thereafter declared by, and assessed in the
names of, the new owners under separate tax declarations, and are not
involved in this case (paragraph 4, Exhibit X). The 52,089 square
meters which remained to the plaintiff was, under the schedule of
values adopted and approved according to law (Exhibit A), assessed at
approximately P41,670 and the annual tax payable, at seven-eighths of
one per cent of the assessed value, was P364.61; but on December 27,
1929, the defendant, as provincial assessor, on his own initiative and
entirely without direction or authority from the provincial board or
any other competent official or body, made what he called a “special
assessment” of plaintiff’s land, whereby he assessed the 52,089 square
meters remaining to the plaintiff at slightly over P5 per square meter,
or a total of P260,700, and the defendant as provincial treasurer
required the plaintiff to pay, and the plaintiff did pay on May 29,
1930, under instant protest to avoid penalties or forfeiture, the sum
of P2,262.85 as taxes on said land for the year 1930. The above stated
amount is exclusive of the tax paid without protest by Consorcia Bacay
on one of the sub-lots which had been sold in 1930 to her by the
plaintiff. That is to say, the total amount payable, and paid under the
so called “special assessment” was P2,271.03, but the plaintiff
actually paid under protest only P2,262.85. The amount actually paid by
the plaintiff for 1930 taxes was thus P1,901.24 more than was payable
under the original lawful assessment of all the land that stood in
plaintiff’s name at the beginning of the year 1930. During the year
1930, the plaintiff sold others of said sub-lots, leaving to himself 59
thereof, with a total area of 47,362 square meters, assessed under the
so called “special assessment” at P236,990, on which the tax, at
seven-eighths of one per cent amounted to P2,073.91; and upon demand
made by the defendant as provincial treasurer, and under protest, the
plaintiff paid on May 29, 1931, the sum of P2,059.56, the remainder
having been paid by Ernesto Sarmiento without protest, that being the
tax corresponding to one of the sub-lots sold by the plaintiff to him
during the first part of 1931. Under the original and lawful assessment
of P0.80 per square meter, the 47,362 square meters of land would have
been valued at P37,890 and the tax for the year 1931 should have been
P331.53. Thus, the plaintiff has actually paid, under protest,
P1,728.03 more than was payable under the original and lawful
assessment for all of the land standing in his name at the beginning of
1931 (paragraph 6, Exhibit X).

During the year 1931, the plaintiff, by a subdivision survey,
consolidated and subdivided, but did not otherwise improve, the
remaining lots, and sold some of the subdivided lots, so that at the
end of 1931 he had left 59 parcels or sub-lots with a total area of
36,632 square meters, which under said so called “special assessment”
was valued at P183,300, on which the tax for the year 1932, at
seven-eighths of one per cent, was P1,604.11; and upon demand made by
the defendant as provincial treasurer, and under instant protest, the
plaintiff paid to the defendant, on May 31 and September 29, 1932, the
total sum of P1,515.27 of the amount demanded by the defendant, the
remainder of the amount demanded having been paid without protest by
other persons to whom plaintiff had sold some of the sub-lots during
the year 1932. Under the original and lawful assessment the 36,632
square meters of land would have been valued at P29,300, and the tax
payable for 1932 would have been P256.38. The plaintiff therefore
actually paid for taxes in 1932 P1,258.89 more than he would have had
to pay under the original lawful assessment (paragraph 7, Exhibit X).

To summarize, the plaintiff actually paid to the defendant under
protest, as taxes for the years 1930, 1931 and 1932, the sums of
P1,901.24, P1,728.03 and P1,258.89, or a total of P4,888.16, more than
he would have been required to pay had the values of his land remained
as previously fixed in accordance with the schedule of values (Exhibit
A) adopted and approved in accordance with law, and which was, and
still is, in force and effect.

In rendering the judgment, copied above, the trial court held, in
effect, that the defendant was authorized by law to make the “special
assessment” complained of, but held that the rate and amount of said
special assessment were excessive and reduced the rate from P5 to P3
per square meter and ordered the defendant, as provincial treasurer, to
refund to the plaintiff the sum of P1,959.60.

The plaintiff contends that the trial court erred (1) in holding
that the defendant had the legal right to make a “special assessment”
of plaintiff’s property and in failing to find and hold that the
“special assessment” of plaintiff’s property made by the defendant on
December 27,1929, was unlawful and void ab initio, for lack
of power and authority on the part of the defendant to make the same;
(2) in undertaking to assess, or to fix the assessment, of plaintiff’s
land at a rate different from that already fixed in accordance with the
schedule of values adopted and approved according to law and (3) in
failing to render judgment in favor of the plaintiff and against the
defendant, as provincial treasurer, for the full amount of the
difference between the total amount actually paid by the plaintiff as
taxes for the years 1930, 1931 and 1932 and the amount he should have
been required to pay under the assessment already made in accordance
with the schedule of values adopted and approved according to law.

The defendant contends that the trial court erred (1) in overruling
the demurrer filed by the defendant-appellant on July 14, 1932, and (2)
in reducing the re-assessment made by the defendant-appellant from P5
to P3 per square meter.

The procedure for the assessment of real property values for the
purpose of taxation is to be found in section 3 of the Assessment Law,
sections 350, 351 and 353 of the Administrative Code. These sections
have been amended and embodied in Act No. 3995 of the Philippine
Legislature, but these amendments do not materially affect the
questions raised in this case. The above mentioned sections read as
follows:

“SEC. 350. General revision of property valuations.—
When directed by the provincial board the provincial assessor shall
effect a general revision of the valuations of the real property in his
province or any municipality thereof and shall make a new, or revised,
assessment of the same according to law. No such general revision of
assessment shall be made with greater frequency than once in two years.

“SEC. 351. Preparation of general schedules of values.—
Prior to directing the provincial assessor to proceed to a general
revision of the assessments in any province or municipality, the
provincial board shall require the municpal council of each
municipality in which such revision is to be effected to prepare, in
such form and detail as shall be prescribed by the Chief of the
Executive Bureau, a general schedule of the values of the different
classes of land for its municipality, which shall be forwarded to the
provincial board for approval and such schedule, when approved by the
provincial board, shall serve the assessor as basis for the valuation
and assessment. Should the provincial board disapprove said schedule
because it does not find it impartial, just, and equitable with respect
to the other municipalities of the province, it shall return the same
to the municipal council with its amendments, and if such amendments
are not accepted by the municipal council, the latter shall forward
them, with its arguments, in appeal to the Chief of the Executive
Bureau, within thirty days after receipt thereof. If said term shall
lapse without an appeal having been made, the schedule as amended by
the provincial board shall govern. The decision of the Chief of the
Executive Bureau, approved by the Department Head, shall be final.”

“SEC. 353. Amending schedules of values.—For
the correction of errors or inequalities in any schedule of values, the
provincial board may, at any time, require the proper municipal council
to prepare an amendment designed to remedy such errors or inequalities.
Such amendments shall be subject to the same conditions as to
preparation, modification, and appeal as general schedules.”

The principle governing valuations and assessments is laid down in section 355, as follows:

“SEC. 355. Principle governing valiiations and assessments.—All
real property subject to taxation under the provisions of this chapter
shall be valued and assessed for taxation at its true and full value in
accordance with the schedule of values in force in the municipality
wherein it is situated. So far as properly applicable such schedule
shall be controlling; but where the property to be assessed is of a
kind not classified in the schedule or of a kind for which a value is
not therein fixed, it shall be assessed at its full and true value,
independently of such schedule.”

The defendant attempts to justify his action in subjecting
plaintiff’s land to a special assessment by alleging that he proceeded
in accordance with sections 349 and 355, the latter quoted above, of
the Administrative Code. The pertinent part of section 349 reads:

“SEC. 349. Authority vested in provincial assessor.—In
the performance of the duties devolving upon the provincial assessor,
he shall be authorized from time to time as occasion may require, and
subject to the provisions of this chapter and of any lawful regulations
pursuant thereto:

* * * * * * *

“(e) To cancel, raise, or lower, as the
case may require, the assessment of any parcel or item of real property
in any municipality or of the property of any owner or owners therein
whenever it appears that the existing assessment, whether originally
proper or not, does not conform to the requirements of law.

“In the exercise of this power he shall eliminate from the list of
taxable property all property which, being exempt, has been improperly
included in the same; shall decrease the assessment where property
previously assessed has suffered a permanent loss of value by reason of
storm, flood, fire, or other casualty; and shall increase the
assessment where taxable improvements have been made upon property
subsequent to the last previous assessment.”

Under the foregoing there are three things which the assessor, in
proper cases, may lawfully do in respect to assessments already made,
i. e., he may eliminate property from the list of taxable property, he
may lower the assessment of property, or he may increase the
assessment; but the cases in which he may lawfully do these things are
specifically stated and prescribed. Thus, his authority to increase
assessments already properly made is limited definitely to stated cases
where taxable improvements have been made on land subject to the last
previous assessment. As stated above, no taxable improvements have been
made on the plaintiff’s land in question in this case subsequent to the
last previous assessment.

The defendant’s reliance upon section 355 of the Administrative
Code avails him nothing in this case, because that section authorizes
him to proceed independently of the general schedule of values, as he
has done in this case, only in those cases “where the property to be
assessed is of a kind not classified in the schedule or of a kind for
which a value is not therein fixed.” In this case, it is not alleged
nor was it proven that the plaintiff’s land is of a kind not classified
in the schedule of 1920 or that it is of a kind for which a value is
not therein fixed.

From the admitted facts it is evident that the defendant has
usurped and assumed power and authority which do not pertain to him.

It is probably true that the condition of plaintiff’s property has
undergone changes which have increased its value by reason of the
opening of streets and the making of adjacent public and private
improvements. Even so, the defendant has no authority under the law to
increase the assessment upon said lands unless taxable improvements
have been made thereon. This duty corresponds to the provincial board
and the municipal council, either by a general revision of the schedule
of values under sections 350 and 351, Administrative Code, or by an
amendment of the existing schedule under section 353, and as stated
above the defendant, as provincial assessor, had no lawful authority to
attempt to adjust assessment by a so called “special assessment”. And
such special assessment is therefore null and void ab initio.

The assignments of error of the defendant-appellant are therefore
overruled. The trial court erred in failing to render a judgment in
favor of the plaintiff and against the defendant, as provincial
treasurer, for the full amount of the difference between the total sums
actually paid by the plaintiff as taxes for the years 1930,1931 and
1932, and the total of the amounts he should have been required to pay
under the assessment made in accordance with the schedule of values
adopted and approved in the year 1920. The amount of that difference is
P4,888.16.

The judgment of the trial court is modified and let judgment be
entered in favor of the plaintiff for the sum of P4,888.16, without
costs.

Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.