Delta & Pine Land Co. v. Adams , 93 Miss. 340 ( 1908 )

Whitfield, C. J.,

delivered the opinion of the court.

The original bill of complaint in this case, filed by the Revenue Agent, contained substantially the following averments: that he had caused the appellant to be back-assessed for taxes for the years from 1889 to 1905, inclusive, due to the state, county of Hinds, and city of Jackson; that said assessments were for solvent credits owned and held by the appellant during said years, and on which no taxes had been paid; that the said assessments were all contested by the appellant, and that the taxes due on said assessments could not be collected by distress or “otherwise,” by reason of appeals and contests made by appellant; that appellant was due about $45,000 of such taxes, and declined to pay anything; that appellant had, originally, a capital stock represented by half a million acres of wild land in this state; that it never had any other capital, and that the appellant had sold all the said lands except 15,000 to 20,000 acres, and distributed the proceeds as dividends among its stockholders ; that the appellant was trying to sell all the remaining lands so as to apportion the proceeds of sale as dividends among the stockholders, so as to place the property and effects beyond the reach of his creditors; that said course on the part of the appellant would render it insolvent before said taxes could be collected, or secured by levy, as required by law, and that thus the state, city and county would be defrauded of their revenues;, and it was further alleged that under sale for taxes it was doubtful if the said remaining lands would bring enough to satisfy the taxes due. The prayer of the said original bill, amongst other things, was for the issuance of a writ of injunction to prevent the appellant from making this said sale until the taxes should have been paid. The injunction issued as prayed for, and the writ was served on March 28, 1907.

Nothing further was done in the cause until April 21, 1908, when the complainant duly obtained leave of the court to file an amended and supplemental bill, which was accordingly duly filed on April 22, 1908. This amended bill set out substantially the same facts as the original bill; but it prays for new relief, in that it asks for a personal decree for the amount of taxes against the appellant. This amended bill stated that the revenue agent had caused the appellant to be back-assessed for the taxes hereinbefore described for the years 1886 to 1904 inclusive, and it then stated that all of said assessments had been finally-ad judged legal and valid by this court, referring to the case of Adams v. Delta & Pine Land Co., 89 Miss. 817, 42 South. 170; that the-appellant had no property in Hinds county, and then, with great detail, set out the taxes for each year due the state, county and city from 1886 to 1904, inclusive; and the prayer was for a personal decree against the appellant for the sum of $32,823.38, 38, being the amount of taxes as plainly and clearly shown in-detail in the amended bill. It will thus be seen that there is no difference between the original bill and amended bill in substance ; the only difference being as to the prayer as to the additional relief sought. But this relief is sought on substantially the same state o-f facts as made up the ease as shown in thep-riginal bill. It will here- be noted that there had been in the case above referred to a final adjudication by this court of the legality and validity of all these assessments, and therefore a -conclusive judgment, as between these parties, that the amount of the taxes so levied was due as taxes from the appellant. This was not the occurrence of any new fact between the filing of the original and amended bill, within the meaning of the rule of pleading as to an amendment making a new case. It was simply, the statement, in the amended bill, of the decision of this court on the very same facts declaring the assessment valid, and the prayer, based on such decision, and upon the statute to be noted later, for a’personal decree. On the 13th of June, 1908, the appellant took its first step by filing a demurrer to the original and amended bills which demurrer was by the court, overruled. The second, fourth, seventh, eight, ninth, and tenth grounds of demurrer only- need be noticed, and they are as follows :

“(2) If, as complainant seems to assume, there is any lien upon said lands for the amount of taxes due by defendant, a sale of said lands could not impair or injuriously affect such lien in any way, and complainant is without right to the intervention of this court.”

“(4) The complainant does not allege that defendant has conveyed or is about to convey said lands with intent to hinder, delay, or defraud the complainant, or the state, or any subdivision thereof, or any other creditor; nor does he allege any other illegál intent on the part of defendant, but merely states what he takes to be the effect of a sale of said lands. In other words, the complainant seeks by his bill to accomplish the ends and purpose of an attachment in chancery without mailing the necessary averments.”

“(7)' This court is not authorized to render a personal decree for complainant’s demand. Code 1906, § 4740, is exclusive of all other remedies, and provides a specific method for the collection of back taxes or taxes on property that has escaped taxation.”

“(8) The tax collector alone is entitled to collect back taxes on personalty.”

“(9) Back taxes on personalty are not collectible by the sale ■of lands, but only by distress of personalty, or other proceedings ■affecting personalty.”

“(10) The amended bill was not filed by leave of court, and is not one that should be allowed to be filed herein, since it it not germane to the original bill and is a new and independent suit.”

'“Wherefore defendant prays that said bill be dismissed,” etc.

The other grounds of demurrer are manifestly untenable and. need not be discussed. The appellant applied for an appeal from- the decree overruling the demurrer, to settle the principles of the cause, and the court very properly refused to grant the appeal, since there were no principles to be settled, and an appeal would only have resulted in vexatious delay and expense. Defendant then filed on dune 18, 1908, its answer, but not under oath, practically denying all substantial allegations of the hill. The answer is a mere wholesale denial of any indebtedness by reason of said taxes in any way whatever. Counsel then agreed in writing that the assessments for the years 1886 to 1904, inclusive, were duly made by the state, county and municipal authorities as detailed in the bill. The cause was then set down for hearing upon the issue docket upon the pleadings and proof, and the court rendered a final decree against the appellant for the sum of $32,823.38, with interest upon said amount :at six per cent- per annum from the date only of the decree; taxes not bearing interest as such. Both the original and amended bills were duly sworn to; but there Avas no waiver in either of an answer under oath. This appeal Avas prosecuted, and the contentions following are presented:

The fourth ground of the demurrer may be disposed of at once by the observation that this is not an attachment in chancery, and has no aspect of that sort, and that it does sufficiently aver that the appellant would be rendered insolvent by the sale of "its remaining lands, and that its purpose Avas to so render itself insolvent and escape the payment of its taxes justly due. The averment of the’ bill is a sufficiently clear one that this appellant had already sold all of its lands down to about 15,000 or 20,000 acres, and that it was doing all in its power to get rid of that balance as rapidly as possible, with the view of defrauding the state, county, and city of the revenue justly due. It must be noted just here that after the final decree of this court in case of Adams v. Delta & Pine Land Co., 89 Miss. 817, S. C. 42 South. 170, adjudging these taxes to have been duly and legally assessed, the appellant no longer stands in the attitude of contesting the legality of the taxes; but its defense has degenerated into a miserable effort to defeat by various crafty devices, dealt with in preceding decisions in this case, and its subsequent conduct, the payment to the government of the just taxes due for the protection that government has been extending to it for years past. The appellant occupies just precisely that very unenviable attitude.

The tenth ground of demurrer is not well taken, since, within the principles announced in the case of Belzoni v. Yazoo, etc., R. Co., post-, 47 South. 468, recently decided, the amended bill did not malte any new case. It proceeded upon substantially the same facts; the only difference being that it asked additional relief, a personal decree, based upon the final judgment of this court rendered between the filing of the original and amended bills, adjudging these taxes to have been legally assessed and to be a legal and proper charge, as taxes, against the appellant. It is true the original bill merely sought an injunction to preserve the status quo of the lands pending final decision of this court as to the validity of the taxes, the result being also, however, to establish most of them as debts; but that injunction was granted by reason of the very same state of facts substantially, relating to the very same taxes, upon which the prayer for a personal decree was based, and in no proper legal sense can the amended and supplemental bill be said to have presented a wholly new and different case from that made by the original bill. The principles announced in the case of Belzoni v. Yazoo, etc., R. Co., post —, 47 South. 468, porfectly cover this proposition.

The seventh ground of demurrer presents the most serious-contention made by the appellant, and that contention is that the chancery court could not render a personal decree for these taxes, and that section 4740, Code 1906, is exclusive of all other remedies, and provides a specific remedy for the collection of back taxes, or taxes on property that has escaped taxation by-reason of not having been assessed. Several contentions, under this ground of demurrer, are developed in argument with very-great ability by learned counsel for appellant, and we will take them up in their order. It will first be necessary to set out Code 1906, § 4256 (which was first introduced into our law in Ann. Code 1892, § 3747, and Code 1906, § 4740. Those, section areas follows:

“4256. Taxes a Debt Recoverable by Action. — Every lawful tax levied or imposed by the state, or by a county, city, town, village, or levee board, is a debt due by the person or corporation owning the property or doing the business upon which the-tax is levied or imposed, whether assessed or properly assessed or not, and may be recovered by action; and in all actions for the recovery of taxes the assessment roll shall only be prima, facie correct.”

“4740. Duties of Revenue Agent. — To Malee Additional Assessments. — After the expiration of the fiscal year in which taxes become due should the revenue agent discover that any person, corporation, property, business,, occupation, or calling-has escaped taxation by reason of not being assessed, it shall be his duty to give notice to the tax collector in writing, -and' the collector shall, within ten days thereafter, make the proper-assessment by way of an additional assessment on the roll or tax list in his hands, and give ten days’ notice- in writing to the person or corporation whose property is assessed, and all objections to such assessment shall be heard at the next meeting-of the board of supervisors of counties or board of mayor and. aldermen of municipalities. The board' of supervisors or mayor and aldermen shall also be notified in writing by the collector of said assessment, and the state revenue agent .may appear at said meeting, and an appeal to the circuit court may be taken from the order of the board approving or disapproving such assessment by either party. If the assessment be approved and no appeal be taken, and the taxes shall not be paid within thirty days thereafter, the property, if it be real estate, shall be ordered sold as provided by section 4367, and if it be personalty, the tax collector shall proceed to collect by distress or otherwise. If the tax collector shall fail or refuse to make .an assessment and report the same as herein required, he shall be liable on his bond for the amount of taxes properly collectible and ten per cent damages thereon. If the assessment rolls be in the hands of the assessor at the time the revenue agent makes discovery of property which has escaped taxation, he shall give the required notice to the assessor, who shall make the proper assessment, and give the required notices to the owner of the property and to the board of. supervisors or mayor and aldermen, under like penalties for failure as provided against the collector, and like proceedings shall be had. When any taxes shall be collected under assessments made as herein required, the revenue agent shall receive therefor at the time of collection the same compensation allowed him by, law for other collection.”

It is first insisted, then, that Code 1906,- § 4256, making taxes a debt, and providing for their recovery by action, has no relation to back taxes, or taxes which have been back-assessed on property which has escaped taxation by reason of not having been assessed. It is said that the machinery for the collection of such back taxes and the method for their collection are provided, and provided alone, in said section 4740, and that the method therein provided is exclusive. This contention is manifestly unsound. There is nothing in either of the two sections— 4740 and 4256 — providing that the remedy in section 4740 shall be exclusive, or providing that the remedy provided bisection 4256 shall not apply to ordinary taxes assessed in the ordinary way. The manifest purpose of the legislature in enacting-section 425 6 was to provide an individual remedy, and to create a new right by which the essential nature of the obligation for taxes as taxes should be changed from, the nature such obligation had as taxes alone to the nature or quality they would have as debts, and thus to give to the sovereignty a better right, and an additional and more effective remedy for the collection of taxes. In or der to hold that this new remedy applied alone to bach taxes, we would have to rest such holding upon nothing at all except the bald fact that one set of taxes had been assessed in the ordinary way and that the other set of taxes had been back-assessed in an extraordinary way. In other words, the new remedy manifestly applicable to all taxes, would be denied application to the one set of taxes, and given application to the other set of taxes, not because of any inherent difference in the' nature of the taxes as obligations, but solely because, being of the same nature, they had merely been assessed' in a different mode. This, of course, is utterly untenable. Along this track of reasoning the learned counsel for appellant have much to say to the effect that the chancery court will not be transformed into an agency for the collection of taxes, etc., and that taxes-are universally collected by the government through the ordinary tax agencies, etc. And many authorities are cited to support this perfectly elementary proposition. Of course, these propositions are generally true. The question here is not whether they are generally true, but whether this section 4256 has not introduced a new remedy for the collection of taxes, and the authorities cited so diligently from states not having this sort of statute, of course, have no manner of application here. In other words, the legislature must manifestly have meant to add to the remedy the state had for the collection of toxos a new remedy, bv the new method provided for in section-4256, and-that method was, of course, applicable to the collec tion of all taxes. The mere fact that Code 1906, § 4740 provided ihat the method should be (where real estate was involved) by a sale of it, as provided by Code 1906, § 4367, and (where personalty was involved) by “distress or otherwise,” does not at all conflict with the provision for another and additional remedy provided by section 4256; nor does the fact that the party who shall do the collecting is, under section 4740, the tax collector, at all militate against the right of the revenue agent to bring the suit provided for in section 4256, enforcing that other additional remedy. If the remedy by section 4740 is desired to be pursued, the tax collector works it out. If the remedy provided by section 4256 is desired to be pursued, the revenue agent works it out. These questions as to who shall work it out are mere incidental questions of administration.

It is also said by learned counsel for appellant that the language in section 4256, that these taxes, treated as debts, may be recovered by “action,” because of the use of the word “action,” excludes the right to proceed in the chancery court. The law has armed the revenue agent, and armed him properly, with the amplest and fullest authority to sue in either a court of law or equity under Code 1906, §§ 4738, 4742, and 4743. If it be said that the only right to bring this action is to be found in this particular section 4256, the answer is that, whilst that is perfectly true, the construction which would make the word' “'action” relate to the circuit court alone is papably too narrow. "What possible reason could be assigned for a purpose, on the part of the legislature, to restrict the revenue agent to a court of law for the recovery of taxes treated as a debt, in all cases, universally ? Nothing is easier than to conceive of cases so complicated in their facts, and presenting so many difficulties as to the collection of taxes, as that the machinery of the court of chancery alone is elastic enough to deal effectively with the situation. In fact, no better illustration of this statement can be found than is furnished by the evidence in the long and vexatious litigation disclosed in this very cause. It would have been exceedingly easy for tbe legislature to have said, if they had so meant, that the remedy should be pursued alone in the circuit' court. The legislature has not said so, all reason is against such a view, and the word “action” must be so construed as to work out what appears clearly to have been the purpose of the legislature; and we hold, accordingly, that it empowers suit in either court. Morris Ice Company v. Adams, 75 Miss. 410, 22 South. 944, held nothing except that a personal judgment for taxes could not be rendered in that particular proceeding, which was nothing but an appeal from an order of the board of supervisors making an assessment. Since the board of supervisors had no jurisdiction to render a personal judgment for taxes-, an appellate court, reviewing its action, could render none. That, and that only, is the scope of the decision in Morris Ice Co. v. Adams, supra.

It is again earnestly urged that the remedy provided for the collection of taxes in section 4740 should be the only one pursued, for the reason that otherwise, if personal judgments are to be rendered for taxes, great hardship would result and great inconvenience be encountered by reason of the fact that mistakes are frequently made, by reason of erroneous assessment, as to ownership of property, and by reason of the further fact that in the lapse of time the evidence that would disprove ownership may become lost or destroyed, etc. This is nothing but the argument ab inconvenienti. It has no logical effect in establishing the proposition contended for. The same harshness of result, .the same inconveniences in the remedies provided by law, are encountered oftentimes in many other cases. The argument might properly enough be made to the legislature. It is out of place here. Courts cannot be influenced, where otherwise the line of decision is plain, by arguments arising purely ab inconveniente Nor is there anything in the proposition that the remedy provided by section 4740 should be exhausted before resort is had to the remedy provided for by section 4256. Three authorities are cited in support of this proposition, but .they all apply only in the absence of statutes like section 4256. We are therefore clearly of the opinion, first, that the remedy provided by section 4740 is not exclusive of the remedy provided by section 4256, where back taxes are involved; but that either may be pursued without reference to the other; the remedy provided by section 4256 being merely cumulative and additional to that provided in section 4740.

The next contention argued, with surpassing ability by the learned counsel for appellant, is that, at least as to the taxes for the years 1886 to 1892, inclusive, there could be no personal decree rendered, because section 4256, appearing first as Ann. Code, 1892, § 3747, cannot constitutionally have any retroactive effect as to these taxes for the years specified, since that statute not only creates a new remedy, but also a new right. A very ingenious reply is made to this contention by the learned counsel for appellee. He says that this statute only affects the remedy, and not the right, and that, even if it be true that it does change the essential character and nature of the obligation to pay taxes as taxes, so as to convert the essential nature of that obligation into the character and quality of obligation which a debt imports, so as that what was due theretofore in its character as a tax becomes thereafter due in the far stricter character of debt, that nevertheless all these taxes were assessed long after Ann. Code 1892, § 3747, went into effect, and that,,since taxes are not due until they shall have been assessed, all these taxes were first due only from the date of the back-assessment, long subsequent to the passage of this statute in the Annotated Code of 1892, and that hence it was competent for the chancery court to render a personal decree for the taxes for these years also, from 1886 to 1892, inclusive.

But we think this reply is more specious than sound. It does not go to the root of the objection. It would be a perfect reply if we treat these taxes for these years as taxes only, and as having only the obligation of a tax as ordinarily understood, or, what is the same thing, if the effort of the revenue agent in this case be dealt with alone along the line of enforcing the collection of these taxes through the machinery alone provided by section 4740, dealing with the revenue agent as proceeding under the machinery exclusively, and in this case as engaged in. the effort to sell these solvent credits under section 4341, according to one of the meanings of the word “otherwise” in section 4740, since he could not get hold of them by distress; they having been scattered all over the commercial world by sale to innocent purchasers for value without notice. We would then have a case of the revenue agent endeavoring to exclusively enforce the collection of these taxes, considered strictly and alone as taxes, so far as their nature and obligation are concerned, and exclusively under the machinery provided by section 4740. If we shut out wholly section 4256, and also shut out wholly the earnest effort made in this suit to enforce it, and look only to section 4740 and the procedure thereunder to collect these taxes from 1886 to 1892, inclusive, treating them as in their nature-taxes only, and seeking to collect them alone by the machinery of section 4740, then, of course, it becomes perfectly clear that since the taxes were never due until assessed, never a legal charge until then, and since they were never assessed until long after the Annotated Code of 1892 went into effect, they were exigible according to the provisions of law treating them as taxes alone in their nature when due; that is, when assessed. But that is not this case. It is only half of it. Indeed, it is hardly half of it, since the chief effort here is to collect these taxes, treated, not as taxes, but as- debts. These obligations due between the years 1886 and 1892 are not sought, in this suit, to be collected as taxes, so far as the essential and inherent nature of the obligation is concerned; but they are directly and specifically attempted to be collected as debts, and by suit for debt, and they are dealt with as debts as to their inherent obligation, in this proceeding — not as taxes at all, but wholly as debts, with the legal nature of debts, and .with a right under section 4256 to collect them as debts.

Now, keeping that view in mind, it is to be noted carefully here, that the effect of section 4256 is not only to furnish a new remedy, but it is to change the essential and inherent nature off the obligation to pay the thing, whether you call it a tax or what-not, so as to make that obligation become the obligation one is under when he owes a debt, and not the obligation one is under when the obligation is merely that of a tax. This undoubtedly is to change the right, and not merely the remedy;, and, most manifestly, having the effect to change the right, the section cannot constitutionally have any retroactive effect. Take this further illustrative statement: Suppose the suit is brought as to these taxes to recover them as debts; yet they were not debts when this section, Ann. Code 1892, § 3747, was passed. They were then taxes. They never were debts until after the passage of this section of the Ann. Code of 1892. Since they were not such in their nature prior to that Code, and only became such after the adoption of that Code, clearly they could not be sued for or recovered in their capacity as debts until after that Code went into effect. In other words, prior to the adoption of this section 3747, these obligations were taxes pure and simple, to be dealt with in the mode prescribed by Code 1906, § 7440 alone. The method, of suit to recover them is determined by their character as obligations. But since Ann. Code. 1892, § 3747, was adopted, two remedies were presented, either of which may be pursued without reference to the other. So i t follows that the judgment of the court is correct, in so far as it rendered a personal decree for all taxes except the taxes for the years 1886 to 1892, inclusive, and that its action was erroneous, in rendering a personal decree for taxes for these years.

We come now to the last point which the record presents for decision. It is most earnestly insisted by the learned counsel for appellant that the injunction in this case should have been dissolved on the hearing on the merits, and should not have been retained for further proof by the learned court below, for the reasons, first, that since, as is said, the answer under oath was not waived, and the answer, as is again said, swore completely away the equities of the bill, the complainant was without evidence, on the hearing on the merits of the bill, as to the injunction, and, second, because, since these taxes have been, finally adjudicated by this court to be legal charges, and since, if this personal decree for taxes shall be affirmed, and that decree dealt with according to law, by enrollment and otherwise, so as to secure the judgment lien, the injunction is wholly useless. On reason and principle, the second proposition is manifestly sound. Counsel for appellant are here, as in respect to leave having been obtained to file the amended bill, mistaken. Such leave was granted; but the answer was not sworn to at all, and cannot be given the effect of a sworn answer. There is atibe end of the answer this statement, signed by counsel for appellee: “Answer under oath waived.” It is urged that this could not have the effect of such waiver of oath “in the bill,” and that it meant that such force was to be given to the answer as usually attaches to a sworn answer. It would have been easy to give it that meaning by agreement. We do not know what is meant. But, this being all there is in the record, the answer is to be treated as unsworn. The object of the injunction was in part to hold the lands until the machinery of section 4740 could be invoked for their sale, if possible, after this court had declared these assessments valid. But even if the lands so held by the injunction from sale could have been sold under the machinery of section 4740 for the taxes due on these solvent credits, as most manifestly they could not have been, yet even, in that mistaken view, there would have been no occasion for the injunction when this hearing on the merits was had below, for the obvious reason that there was established by the decree below, when enrolled, etc., a judgment lien on these lands, and all other property of this appellant subject in this state to such judgment lien; and, no matter to whom these lands might have been sold, they could have been pursued under that lien and made to respond to the decree for the full amount of these taxes and interest. We are therefore of the opinion clearly that the court below ought to have dissolved this injunction, when it decided the case on its merits, for the second reason indicated. The injunction, if properly issued originally, on the debt theory, should have been dissolved on the hearing, because then no longer needed.

There is nothing in the contention that under Ann. Code 1892, § 4200, the tax assessors and tax collectors during the period when these taxes should have been assessed ought to have been made parties to this suit, for two very obvious reasons: First, because no such point was made in the court below, and it should not be raised here for the first time; and, second, if the point had been made, the section has no application under the.facts of this case.

We have given this case the most careful and painstaking consideration possible. It follows from the views we have announced : First, that the action of the court below in overruling the demurrer and in rendering a personal decree against the appellant for all the taxes herein involved, save only those for the years, 1886 to 1892, inclusive, was correct, and it is to that extent hereby affirmed; second, that the action of the court below in rendering a personal decree against the appellant for the taxes from 1886 to 1892, inclusive, was erroneous, and the decree in that respect is hereby reversed; third, that the action of the court below in failing to dissolve the injunction at the hearing on the merits was erroneous, and the decree in that regard is hereby reversed.

Let decree be entered here, in accordance with this opinion, awarding* appellant the amount of taxes sued for the years 1893 to 1904, inclusive. Let each party pay half the costs.

Reversed.