Reed v. Norman-Breaux Lumber Co. , 149 Miss. 395 ( 1928 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1093, n. 77; Taxation, 37Cyc, p. 988, n. 91; p. 1114, n. 82; p. 1269, n. 42; On power of legislature to authorize reassessment of property omitted from tax list in former year, see 26 R.C.L. 351. This is the second appearance of this cause in this court. The first opinion is reported in 142 Miss. 756, 17 So. 545, wherein the facts, as they bear on questions not discussed herein, will be found with the court's conclusion thereon.

We regard all questions other than the back assessment of the property for taxation concluded by that decision, and by the principles announced in Swayne v. Hattiesburg (Miss.),111 So. 818; Stingily v. City of Jackson, 140 Miss. 19,104 So. 465; Wolford v. Williams, 110 Miss. 637, 70 So. 823; Wheeler Silber v. Bogue Phalia Drainage Dist., 106 Miss. 619, 64 So. 375; Wilkinson v. Gaines, 96 Miss. 688, 51 So. 718. In the former opinion, the court held that the assessment there made was void, because of the failure to comply with the requirements in making the assessment, and remanded the cause.

The court also held that the validating act of the Legislature referred to in said opinion (chapter 225, Laws of 1924), validated the bonds issued under the swamp land district created by the board of supervisors, which were there under attack. This necessarily validated all the proceedings leading up to the bond issue, and in this appeal we shall only deal with the reassessment of the property made by the assessor and board of supervisors.

When the cause was remanded, the county assessor, under section 4277, Code of 1906 (section 6911, Hemingway's Code 1917), assessed the property for former years involved, and reported the same to the board of supervisors, giving notice, as required by section 4278, Code of 1906 (section 6912 of Hemingway's Code 1917). At this hearing, the appellee appeared and contested the back assessment, but the board of supervisors entered an order upon the minutes, reciting all jurisdictional facts, and adjudged the property to be properly assessed. There was no appeal from the order of the board of supervisors approving such assessment. The county tax collector, likewise proceeding under section 4320, Code of 1906, made an assessment of the said property, which was approved by the board of supervisors, and no appeal was taken from that assessment. By section 61, Hemingway's 1927 Code, amending section 81, Code of 1906, appeal from assessment of taxes is provided for, the appeal being to the circuit court of the county, and the court having jurisdiction to try a questionde novo on such appeals and full power to adjudge and determine all questions affecting the validity of such assessment. It was held by this court, in Western Union Tel. Co. v. Kennedy,110 Miss. 73, 69 So. 674, that the chancery court did not have the power to enjoin an assessment under section 533, Code of 1906 (section 304, Hemingway's 1927 Code), where the assessing board had jurisdiction of the subject-matter and person, and no appeal was taken from the assessment by the assessing board. In the opinion in that case, the court said:

"We do not think it is necessary to discuss the question of ownership of the property upon which the assessment was levied, for the reason that this question of fact was threshed out before, and determined by, the Railroad Commission, if the allegations of the bill of complaint are to be taken as true. Looking to the case made by the bill, it appears that the Railroad Commission had under consideration the assessment of the pole line and to whom it should be assessed. . . . The chancery court was without power to grant the injunction, unless it appeared that the tax collector was attempting to collect the taxes levied ``without authority of law.' There can be no question that the Railroad Commission possessed the authority to assess the property and to determine the ownership thereof, and it is settled law of this state that the chancery court has no jurisdiction to enjoin the assessment, unless the case made by the bill of complaint brings it within the terms of section 533, Code 1906. The bill of complaint merely states that the Railroad Commission was wrong in deciding that the pole line was the property of appellant, and we are of opinion that this decision cannot be reviewed by a bill in equity. . . . Railroad Co. v.Adams, 85 Miss. 772, 38 So. 348."

It was held in the case then before the court that appeal bycertiorari was an exclusive remedy of the property owner.

It will be seen from the sections referred to above that the assessor and board of supervisors had the power to back assess for taxes, property which escaped taxation. The assessment made by the board of supervisors was regular in all respects and in conformity to those sections.

It is urged by the appellee that this case is controlled byAdams, State Revenue Agent, v. Luce, 87 Miss. 220, 39 So. 418. That case dealt with the power of the state revenue agent under the Act of 1894, chapter 34, to back assess property. The state revenue agent was a statutory officer with statutory jurisdiction, and the court did not hold that property could not be back assessed which had escaped taxation because listed on a void roll, but merely held that the revenue agent had no authority to make such assessment where the property had in fact been listed and brought to the attention of the taxing authorities. In the case before us, the assessor is a constitutional officer; such office being created by section 135 of the Constitution; and under section 103 of the Constitution, the Legislature is authorized to define the duties of all officers, and especially with reference to those named under section 135. Section 112 of the Constitution provides that taxation shall be equal and uniform throughout the state; that property shall be assessed for taxes under general laws and by uniform rules according to its value. The purpose of this section is to impose the burden of taxation upon all persons and property subject to taxation in an equal degree by uniform methods, except as otherwise provided in the Constitution. Section 181 of the Constitution provides that property of private corporations for pecuniary gain shall be taxed in the same way and to the same extent as the property of individuals. These sections are designed to bring a uniform and equitable system of taxation in listing and assessing property for taxation, and it is clearly not the intent of the Constitution to enable a person to escape taxation permanently, because of escape therefrom in former years. Section 100 of the Constitution bears out the idea that the rights of the state and its subdivisions to assert their claims at any time are not to be released, abridged, or surrendered. There is nothing in the Constitution that forbids the Legislature to back assess property which has escaped taxation, and in this case it has done so through the officer charged by the Constitution with assessing property.

It follows from what we have said that the chancellor should have dismissed the bill and assessed the damages, if any, resulting from the improper suing out of the writ of injunction, and rendered judgment in accordance with section 535, Code 1906 (section 306, Hemingway's 1927 Code). The judgment will therefore be reversed, the bill dismissed, and the cause remanded for assessment of damages in accordance with the above section.

Reversed and remanded.