Gully v. J. J. Newman Lumber Co.

At the request of the appellant, the tax assessor of Forrest county back-assessed timber growing on land owned by appellee, for the years 1930 to 1932, inclusive, and thereafter for the year 1933; it having, according to the assessor, escaped taxation for those years. These assessments were approved by the board of supervisors, but were disapproved and set aside by the circuit court on appeal thereto. The real property rolls in use during these years are ruled so as to disclose:

(1) The number of acres of cultivatable land, the value thereof, excluding buildings, improvements, and timber, and the value of buildings and improvements thereon.

(2) The number of acres of timbered lands, its value, excluding timber and improvements, the number of thousand feet of board measure timber, and the value of the timber thereon. And

(3) The number of acres of uncultivatable land, and its value, excluding buildings, improvements, and timber.

The appellee, in returning this land for assessment for each of these years, listed the land, on which the timber here in question is, as uncultivatable land, without disclosing the value of the timber, if any, thereon, and the land was accordingly assessed. There was timber growing on the land.

The statute here governing is chapter 58, Extraordinary Session of the Legislature of 1928, which was brought forward into the Code of 1930 as section 3145 thereof.

The appellee's contentions are: First, that this statute does not require timber on land to be assessed separately; and, second, if it does so require, the assessments made are res judicata. The statute, after providing that the land shall be assessed at its true value, continues: "Every person owning or being in possession, or in charge, of any land shall deliver to the tax assessor on demand and not later than April first in each year in which land is assessed, a list of all lands owned by, or in possession, or charge, made out on the tax lists prescribed; and showing the total number of acres (except the land be platted by blocks and lots), the total number of acres of cultivatable lands and the value thereof, the total number of acres of timbered lands and the value of the land, and the number of thousand feet of timber thereon and its value, and the number of acres of uncultivatable land and the value thereof; and buildings or improvements subject to taxation on any lands returned for assessment. . . . If any person shall deliver or disclose to an assessor, or deputy assessor, a list, statement, or return in regard to his land which, in the opinion of the assessor, or deputy assessor is false or fraudulent, or contains any understatement or undervaluation, or fails to show the proper classification of lands or fails to show timber, buildings and improvements, or other elements of value, the assessor shall make an assessment of the land with the proper classification thereof including the omitted things, at a valuation equal to the highest value at which like lands similarly situated are assessed. Lands not given in by any person shall be assessed in the same manner by the assessor at a valuation equal to the assessment of other like lands similarly situated and all timber, buildings, and improvements, or other elements of value shall in all cases be separately valued and assessed."

The appellee admits that this statute requires the assessor, when assessing "lands not given in by any person," to separately value and assess the timber growing thereon, but says that a separate assessment of timber is not required where the land has been given in for assessment. Its argument, in substance, is that requiring persons giving in land for assessment to set forth the improvements and timber thereon, and their value, is for the purpose of enabling the assessor to properly arrive at the true value of the land, and that requiring the assessor, when assessing land not given in, to separately value and assess the timber and improvements thereon, is for the reason that the improvements and timber may be owned by one person, and the land itself by another, in which event, section 3146, Code of 1930, requires a separate assessment, and the assessor in making the assessment would not know whether there were separate ownerships.

We are unable to agree with this interpretation of the statute. It requires a person, giving in land for assessment, to disclose the value of the timber and improvements thereon, and concludes as follows: "And all timber, buildings, and improvements, or other elements of value shall in all cases be separately valued and assessed." (Italics ours.)

But appellee says that this language refers only to assessments made by the assessor on property not given in therefor. The requirement is that "lands not given in by any person shall be assessed in the same manner by the assessor," manifestly meaning in the manner that land is assessed when given in therefor, and that the words "in all cases," unless limited by construction, cover all assessments made by the assessor, whether given in therefor or not. Had the Legislature intended to limit such assessments to those initiated by the assessor, it could have, easily and definitely, so provided by using the words "in such cases," instead of the words "in all cases."

This being the requirement of the statute, the timber on the land has escaped taxation, and the assessment of the land alone was not an adjudication by the board of supervisors that there was no timber on the land, or that the timber thereon was of no value. Darnell v. Johnson, State Revenue Agent, 109 Miss. 570, 68 So. 780. In that case the writer hereof expressed a contrary view, but a majority of the court disagreed with him. The judgment of the court below will be reversed.

At the trial on the appeal to the court below, the parties agreed on the amount of timber on the land and its value. This amount and value were different from that assessed and approved by the board of supervisors. The court below should have approved the assessment of the timber, but should have set aside the order of the board of supervisors insofar as it fixed the amount and value of the timber, and should have entered an order fixing the amount and value thereof as per the agreement of the parties. This will be done here.

Reversed, and judgment here for the appellant.