State Ex Rel. Mitchell v. McDonald , 164 Miss. 405 ( 1933 )

I concur in all that is said in the main opinion herein except the reason given for not applying the rule announced in Revenue Agent v. Clarke, 80 Miss. 134, 31 So. 216, 218, and Miller v. Citizens' National Bank, 144 Miss. 533, 110 So. 439, 440, that "an assessment of property for taxation is conclusive . . . as against the taxpayer, that he is the owner, or taxable for the property shown on the roll." If the court was there called on to decide that question, its decision thereof would be controlling here.

In the Clarke case, the revenue agent sought to back assess solvent credits of Clarke to the amount of twenty thousand dollars, which he claimed had escaped taxation for the year 1900. The assessment roll for that year contained an assessment against Clarke of five thousand dollars of solvent credits. Clarke pleaded this assessment as res judicata of his solvent credits assessment for that year.

The question thus presented to the courts was set forth in its opinion as follows: "The question is precisely this: Where a taxpayer actually has, say one hundred thousand dollars of solvent credits, which are actually collectible for the full value, and he knows that fact, and so regards them, and intentionally undervalues them, by returning them, say, at five thousand dollars, as probably collectible, even supposing him to have sworn to his assessment, have not the ninety-five thousand dollars escaped taxation by reason of not having been assessed?"

In showing why this question should be answered in the affirmative, the court said that an assessment of property for taxation is conclusive of two things only: "First, as against the taxpayer, that he is the owner, or taxable for the property shown on the roll; second, as against the taxpayer and the public, that the valuation of the enumerated property is as finally shown on the roll" — thereby brining the case it had under consideration without the res judicata rule. The method there adopted of determining whether the given case was within or without the rule of res judicata was that of inclusion and exclusion, a perfectly legitimate method and one frequently adopted by the courts; but, in such cases, their opinions become authoritative within the rule of stare decisis only as to the questions actually presented to them for decision, and the only question presented in the Clarke case was whether Clarke owned property for which he had not been previously assessed.

In Miller v. Citizens' National Bank, the revenue agent sought to back assess the bank on the value of its shares of stock which he claimed had been undervalued in a prior assessment. This assessment was pleaded by the bank as res judicata, and the court, in sustaining the plea, reproduced the statement from the Clarke case as to the elements of which an assessment roll is res judicata. The second of these elements was the only one there involved and the only one on which the court could express an authoritative opinion.

There was no question in either of those cases as to whether an assessment is res judicata of the ownership of the property assessed, and courts are not bound by any expressions appearing in their decisions upon uncontested points. Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200, 317, 28 So. 956, 60 L.R.A. 33.

These expressions of the court in the two cases as to the conclusiveness of the judgment roll on the question of the ownership of the property assessed were not obiter, but were in the nature of judicial dicta, and therefore are not within the strict rule of stare decisis; but they do show the "views entertained by the court at that time" are "of persuasive force. . . ." and should be followed unless found to be erroneous. Sprague v. Northern Pacific R. Co., 122 Wis. 509, 100 N.W. 842, 106 Am. St. Rep. 997; 15 C.J. 953; and State v. Tingle, 103 Miss. 672, 60 So. 728.