opinion: MOSS, Sheriff, v. GILCHRIST-FORDNEY CO. et al.
  Circuit Court of Appeals, Fifth Circuit.
  March 16, 1928.
  No. 5053.
  1. Taxation <§=470 — Reduction of assessments of real estate by board of supervisors in Mississippi to equalize them with other assessments held legal (Hemingway’s Code Miss. 1927, § 9409 et seq.).
  Under the law of Mississippi (Hemingway’s Code Miss. 1927, § 9409 et seq.), providing for appeal from an assessment of real estate by a board of supervisors to a board of arbitration composed of two members, with power to appoint a third in case of disagreement, and vesting the board of supervisors with power to equalize individual assessments, where on some appeals the arbitrators reduced assessments, while on others involving similar property the appeals failed because the arbitrators could not agree on the assessments or a third arbitrator, as to those the matter stood as though no* appeal had been taken, and the board of supervisors still had power to reduce the assessments, to equalize them with those reduced by the arbitrators.
  2. Courts <§=356(9) — Appellate court may refuse to consider evidence, unless stated in record in simple and condensed form as required hy rules (equity rule 75b).
  If equity rule 75b, requiring evidence to be stated in the record on appeal in “simple and condensed form,” is disregarded, and the evidence set out in full, the court in its discretion may refuse to consider it.
  Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.
  Shit in equity by the Gilchrist-Fordney Company and others against J. H. Moss, Sheriff. Decree for complainants, and defendant appeals.
  Affirmed.
  A. J. McLaurin, of Jackson, Miss. (May, Sanders & McLaurin, of Jackson, Miss., on the brief), for appellant.
  Stone Deavours and Henry Hilbun, both of Laurel, Miss., and T. J. Wills, of Hattiesburg, Miss. (C. S. Street, of Laurel, Miss., on the brief), for appellees.
  Before WALKER, BRYAN, and FOSTER, Circuit Judges.
  FOSTER, Circuit Judge.
  Appellees filed separate bills to enjoin the collection of certain taxes. They admitted owing some $93,-000 in taxes, but allege that appellant, the sheriff and tax collector of Smith county, Mississippi, had illegally demanded an excess of 15 per cent, of taxes and in addition penalties of 10 per cent., and unless restrained would proceed to sell their property. The amount in dispute was deposited in court, and the suits were consolidated for trial. A" master was appointed without objection, and on exception to his report the court affirmed it, and entered judgment for appellees. There is some conflict in the evidence, but only as to Immaterial facts, which we will not discuss. The material facts are these:
  All of the standing pine timber in Smith county, Miss., is owned by seven persons. Three of them, including appellees herein, are owners of what is designated as long straw timber, and the other four are owners of short straw timber. All of the timber was valued the same by the county board of supervisors, but on review, a step necessary to a final assessment, the state tax commission ordered an increase of 25 per cent, on the long straw timber. The board of supervisors protested to the tax commission, as they had the right to do, the ruling was changed, an increase of 15 per cent, on all the timber in the county was ordered, and assessments were made on that basis by the board of supervisors. All of the taxpayers then appealed from this action of the board of supervisors to boards of arbitration provided for by law (Hemingway’s Code Miss. 1927, § 94091 et seq.). A board of arbitration is constituted of one member designated by the tax commission and one by the taxpayer. If they cannot agree, a third member is appointed by the first two, and the decision of the board, however constituted, is final regarding assessments submitted to them. The arbitrators appointed to consider the appeal of the short straw owners agreed, and rejected the 15 per cent, increase ordered by the tax commission, reducing the valuations to the original assessment. The arbitrators appointed to review the long straw assessments could not agree as to the value, nor as to the appointment of the third member.
  Appellees then applied to the board of supervisors to dismiss their appeals to arbitration, an order to that effect was entered, and the board of supervisors, considering there was an overvaluation of appellees’ property, known to be such, then reduced the assessments on the long straw timber to equalize it with the other assessments in the county, taking off the 15 per cent, increase. This reduction became effective February 1, 1926. On that day the taxes due on the reduced assessments were tendered to the sheriff, but he declined to receive them, as he did not have the tax bills made out, but he made no other objection. On February 3, 1926, the sheriff was served with an injunction, sued out by tbe Attorney General of Mississippi, restraining him from accepting the taxes, less tbe 15 per cent, increase ordered by tbe tax commission. Thereafter tbis suit was dismissed by tbe Attorney General, and tbe sheriff so notified, and appellees again sought to pay their taxes, but tbe sheriff declined to receive them. They then offered to pay tbe 15 per cent, increase under protest, but tbis tbe sheriff also declined to accept, unless 10 per cent, penalties were added, on tbe ground that be bad listed tbe taxes as delinquent. All be bad done in tbis regard was to make up a list of tbe taxes in pencil.
  There is no doubt that tbe board of supervisors has tbe authority to equalize assessments within tbe county between individuals, when tbe overvaluation is known to be such, after tbe assessment has been passed on by tbe tax commission. State ex rel. Knox v. Board of Supervisors, 146 Miss. 345, 111 So. 594. It is contended, however, that tbe board was without jurisdiction to dismiss appellees’ appeal to tbe board of arbitration, and that, tbe question of value having been so submitted, there was no other valuation known to be such when tbe reduction was made, because tbe matter was then in controversy.
  In support of tbis contention it is argued that, if tbe board of supervisors could dismiss tbe appeal to arbitration, they could make assessments without regard to tbe superior authority of tbe tax commission. It might be argued with equal force, on tbe other band, that a taxpayer, by resorting to arbitration, might postpone the payment of his taxes indefinitely; so tbe argument has little weight. There is no doubt that appellees bad tbe right to abandon tbe arbitration, when it became apparent that tbe board of arbitration could not be organized so as to function, and it is immaterial bow tbis was brought about. It is apparent in this case that tbe failure of arbitration was through no fault of appellees. 2 R. G. L. 256; 5 C. J. 576. With tbe failure of the arbitration, tbe assessment of tbe 15 per cent, increase was left in effect on all tbe long straw timber, while it bad been reduced to tbe original figures fixed by tbe board of supervisors on the short straw timber, a manifest injustice and inequality of taxation, and, of course, tbe board of supervisors knew that there was an overvaluation of tbe long straw timber.
  Tbe law of Mississippi (section 1951, Hemingway’s Code of 1927) provides for tbe imposition of a penalty of 10 per centum on all taxes collected on real property when and after such property has been listed for advertisement and sale; but it also provides that no penalties shall attach until 30- days after a legal assessment has been approved. Regardless of whether tbe mere making out of a pencil memorandum is a listing of property for advertisement and sale, which would warrant tbe collection of penalties, there was no legal assessment of appellant’s property until February 1, when tbe order of tbe board of supervisors taking off tbe 15 per cent, increase was entered. Prior to that tbe assessment was in abeyanc.e, and not final. Tbe taxes were tendered to the sheriff before 30 days after tbe approval of tbe assessment, and therefore no penalties bad attached.
  There remains a feature of tbe appeal of which we feel constrained to take notice. Tbe testimony taken before tbe master appears in tbe printed'record as it fell from tbe lips of tbe witnesses, and not in condensed narrative form, as required by equity rule 75b. Tbis rule is not to be evaded by agreement of counsel, or an order of tbe District Court.permitting tbe bringing up of all the' evidence in its original form, though tbe rule contemplates tbe inclusion in tbe transcript of some of tbe testimony in the. form of question and answer, in a proper • case. Barber Asphalt Paving Co. v. Standard Asphalt & Rubber Co., 48 S. Ct. 183, 72 L. Ed.-, decided Jan. 3,1928. We have heretofore announced our views as to tbe necessity of observing tbe rule. Roxana Pet. Co. v. Rush (C. C. A.) 295 F. 844; Buckeye Cotton Oil Co. v. Ragland (C. C. A.) 11 F.(2d) 231. In tbe exercise of discretion, we have disregarded tbe violation of tbe rule in tbis ease; but it should be understood that a violation may lead to a refusal to consider tbe evidence improperly brought up and a decision on tbe appeal consistent therewith.
  Tbe judgment of the District Court was right. It is affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama