Appeal from a judgment granting a peremptory writ of mandamus to the Winston County Board of Equalization directing them "to render a final formal decision of the said Board as to its assessment of valuation of Plaintiff's assessment as Trustee of mineral rights on lands in Winston County."
There is little conflict in the material facts. An agent of appellee assessed its mineral interest in lands in Winston County at $48,200, or forty cents per acre, on December 6, 1961. The Board of Equalization notified appellee in April, 1962, that it had raised the valuation to $120,240 (roughly $1.00 per acre). On May 23, 1962, within the time allowed by statute, appellee filed its protest in writing and the protest was heard by the Board on June 6, 1962. The Board did not change its valuation and adjourned on June 8, 1962.
Appellee did not hear from its protest, and its agent, on July 5, 1962, the last day on which an appeal could be taken, inquired of the Tax Assessor of Winston County what the decision had been, and was informed that the Board had not changed or altered the assessment so the decision must have been against appellee. After looking
Up to this point, all the steps taken were regular. Section 110 requires all appeals from rulings of the Board to be taken within thirty days and provides that the "taxpayer shall file notice of said appeal with the secretary of the board of equalization (the tax assessor) and with clerk of the circuit court, and shall file bond to be filed with and approved by the clerk of the circuit court, conditioned * * *" etc. But the bond was not filed and approved until July 19, 1962, and the bond shows on its face that it supports an appeal taken from the ruling of June 6, 1962.
On October 10, 1962, appellee filed its petition for mandamus, and after a hearing, the trial court granted the writ. The question for decision there and here was whether there was a final or adequate decision on appellee's protest. The trial court thought there was not and issued the writ. This appeal followed.
The right of appeal in tax proceedings is a right conferred by statute and must be exercised in the mode and within the time prescribed by the statute. State v. Ide Cotton Mills, 175 Ala. 539, 57 So. 481; Ex parte State ex rel. Attorney General, 252 Ala. 149, 39 So.2d 669; Dowda v. State, 274 Ala. 124, 145 So.2d 830. Here, the appeal bond required by § 110 was not filed within the thirty days, so the appeal was not perfected and the bond filed on July 19 was not in time. We assume that appellee realized this and it then contended that there was no final or formal decision by the Board, and until there was, there was nothing from which to appeal.
Title 51, § 109, Code 1940, provides:
Appellee insists that its agents could not ascertain that its objections had been overruled by the Board.
The statute does not require that the protesting taxpayer be notified of the decision of the Board of Equalization. Tit. 51, § 107, after providing for the hearing of protests beginning the first Monday in June and continuing for one week, further provides:
In addition, the records in the tax assessor's office showed an undated entry on the back of the protest sheet filed by appellee as follows:
The records also showed the minutes of the Board in which it was stated that the Board had completed the year's work, declared all values final and had adjourned on June 8, 1962.
We hold that the action and decision of the Board was final, became sufficiently formal when the Board adjourned without changing the amount entered on the assessment sheet, and would have supported an appeal had the appeal been perfected within the statutory period when the notice of appeal was filed
Mandamus will not be granted where petitioner has an adequate remedy by appeal. Ex parte Carroll, 272 Ala. 353, 131 So.2d 676, and cases there cited.
The fact that a party has lost the right of appeal by failure to pursue the statutory remedy is not ground for issuing mandamus to compel an annulment of the judgment, Jenkins v. State, 24 Ala.App. 185, 132 So. 437, and mandamus is not available as a substitute for an appeal, Ex parte McElroy, 241 Ala. 554, 4 So.2d 437.
It follows that the trial court erred in granting the peremptory writ of mandamus. The judgment is reversed and one is here rendered dismissing the petition for writ of mandamus.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.