Knox Atty. Gen. v. Southern Paper Co. , 143 Miss. 870 ( 1926 )

^* Corpus Juris-Cyc References: Evidence, 23CJ, p. 94, n. 10. Justices of the Peace, 35CJ, p. 824, n. 69 New. Pleading, 31Cyc, p. 567, n. 31; p. 572, n. 98. Taxation, 37Cyc, p. 729, n. 77; p. 761, n. 58 New; p. 1107, n. 51 New; p. 1116, n. 99. Effect of bill of particulars on proof, see note in 8 A.L.R. 550; 21 R.C.L. 480; 3 R.C.L. Supp. 1159. Appellant as attorney-general prosecuted an appeal from an order of the board of supervisors of Jackson county approving appellee's assessment of personal property in that county for the year 1925. This appeal was prosecuted by appellant under authority of chapter 120, Laws of 1918.

Appellant's petition for appeal set out in substance that the appeal was prosecuted under that statute; that appellee's assessment of personal property in Jackson county for the year 1925 as approved by the board of supervisors of that count amounted to eight hundred thirty-two thousand eight hundred ninety dollars; that the assessment was an undervaluation of the property assessed and less than the average value of other property of like kind and value in the state of Mississippi and in Jackson county. There was attached to appellant's petition as a part thereof a copy of the assessment in question as follows:

"Southern Paper Co., Moss Point. Eight hundred thirty-two thousand eight hundred ninety dollars. [Various items of personal property, to-wit:] Eleven mules, one thousand one hundred dollars; six horses, six hundred dollars; two automobiles, Dodge and Ford, six hundred dollars; ten vehicles, three hundred dollars; four watches or clocks, one hundred dollars — total number of things taxed, thirty-three; heating, lighting, water or sewerage systems, or baths, four thousand dollars; office or store fixtures, one thousand two hundred dollars; merchandise and all stocks of goods and materials on hand, seventy thousand dollars; machinery, tools, implements, and equipment, two hundred eighteen thousand nine hundred ninety dollars; materials, supplies, or articles on hand, manufactured by party, assessed ninety-five thousand six hundred dollars; supplies and materials on hand, to be used for manufacturing purposes, twenty-thousand dollars; boats, schooners, launches, and other watercraft, twenty thousand dollars; telephone, railroad, electric light, gas, water lines equipment, etc., four hundred thousand dollars."

Upon the trial in the circuit court appellee filed a motion for a bill of particulars, based on an affidavit setting out the grounds therefor, which were that appellee was not advised and could not ascertain from appellant's petition for appeal as to what items of appellee's assessment was claimed to be undervalued, nor as to what valuation appellant claimed should be put upon the various items of the assessment, nor as to whether appellant claimed that the property should be assessed at its full value or at a value on a level with the assessed value of other like personal property in Jackson county and the state of Mississippi.

Appellant's position is that the court erred in requiring a bill of particulars because the assessment roll itself attached to appellant's petition for appeal was a sufficient bill of particulars. The trial court took that view. Appellee's position is that the assessment roll was insufficient as notice to appellee of the case it had to meet; that in order to properly defend the cause it was necessary that appellee know in advance how much undervaluation appellant would claim the assessment represented, and also whether appellant would claim that appellee's property should be assessed at full value or on a level with the assessment of other property of like kind and value in Jackson county and in the state. The trial court sustained appellee's motion for a bill of particulars, thereupon appellant declined to comply with the order of the court, whereupon the court dismissed appellant's appeal. From that judgment appellant prosecutes this appeal.

Section 763, Code of 1906 (Hemingway's Code, section 546), provides:

"If the pleading in any case be in vague and general terms, or do not specify the circumstances or the occasions on which the pleader relies, and the opposite party satisfy the court, by affidavit, that for the purpose of prosecution or defense at the trial it is necessary that his adversary be more specific, the court may order a bill of particulars to be rendered, specifying time, place, and circumstances relied upon, and persons present, or, in case of contractual demands, more particularly itemizing the claim; and thereafter on the trial evidence shall not be admissible of matters not so specified."

Where in the progress of a suit, if from any cause a defendant is placed in such a situation that justice cannot be done at the trial without the aid of a bill of particulars, the court should require such a bill so pointing out and particularizing the foundation of plaintiff's claim as that the defendant will know the case he has to meet. This is true under our statute as well as at the common law. The common-law courts had and exercised that authority in the absence of a statute requiring it. Tilton v. Beecher, 59 N.Y. 176, 17 Am. Rep. 337; 21 R.C.L. pp. 480, 600. And the statute applies to all character of causes in the circuit courts brought originally in that court as well as all causes that come there by appeal from justices of the peace, boards of supervisors, or other inferior tribunals which are to be tried de novo. In other words the application of the statute is universal in the circuit courts so far as such causes are concerned. But appellant argues that, conceding the application of the statute to a case of this character, still it was sufficiently complied with in the form of the copy of the assessment roll which was exhibited with appellant's petition for appeal from the order of the board of supervisors in question. It will be noted that the copy makes a separate item of each class of property, giving a total value for each class and not a separate value for each item making up the class. To illustrate: eleven mules, one thousand one hundred dollars; six horses, six hundred dollars, etc.

In order to determine whether or not appellant's petition for appeal and the copy of the assessment roll of appellee's property exhibited therewith constituted a sufficient bill of particulars in this case, it is necessary to consider the requirements of the law with reference to the valuation of property for assessment. Under section 112 of the Constitution taxation must be uniform and equal throughout the state and property taxed in proportion to its value, and must be assessed for taxation under general laws according to its true value. But under the equality clause of the Fourteenth Amendment of the Federal Constitution as construed by the supreme court of the United States, if in assessing property for taxes either the requirement that it be assessed at its true value, or the requirement that its assessment shall be uniform and equal, is sacrificed, it must be the former and not the latter. Where there is a systematic scheme by the assessing officers of a state to assess property for taxes generally below its true value, a taxpayer whose property is assessed at full value is thereby deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Federal Constitution. Sunday Lake Iron Co. v. Town ofWakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78, 12 Ann. Cas. 757. It is a matter of common knowledge in this state that the assessing officers of the state systematically and universally assess property in the state at a lower level than its true value.

Furthermore in determining whether the property of the taxpayer is assessed at its just value as compared with the assessment of like property, the equalization boards dealing therewith determine the question on a view of the taxpayer's entire assessment. The question to be determined is whether the assessment as a whole represents a fair value. Some items of the assessment may be above the general level and others below. First, a general level must be fixed applying to all property of the kind involved. Where items are assessed below that general level and other items are assessed above, the items are not changed by the equalization board considering the matter, but the taxpayer is to be credited on the items assessed below the general level by the excess on the items assessed above, and in that manner the sum total of all the items worked out. RobinsonLand Lumber Co. v. Robertson, Attorney-General, 126 Miss. 535,

89 So. 160; Redmond v. City of Jackson (Miss.), 108 So. ___ (decided April 19, 1926, being No. 25664).

Applying those principles to the case in hand, we think that appellant's petition for appeal and the copy of appellee's assessment exhibited therewith was a sufficient bill of particulars, especially at the beginning of the trial of the case. If it should develop during the progress of the trial that appellee will be unduly burdened and put to unnecessary expense for the want of more specific notice of the case it is to meet, the trial court will be authorized under the law in its discretion to require a further and more specific bill of particulars.

Reversed and remanded.