83 Miss. 571 | Miss. | 1903
Lead Opinion
delivered the opinion of the court.
The state revenue agent gave notice to the assessor of the city of Vicksburg that certain property, to wit, solvent credits to the amount of $12,000, belonging to Mrs. L. A. Kuykendall, had escaped municipal taxation for the years 1890 and 1891. The assessor placed said property on the roll, and notified Mrs. Kuykendall as required by law. Mrs. Kuykendall duly appeared before the board of mayor and aldermen and filed her petition, asking that said assessment be stricken from the roll, averring that said property was not liable to taxation for reasons set out in her petition. The petition was granted, and said assessment was ordered to be stricken’ from the roll. The
Tbe agreed statement of facts on wbicb tbe case was tried in tbe court below is as follows: “That appellee was tbe owner of the solvent credits, of tbe value of $12,000, wbicb bad not been assessed for city taxes for tbe years 1890 and 1891; that tbe revenue agent notified tbe city assessor to levy an assessment against appellee for said solvent credits for tbe years 1890 and 1891, and that all legal formalites were duly complied with in making said assessment; that Mrs. L. A. Kuy-kendall appeared in obedience to notice, and presented her petition asking that said assessment be stricken off; that tbe notes constituting said solvent credits were vendor’s lien notes, and represented tbe purchase price of a certain lot of land situated in tbe city of Vicksburg; that all taxes due on said land bad been paid, but no taxes for said years bad been paid on said notes; and that tbe city of Vicksburg was governed by its own charter, and was not under tbe code chapter on Municipalities.”
Tbe appellee bases her claim of exemption on two grounds, which we will consider in tbe order in wbicb they are presented :
1. It is contended that as tbe solvent credits here sought to be subjected to taxation are vendor’s lien notes, and represent tbe purchase price of property within the corporate limits of tbe city of Vicksburg wbicb is subject to taxation, and on wbicb tbe taxes were duly paid, tbe notes are themselves not taxable, being expressly exempted by tbe terms of sec. 31 of tbe charter of Vicksburg (Acts 1884, p. 445, cb. 391). That section is in tbe following words: ^Section 31. Be it further enacted, that all property and estate, real, personal and mixed, in said city, such as lots and parts of lots, with buildings and improvements, watches and jewelry, gold and silver plate, goods, wares and merchandise, horses, mules, carriages, carts,
The argument in support of the first contention is that, as this charter of Vicksburg antedates our state constitution of 1890, it is not affected thereby, and the exemption granted by the charter, never having been expressly repealed, still exists; and the case of Lum v. City of Vicksburg, 72 Miss., 955, 18 So. Rep., 476, is cited as an authority for that position.
It will be noted that the section of the charter under consideration provides that “all debts due to any person in said city from persons within or without the same,” and “all kinds, qualities and descriptions of property not above mentioned, . . . shall be assessed and listed for taxation at- the fair and full worth and market value of the same.” After thus providing for the assessment of all property, including all solvent credits, for purposes of taxation, the charter then proceeds to exempt from taxation a certain designated portion of the general class of solvent credits.
It must be conceded as definitely settled in this state that 'the rule of uniformity and equality in the constitution of 1869 applied to and governed general municipal taxation. Without extending this opinion on this point by quotation, we cite Daily v. Swope, 47 Miss., 386; Vasser v. George, 47 Miss., 721; Adams v. Bank, 75 Miss., 701, 23 South., 395, as the more explicit utterances of our court upon this question. It is also familiar learning that, under the constitution of 1869, it was uniformly held that the subjects of taxation might be classified at the discretion of the legislature. A reference to the following authorities will show the gradual evolution of that doctrine: Daily v. Swope, supra; Vasser v. George, supra; Mississippi Mills v. Cook, 56 Miss., 40; Bank v. Worrell, 67 Miss., 47, and later cases. But it must also be noted that each of these cases held further that there could be no discrimination between property of the same class. The classification of property for purposes of taxation, when upheld as not viola-tive of the constitutional provision, is always coupled with the proviso, “if all of the same class are taxed alike.” We are not now considering a state of case where no power to tax has been delegated to the municipality. It may be taken as an established doctrine that municipalities derive their power of levying taxes for general purposes only through a delegation from the state. The sovereign power of taxation is vested solely in the state. But the question of what, if any, inherent powers a municipality possesses, is not presented by this phase of the case. Here we have an absolute and complete delegation of
This position is approved and sustained by many authorities in other states, and is stated as the true rule in 25 Am. & Eng. Enc. of Law, 55, et seq. In Knowlton v. Supervisors, etc., 9 Wis., 410, where the question now under consideration was most exhaustively discussed, it was decided that the legislature had no power to arbitrarily classify property for purposes of taxation within the limits of the city of Janesville. The reasoning of this case is carefully analyzed and approved by Cooley’s Constitutional Limitations (7th ed., ch. 14), and
Passing mow on to an examination of the decisions of our own court on this question, we find that in Smith v. City of Aberdeen, 25 Miss., 462, Merger, J., states the rule thus: “It is perfectly competent to designate and specify the particular class or kind of property on which the tax shall be levied; and, when this is done, so long 'as it exempts' no property falling within that designation from the operation of the tax, no valid objection can be urged
Section 31 of tbe charter of tbe city of Vicksburg directs that all debts due any person, including in tbis general term all notes, mortgages, trust deeds — in short, all solvent credits, secured or unsecured — “shall be assessed and listed for taxation at tbe fair and full worth and market value of tbe same,” and then exempts notes representing purchase price of property from taxation. Tbis is not a “classification of property,” according to our understanding of tbe meaning of tbe term. Vendor’s lien notes are simply solvent credits, belonging to tbe same class, possessing similar characteristics, and differing neither in kind nor use. To our mind it is manifest that tbe constitutional rule of uniformity has been ignored in tbe discrimination made between different kinds of solvent credits mentioned in tbe charter. Take a common occurrence as an illustration: A man purchases a lot with tbe intention of building a bouse. A portion of tbe purchase price is represented by vendor’s lien notes, and, to secure money to erect a bouse be executes a junior mortgage. Upon no principle of equity, justice, or right can tbe former solvent credit be exempted 'while tbe latter is taxed. Krom tbe evidence of tbe debts themselves, from tbe manner in which, by operation of law, they are secured and their payments insured, vendor’s lien notes are among tbe safest, and consequently most valuable, of tbe great class of solvent credits, and yet tbe bolder of tbis kind is alone singled out to be tbe re
We conclude that the exemption from taxation of purchase money notes attempted to be granted by section 31 of the charter of Vicksburg cannot be upheld as a legislative classification
As an answer to tbe proposition that tbe exemption here claimed should be upheld because tbe assessment of vendor’s lien notes is double taxation we refer to- tbe opinion of this court — unanimous on that point — in Adams v. Clarke, 80 Miss., 134, 31 So., 216.
2. The second ground on which appellee bases her claim to exemption is that tbe city authorities have no power, under tbe charter or state law, to assess property for taxatin for tbe taxes of past years; and in support of this position it is contended that as tbe charter of tbe city of Vicksburg is silent upon tbe point, and does not expressly grant to its taxing officer tbe power to assess property for taxation for past years, tbe state cannot rightfully grant the power to the state revenue agent of requiring tbe municipal assessor to make tbe assessment. And it is urged further that if chapter 34, p. 29, Acts 1894, was so intended, it is null and void, as being an invasion of tbe right of local self-government which is vested in municipal corporations under the constitution of 1890; and, again, it is urged that if the act of 1894 was designed to operate as an amendment to tbe charter of municipalities which, like tbe city of Vicksburg, are governed under special charters, and not tbe code chapter on “Municipalities,” in that view of tbe act it is violative of sec. 88 of tbe constitution of 1890, because under that section tbe legislature ds deprived of tbe
The contention that the constitution of 1890 in any manner abridged or limited the power, of the legislature in reference to municipal corporations is based upon a total misconception of the real meaning and design of that instrument. Munnicipal corporations are now, as they have always been in this state, purely creatures of legislative will; governed, and the extent of their powers limited, by express grants; invested, for purposes of public convenience, with certain expressed delegations of governmental power; their granted powers subject at all times to be enlarged or diminished; having no vested rights in their charters which are subject at all times to amendment, modification, or repeal; their powers, their rights, their corporate existence, dependent entirely upon legislative discretion, acting as it may deem best for the public good. This conclusion has been so repeatedly announced by our own courts, and has been so uniformly approved by text-writers, and decided by courts of last resort in other states, that it has become crystallized into settled law, and now receives recognition as a universally accepted rule of constitutional construction. Unless expressly limited by constitutional provision, the legislative department has' absolute power over municipalities. The constitution of 1890 contains no such specific limitation upon the power of the legislature in this regard. On the contrary, a careful consideration and comparison of the various sections in that instrument setting forth the constitutional scheme regarding municipal corporations will demonstrate that sec. 88 was one of the mandates of the legislature, not permitting (for it had always been vested with ample power) but requiring it to exercise that power so as to correct certain evils previously existing in the government of certain municipalities. Prior to the adoption of the constitution of 1890 every city and town in the state was governed under its own special charter, framed
The unwriten theory of local self-government cannot be read into a constitution to» vary the ordinary and usual meaning of the terms employed, when otherwise the construction of the instrument is free from doubt. Certainly the theory can have no application where, as in this case, the power is reserved to recall even the right to elect their own local officers. And it is an invariable rule, supported by a wealth of authority, that it is never a violation of the doctrine of local self-government for the state to appoint its own fiscal agent to supervise the action of county or municipal taxing officers. And, indeed, it has been held in many well-reasoned eases that citizens of a municipality are not guaranteed the right of local self-government, and that their right to participate in the choice of officers who are to administer the affairs of the local government is a matter exclusively within the judgment and dis-cretin of the legislative department of the state government. Newport v. Horton (R. I.), 47 Atl., 312, 50 L. R. A., 330; Americus v. Perry (Ga.), 40 S. E., 1004, 57 L. R. A., 230; Davock v. Moore, 105 Mich., 120, 63 N. W., 424, 28 L. R. A., 783; State ex rel. v. Myers, 52 Wis., 628, 9 N. W., 777. How
It is urged, however, that even if ch. 34, p. 29, Acts 1894, be upheld, it cannot be made to apply to the city of Vicksburg and other municipalities operating under special charters. And as to the city of Vicksburg, it is said that, as its charter only provides for a levying of taxes for the current year, after such annual assessment is made and approved by the board of mayor and aldermen, their action is final, and cannot be revised or corrected. If we follow the logic of the argument it leads inescapably to the conclusion that the municipal taxing officers are clothed with absolute power over the subject of taxation, and that the selection of the subjects of taxation and the classes of property to be favored or discriminated against, depends solely upon the personal whims or wishes of the men composing the board then in power. If their authority be above question, and their errors beyond correction, each succeeding board could, at its pleasure, levy taxes only on such classes of property as they selected to bear the entire burden of local government. Thus, if the board should chance to be composed of the advocates of the single tax theory, land would alone be subjected to taxation, and all other classes of taxable property exempted by the .simple process of omitting them from the roll. This would be devoid even of. the semblance of uniform and equal taxation. See Wells v. Hyattsville, supra.
The fact that certain property escaped taxation in past years, either through the neglect, oversight, or misapprehension of law, of the taxing officer, or through mistake or intention of the owner, does not deprive the state of its right to still sub
The further contention of counsel for appellee is this: That as the taxing officers of the city of Vicksburg were without authority to levy taxes on solvent credits evidenced by purchase money notes at the date when, in the instant case, the property is said to have escaped taxation, i. e., the years 1890 and 1891, therefore the revenue agent is not empowered now to require such assessment. There are two plain answers to this position: Eirst. The attempted exemption being void, the city authorities were empowered to make the levy, and the property was simply omitted through a misapprehension of the law by the taxing officers, and that does not bind the state, as was expressly decided in Ice Co. v. Adams, supra. Second. Another and all-sufficient answer is found in the reasoning of the court in Railroad Co. v. Adams, 13 Miss., on pages 660, 661, 19 So., 91, which is so forceful and unanswerable, and applies so perfectly to the case at bar, that we adopt it as decisive of this point. In this regard the same rules of law are applicable to the railroad commission and to the city of Vicksburg. Each is vested with governmental functions purely for public convenience. Each holds its powers in this connection at the legislative pleasure. Neither can assess property for taxation except by grant from the lawmaking power. The evident intention of the legislature was that all property, corporate or individual, which from any cause had escaped assessment since the year 1886, should be subjected to taxation. To hold that ch. 34, p. 29, Acts 1894, was inoperative because of the lack of power in the railroad commission and municipal tax officer to comply with the mandate of the law, would be to convict the legisla
We bold that ch. 34, p. 29, Acts 1894, is a general law, embracing in its scope all municipal corporations of tbe state. This is decisive of tbe legal principles involved in appellee’s claim of exemption, and this opinion might well end here. But it is so strenuously urged that tbe propositions of law relied on by appellee have already been approved by this court in tbe case of Adams v. Greenville, 77 Miss., 881; s. c., 27 So., 990, that we will devote a few words to tbe differentiation of that case from tbe one at bar: Tbe facts in the Greenville case were these: In 1894 and 1895 tbe general municipal levy was 12 and llj mills on tbe dollar, respectively, but on banks and solvent credits tbe levy for tbe same years was only six mills. In 1899 the revenue agent petitioned for a writ of mandamus to require tbe board of mayor and aldermen of tbe city of Greenville to levy 6 and mills on banks and solvent credits, basing bis petition on tbe claim that this property had escaped taxation to that extent. Tbe writ was denied by tbe circuit court, and on ap,peal by bis court. Assuming as correct all that can be deduced from that opinion, it cannot be made to apply to tbe instant case. That was a mandamus case, and a majority of tbe court held that tbe revenue agent was not entitled to that remedy; and this, really, was tbe point of decision in that case. But a brief analysis will demonstrate that tbe decision in tbe Green-
Our conclusions, then, are: First, the exemption attempted to be granted by sec. 31 of the charter of the city of Vicksburg is void, being in violation of sec. 12, art. 20, of the constitution of 1869; second, eh'. 34, p. 29, Acts 1894, applies to all municipal corporations in the state; third, the revenue agent is authorized to have all property assessed which has heretofore escaped taxation hy reason of failure to 'assess, and this applies to municipal taxes as well as state and county. These conclusions in no wa.y impair or infringe upon the paramount power
Just a final word: The primary purpose of the law creating the office of revenue agent, and providing a summary method to enforce the payment of any sum due the state, or any levee board, county, or municipal corporation, for delinquent taxes, or by any officer or agent thereof, and formulating a plan insuring the assessment of all property which has escaped taxation, was for the protection of the public revenue, first, by forcing the corrupt or negligent officer to promptly account for or pay over'the public funds intrusted to his charge; second, by preventing fraudulent escape from taxation by failing to list property for assessment. But the terms of the law were advisedly and designedly made so broad as to cover every case where' property has escaped taxation — whether fraudulently withheld by the 'corrupt taxpayer, overlooked by the negligent assessor or tax collector, accidentally omitted by the honest citizen, or intentionally omitted through misapprehension as to its liability to taxation. "Whatever the reason or cause of the failure to assess, the' law requires that every class of property, corporate or individual, not expressly exempted shall yield its fair proportion of taxes,' so that the burden of government shall rest uniformly upon all. The inflexible but impartial enforcement of this law is to be commended, as no injustice can be worked under its terms. No matter how defect
jReversed and remanded.
Dissenting Opinion
delivered tbe following dissenting opinion:
I cannot concur in tbe opinion of tbe majority of tbe court. Municipalities are powerless to levy taxes, unless expressly authorized to do so by law. Vicksburg could not levy any tax whatever if its charter did not empower it to do so. It is also perfectly clear that, until tbe municipal chapter of tbe Code 1892 (cb. 93, p. 686) was enacted, no municipality could tax property which bad escaped taxation in previous years. But Vicksburg is not under the municipal chapter of that code. It elected not to come under it, and therefore by § 3035 it is exempted from its operation as to tbe subject in band, it not being one of those made applicable by § 3036 to all such corporations whether under that chapter or not. Taxation being an annual scheme, and, Vicksburg being absolutely powerless itself to tax for past years, it is curious, indeed, if tbe revenue agent can make it do what it is armed with no power itself to do. If be may so compel, it must be in virtue of some express law strictly construed. If there be any such, it is cb. 34, p. 29, Acts 1894, and it would require an india-rubber stretch of construction to make that reach tbe point. Certainly there is nothing there expressly empowering municipalities to levy and collect back taxes, while it is notably true that tbe legislature has given that power to those under tbe municipal chapter of tbe code, § 3018. If tbe municipal board of Vicksburg bad, of its own motion, ordered this assessment for back taxes, successful resistance by tbe citizen would be certain on tbe ground of ultra vires. Adams v. Greenville, 77 Miss., 881; s. c., 27 So.,
Tbe other question presented by the record need not be considered or decided, but it is my judgment that, under tbe constitution of 1869, tbe .legislature bad tbe power to exempt from municipal taxation in tbe charter of Vicksburg that class of solvent Credits which it did exempt, being vendor’s lien notes"
