91 So. 20 | Miss. | 1922
Lead Opinion
delivered the opinion of the court.
This is a bill in chancery on the relationship of Frank Roberson, attorney-general for the state, against Martha C. Enochs and other executors and heirs of the estate of I. C. Enochs, deceased, wherein it is sought to compel the defendants to discover and disclose the true amount of the estate subject to an inheritance tax under the Inheritance Tax Act (chapter 109, Laws of 1918; chapter 122a, Hemingway’s Code of Supp. of 1921) ; and praying for a personal decree against the defendants and the estate for the inheritance taxes due thereon.
The bill charges:
“That the said executors submitted to (the Tax Commission of the state a statement purporting to give a true and correct statement of the assets and the property of said I. G. Enochs deceased, but that the Tax Commission was in*376 formed and believes said statement is incorrect in divers and sundry particulars, and especially in that the said estate is valued at only a total of five hundred and seventy-seven thousand dollars, whereas in truth and in fact the complainant is informed and believes and so charges, that the said estate was of value between two million, five hundred thousand dollars and three million dollars.”
The bill further charges in substance that the Tax Commission was convinced that the statement contained a gross undervaluation of the estate, and, acting under the law, proceeded to summon one of the defendants to come before the appraiser appointed by the Commission and give testimony on oath as to the true value of the said estate, whereupon the defendant declined and refused to appear and give testimony as ordered so to do under the authority of the said Inheritance Tax Law.
That the Tax Commission, being unable to procure said testimony in the manner provided by law, deemed it necessary and proceeded to file this bill for discovery, and ordered the attorney-general to so proceed, in order to discover the true amount and value of said estate; that the value of said estate is totally unknown to the complainant, and, being unable to secure the information from the defendants, in whom it alone reposes, as to the value of the said estate, discovery is prayed so that the true amount due as an inheritance tax may be ascertained by the Tax Commission.
It is charged that the defendants are due inheritance taxes to the state of Mississippi, but the exact amount of which is unknown to complainant, because he does not know the exact value of the said estate. The bill prays that process issue to the defendants, asks for specific discovery, and that on final hearing a personal judgment be given against defendants for the inheritance taxes due the state upon the said estate of the deceased, I. C. Enochs.
A demurrer to the bill was filed by the defendants, which challenged the validity of the Inheritance Tax Act on several grounds, and also raised the question of jurisdiction
It will be unnecessary, at this time, for us to consider the points raised as to the constitutionality of the act, because a determination of the question as to the jurisdiction of the chancery court to maintain the bill will dispose of the appeal, and a decision of the other points would be mere dicta.
The contention of the appellant, as we understand it, is that the chancery court has no jurisdiction to compel discovery, nor to render a personal decree for the taxes, because the act expressly provides the method of ascertaining and assessing the inheritance tax due upon the estate of the deceased, and that where the method or remedy for assessment and collection is provided by the act that gives the right to tax, the method is exclusive, and must be followed.
The opposing view of the attorney-general is that the bill is maintainable, for at least discovery, for the reason that the Inheritance Tax Act imposes a tax which is a debt, and may be ascertained and collected by an action in the courts, relying upon section 4256, Code of 1906 (section 6887, Hemingway’s Code), and section 4805, Code of 1906 (section 3169, Hemingway’s Code), which sections we here set out:
“6887 (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.”
“3169. (4805) The State Entitled to All Actions — Unlawful Detainer for its Lands. — The state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case; it may maintain the*378 action of unlawful entry and detainer in all cases, at its option, for the recovery of land.”
It is further contended by the attorney-general, as we gather from the arguments, that the bill may be maintained even without the aid of section 4256, Code of 1906 (section 6887, Hemingway’s Code), above referred to, on the ground that the Inheritance Tax Act itself Imposes a tax or obligation, or personal debt, in favor of the state against defendants which may be ascertained by discovery, and collected by suit in the same way that an individual could sue under the said section 4805, Code of 1906 (section 3169, Hemingway’s Code).
After a careful consideration of the question involved we are convinced the suit is not maintainable upon either ground urged by the appellee, nor upon any other. The said section 4256, Code of 1906 (section 6887, Hemingway’s Code), making taxes a debt recoverable by action, has no application to the recovery of an inheritance tax. It is obvious from the language of the statute the legislature had in mind only property and privilege taxes; as it plainly says every lawful tax imposed “is a debt due by the person or corporation owning the property or doing the business upon which the tax is levied or imposed.” It was only intended to provide that the tax should be a debt against the person owning the property or doing the business upon Avhich it is levied; a property tax or a tax upon a privilege, not an inheritance.
At the time of the enactment of the statute inheritance and income taxes were to our state unknown, or at least were not within the design of the legislature. Therefore, the section does not make the inheritance tax a debt recoverable by action; and since the inheritance tax is not made a debt by statute, the act creating the tax and prescribing the method of its assessment and collection is exclusive and must be followed.
The statute does not afford a cumulative remedy to collect inheritance taxes, as it does in cases of taxes imposed upon property or upon the business, as held in Delta & Pine
The same principle is announced in State Revenue Agent v. Tonella, 70 Miss. 701, 12 So. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642, in Avhich it was held that the assessment can only be made by the officer designated by law. It is true the court there was speaking of the duty of assessing as imposed by the Constitution; but the principle is the same, in that, where the statute designates the method of assessment in order to ascertain and collect a tax, the statute is equally impelling as the Constitution, and must be followed as the exclusive remedy of collection.
The rule seems to be universal in this state and elsewhere that the method of assessing and collecting the tax prescribed by the act creating the tax must be followed to the exclusion of any other remedy. This principle was announced by this court in the recent case of Hattiesburg Gro. Co. v. Robertson (Miss.), 88 So. 4, wherein it was held that the method provided in the Income Tax Act must be followed exclusively in the assessment and collection of the tax. This is undoubtedly the true rule, and actions in the courts to assess and collect taxes cannot be maintained unless there be a statute so providing, either by declaring such a tax a recoverable debt, or by giving jurisdiction expressly to assess and collect such taxes by suit, provided, of course, such authority does not come in conflict with the Constitution. We have been unable to find any decisions contrary to the views expressed above; on the other hand the rule we announce seems to have been long established in our state. See Board of Super
As to the second, proposition presented by the appellee, that is, that the Inheritance Tax Act imposes a tax which constitutes a debt or personal obligation in favor of the state, we are unable to agree with the contention, for the reason that, as we have already said, no tax is a recoverable debt unless made so by a statute, and in the case at bar the Inheritance Tax Act, if we assume it imposes personal liability, does not make the tax a debt or personal liability against the defendants until after the amount is ascertained and assessed by the Tax Commission. And the act provides the exclusive method of ascertaining and assessing the tax.
Section 4987d, Hem. Supp., provides that the tax imposed shall be assessed and determined by the state Tax Commission, and notice of the amount shall be mailed to the executor, and the commission shall collect the taxes so assessed. Section 4987g makes a similar provision for the ascertainment of the tax. Section 4987k provides that the tax imposed shall be due and payable when the amount thereof is determined by the board of Tax Commissioners. Section 4987y provides that the Tax Commission may reappraise the estate and sets out the method of so doing. And, finally, section 4987z provides a remedy by coercion for ascertaining and assessing the tax, by compelling the representatives or heirs of the estate to disclose and discover the true amount of property subject to the tax, upon which the Tax Commission will determine and make the assessment and proceed to collection.
We think from a careful reading of the Inheritance Tax Act it will be clearly seen that no tax is due against the estate of the decedent, and consequently is not a recoverable debt, until after the amount has been ascertained and assessed in the manner provided in the act. The method prescribed by the act in order to establish the tax is available and exclusive, and must be followed in the absence of other legislation authorizing the state Tax
The act can be said to give a right to the Tax Commission to assess a tax. To this extent it may be said to be an obligation imposed upon the taxpayer in favor of the state, but this obligation cannot be enforced in the courts, unless authorized by statute, before the tax is assessed in the exclusive manner provided by the act, which gives the remedy as well as the right.
The decree of the lower court is reversed, the demurrer sustained, and the bill dismissed, without prejudice to the rights of the appellee.
Reversed and Mil dismissed.
Dissenting Opinion
(dissenting).
I disagree with the majority that the present bill does not lie in equity. The act (chapter 109, Laws of 1918), if constitutional, imposes a personal obligation, it being in no sense a property tax, or, if it is a property tax, it is in .conflict with the Constitution Avith reference to assessment as provided in section 112 thereof. In my opinion section 4256, Code of 1906 (section 6887, Hemingway’s Code), is applicable here, and, if so, of course, suit may be maintained. ( If the tax is really imposed upon property or upon a business, undoubtedly the section is applicable. If the tax is not imposed upon a business or upon property, then unquestionably section 4805, Code of 1906 (section 3169, Hemingway’s Code), would come into play, and the tax could be collected by suit, but whether it can be collected by suit or not is not controlling here, because the statutory method was undertaken to be pursued, and could not be carried out because of the refusal of the appellants to comply with the law and their refusal to appear to give testimony for the benefit of the Tax Commission when summoned so to do.
“The inheritance tax itself provides a statutory method of discovery, and whether the declaration or bill was tech
The Pleadings.-
The hill alleges: That I. C. Enochs departed this life on the 18fh day of April, 1919, leaving a will and testament which is made an exhibit to the bill, and which was duly propounded for probate. In the said will the appellants Martha C. Enochs, I. C. Enochs, Jr., and E. G. Flowers-were named as executors, and duly qualified. That it became the duty of the executors to file with the Tax Commission a report of the property and its value disposed of by the said will. That in pursuance of the statute they filed a report, which is made an exhibit ta the bill, and tendered therewith the sum of nine thousand two hundred ninety-nine dollars and fourteen cents. They also filed a report showing a total value of said estate of five hundred seventy-seven thousand seven hundred forty-nine dollars and fifty-four cents, which is charged to be incorrect, and that the true value of the said estate would be between two million five hundred thousand and three million dollars. That the money tendered by the executors was received on account, but it was distinctly understood and agreed by the Tax Commission and the executors that it was on account, and not in full of the demands of the state for the inheritance tax. That the Tax Commission considered the report so filed and became and were convinced that it was a gross undervaluation, and'under the terms of the Inheritance Tax Law named an appraiser to take testimony and report back to the Tax Commission the true value of the said estate. That the said appraiser qualified and undertook to discharge his duties, and summoned the executors to appear before him and give testimony, which they refused to do. That, the refusal having-been made known to the Tax Commission, and it being unable to procure the necessary facts and testimony, it was necessary to invoke the powers of the chancery court in
It is further alleged that the value of the estate is unknown to the complainant, and that the complainant is unable to secure the same from the defendant. That the defendants, the heirs, devisees, and beneficiaries of said will and the executors thereof have full information as to the said value, and that complainant has no adequate remedy at law. That the exact amount of the said tax due is unknown to the complainant, because he does not know the exact value of the estate. The bill then alleged that the deceased, I. C. Enochs, was interested in certain corporations and business trusts and other enterprises, and prays for a discovery from the defendant under oath of a large, number of things set forth in thirty-four paragraphs of the bill in detail. The bill also prayed for a judgment for the amount found due after obtaining a discovery of said facts, and prayed for general relief.
The bill was demurred to on a number of grounds, none of them involving or presenting the jurisdiction and power of the chancery court to entertain the bill. The demurrer proceeds entirely upon the assumption that the law in question (chapter 109, Laws of 1918)" is unconstitutional, in that it conflicts with (a) the Fourteenth Amendment to the United States Constitution; (b) article 4, section 2, United States Constitution, knorvn as the Privilege and Immunities Clause; (c) as a projecting extra-territorially jurisdiction of the state and integrating into the operation of the statute property over which the state had no jurisdiction. The following sections of the state Constitution are alleged to be violated thereby: 1, 2, 14, 17, 20, 31, 32, 63, 64, 68, 69, 71, 79, 90 (clause J), 100, 112, 134, 135, 138, and 144. The chancellor overruled the demurrer and granted an appeal to settle the principles of the case.
In the chancery court there were two suits, one styled Martha C. Enochs et al. v. Duncan Thompson et al., No. 11750 of the chancery docket, and the present suit, No.
The Inheritance Tax Law.
Chapter 109, Laws of 1918, imposes an inheritance tax upon both the right to transmit property or the right to transfer, and, second, the right to receive property by inheritance or by instruments of Avriting to take effect at or after death. Section 1 of the act imposes the tax of one-half of one per cent, on the right to transfer, and provides an exemption of five thousand dollars before such tax accrues or is applied. And it is made the duty of the executor, administrator, or trustee to file with the tax commissioners a sAvorn statement, showing the full and fair cash value of the entire estate.
In section 3 of the act it is provided, among other things, that the tax imposed shall be due and payable by the executor, administrator, or trustee of the estate immediately upon notification. of the amount thereof, and if not paid within thirty days shall bear interest at the rate of eight per cent, per annum; that the said tax shall be paid direct to the Tax Commission for the use of the state’ “and shall be and remain a lien upon the estate until the same shall be paid and the executors, administrators, or trustees shall be personally liable for such tax until the same is paid.”
Section 5 of the act imposes a tax upon the right to receive property by transfer under the following provisions: First, where the transfer is under a will or by the státutes of descent and distribution. Second, when the transfer is made by deed, grant, gift, or sale without valuable and adequate consideration and in contemplation of the death of the grantor, vendor, or donor intended to take effect in
“A transfer taxable under the provisions of this act shall be deemed to take place upon the death of the creator of the said trust.”
Section 6 provides that — all taxes imposed by section 5 of the act shall be assessed by the state Tax Commission upon the full and fair value of the property transferred, in excess of the exemptions allowed, to be paid to the state Tax Commission for the use of the state “and all executors, administrators, or trustees shall be personally liable for any and all such taxes until the same are paid. . . . Said taxes shall, be and remain a lien upon the property transferred, and upon all property acquired by the executor, administrator, or trustee in substitution therefor while the same remains in his hands, until the said taxes are paid or a bond given as hereinafter provided, but said lien shall not affect any tangible or intangible personal property after it has passed to a bona-fide purchaser for value,” etc. “The heir, devisee or other donee shall be personally liable for the tax on such real estate, as well as the executor, administrator, or trustee; and if the executor, administrator, or trustee pays such tax, he shall, unless the same is made an expense of administrator by the. will or other instrument, have the right to recover such tax from the heir, devisee or other donee of such real estate.”
Sections 7, 8, and 9 provide the rates to be imposed on this class of beneficiaries.
Section 10 provides:
*386 “All taxes imposed by section 5 of this act, unless otherwise herein provided, shall be due and payable six months after the first appointed executor or administrator liable therefor shall file his bond. ... If such tax is not paid within nine months from the accrual thereof, interest shall be charged and collected thereon at the rate of eight per centum per annum,” etc.
Section 11 provides for the giving of bond by the executor or administrator to the Tax Commission and for a deferment in the payment under certain conditions of the tax.
Section IS provides for limited estates for life or less, and section 14 for contingent remainders.
Section 15 provides that when property is transferred or limited, in trust or otherwise, the interest of the beneficiaries' are to be taxed at the lowest rate within its class, and provides:
“And such tax so imposed shall be due and payable forthwith by the executors or trustees out of the property transferred.”
Section 18 provides for the deduction by the executor or administrator from the estate for the payment of the tax imposed by this act, and provides that he shall not deliver, or be compelled to deliver, any specific legacy or property subject to tax under section 5 of this act to any person until he shall have collected the tax thereon, and that he shall deduct such tax therefrom, and that such tax shall remain a lien or charge upon the property until the tax is paid, and the payment thereof shall be enforced by executor, administrator, or trustee in the same manner that the payment of the legacy might be enforced. And if such legacy shall be given in money to any person for a limited period the executor, administrator, or trustee shall retain the tax upon the whole amount.
Section 22 of the act required the executor and administrator to report to the Tax Commission within thirty days after his appointment, and to file an inventory under
Section 23 provides that the chancery clerk shall, within thirty days from the granting of letters of administration, notify the Tax Commission of the name of the decedent, executor, administrator, and trustee and other information.
Section 24 provides for the reappraisement of certain estates when the Tax Commission has considered it to be erroneous or incomplete, and has power to summon the executor, administrator, or trustee to appear before them, and provides that, if such person refuses to appear or refuses or neglects to answer the question propounded, the Tax Commission may appraise or appoint a person to act as appraiser of such estate, and that such appraiser, being-sworn, shall forthwith give notice to the executor, administrator, or trustee, and all persons known to have, or claim, an interest in the estate or property to be appraised, of the time and place of such appraisal, and shall appraise the property at its cash value, and for this purpose is authorized to issue subpoenas and to take evidence concerning the estate or property and its value.
Section 25 provides that, if any executor, administrator, or trustee, chancery clerk, or other person, shall neglect or refuse to file as required by this act any inventory or statement with the Tax Commission, or to furnish any other information required by this act to the commission as required, the State Tax Commission may apply to the chancellor of the county of the delinquent person, and that on notice being given the chancellor may hear the matter and examine such person under oath, and, if such-refusal has been adjudged contempt, may commit the offender to jail, there to remain until he submits to file the inventory or statement or to furnish the information required, or to obey the subpoena, “or such judge may make any other order in the premises as the circumstances of the case may seem to him to require.”
Section 27 prohibits any bank or corporation or association from the transferring of stock by any executor, administrator, or trustee of any bonds or stock, and makes such bank or corporation or company liable for the tax imposed by this act in case it violates this section.
Section 28 provides that claims of creditors which by the terms of their contracts are to be paid at or after death shall be subject to the tax imposed in this act.
Section 29 provides that the final account of an executor,' administrator, or trustee shall not be allowed until the taxes imposed by this act are paid, or until the judge finds and certifies that no taxes are due.
Section 30 provides that, except as otherwise provided, every net estate, inheritance, devise, etc., shall be; appraised at its full and fair cash value as of the date of the death of the decedent.
Section 34 provides that, if any part of the act is unconstitutional, that fact shall not affect the validity of any other part of the act.
The other pertinent statutes to be construed in pari materia are section 4256, Code of 1906 (section 6887, Hemingway’s Code), section 4805, Code of 1906 (section 3169, Hemingway’s Code), Avhich have been set out in full in the majority opinion, and section 3488a, Hemingway’s Supp. (chapter 238, Laws of 1918), which reads as follows :
“The attorney-general and the several district attorneys are hereby authorized to institute or defend any suits arising out of any act or order of the Tax Commission or the Railroad Commission affecting the laws and revenues of the state, and are also clothed with such other authority as is conferred upon them at common law.”
Section 196, Code of 1906 (section 3484, Hemingway’s Code), reads as follows:
“The attorney-general shall also represent the state in person or by his assistant, as counsel, in all suits against*389 the state, in other courts than the supreme court, at the seat of government, and he shall, in like manner, act as counsel for any of the state officers, in suits brought by or against them in their official capacity touching any official duty or trust, and triable at the seat of government; and he may pursue the collection of any claim or judgment in favor of the state outside of the state, or may, with the consent of the Governor, employ counsel to assist in the collection thereof.”
Principles and Atjthoeities Applicable.
I submit that, under the provisions of the Inheritance Tax Law as above set forth, the suit ought to be maintained. The essential feature of the bill upon which the jurisdiction is sought to be predicated is the right of discovery after the proceeding contemplated by statute had failed, and after obtaining the facts by discovery for them; the court to hear the whole proceeding on the principle that the court, having jurisdiction for one purpose, could dispose of the whole controversy. The statute itself gives the right to obtain by a statutory discovery the information from the appellants which it was their duty to furnish under the law, but Avhich they failed and refused to do, evidently upon the theory that the law was unconstitutional.
In the case of Memphis v. Home Ins. Co., 91 Tenn. 558, 19 S. W. 1042, the Tennessee supreme court upheld the principle contended for; the suit being in that case by the state for the use of the city of Memphis and involving the principle of discovery in aid of taxation. At page 564 of the official report (19 S. W. 1044) the court says:
“Discovery is the proper remedy in such a case. Yet the complainant might as appropriately and more speedily collect its revenues by a proceeding directly against the corporation for a sufficiency of the dividends which the law . . . requires it to retain for the payment of taxes on the shares.”
In the case of First National Bank v. Hughes et al. (C. C.), 6 Fed. 737, it was held by the federal court that a
“Now if the courts are thus careful to assist private persons in procuring evidence for the maintenance of their individual rights, why should the same power not be exerted in behalf of the public? Is the state, which represents the body politic, entitled to less consideration than its humblest citizen? No state can maintain its existence without revenue — a burden imposed by law on every one for the benefit of all. This burden ought to be equal and uniform, and the legislature requires the officers charged with the duty of making assessments for the purpose of taxation to enforce this just and beneficient rule. And among other powers conferred to enable them to do so, auditors are authorized to summon witnesses and examine them on oath. These enactments are reasonable, necessary, and just.”
In Bomer Bros. et al. v. Warren County, 103 Miss. 343, 60 So. 328, this court upheld the right of discovery by the county, which had leased sixteenth section school land to a lessee, who had sold the timber on the land to another, and this vendee to a third party, and all the parties had cut and wasted the timber on said land, where the county was unable to ascertain the quantity and kind of timber on the land cut by each of the parties; that fact being exclusively Avithin the knowledge of parties defendant. And the court further held that having obtained jurisdiction for the purpose of discovery upon which the equity jurisdiction Avas obtained, the court should determine the whole controversy. In that case the county had the right to recover for the timber, but the amount could not be determined without discovery. The principles of this case ought to be applied to the present controversy. Under
In the case of National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N. E. 973, Ann. Cas. 1912B, 430, the supreme court of. Illinois in dealing with a similar question held that the state had a vested financial interest in the estate of the deceased under its Inheritance Tax Law, and that it could compel a discovery of the contents of a safety deposit box leased by the decedent, in which was kept various papers, etc., and the fifth syllabi announced the following rule:
“The state has a vested financial right in the estate of every decedent in this state which is subject to the payment of an inheritance tax, and such right is equal in degree to that of the personal representative, the heir or devisee of the decedent, and it vests at the same time that the interest of the personal representative, heir or devisee vests.”
In the sixth syllabi it was said: “State has a right to know what property is in a safety deposit box of deceased lessee. .Where a lessee of a safety deposit box or safe dies leaving property therein, the state, by its proper representative, has the right to be advised as to the amount and character of the property and of the time it will be surrendered by the safety deposit company to the personal representative, heir or devisee of the decedent, in order that it may know whether the succession to such property is subject to an inheritance tax.”
The suit in that case, as well as the one before the court now, was brought by the attorney-general for the purpose of obtaining the information. It seems to me to be sound in principle.
In Craig v. Doherty, 61 Miss. 96, this court held that an administrator was entitled to maintain a bill of discovery to find out the assets of the estate. And in Mississippi Compress Co. v. Levy, 83 Miss. 774, 36 So. 281, it was held that a bill of discovery would lie against the compress company and a railroad company to discover the
If these principles are sound, and if section 4805, Code of 1906, and section 24 of the state Constitution are to be given any meaning whatever, then the state’s right to discovery in this case is clearly established.
In Smith v. Smith, Adm’r, 92 Va. 696, 24 S. E. 280, the Virginia court held that a bill of discovery is the proper remedy to be pursued by an administrator against a defendant who has in his possession choses in action or other personal estate of the decedent, the amounts, dates, and character of which are unknown to the complainant, and further, held that upon the filing of the bill for discovery, the court being in possession, it may retain it and make an end of it.
It was held in Millsaps v. Pfeiffer, 44 Miss. 805, and Kearney v. Jeffries, 48 Miss. 357, that the court was not deprived of its jurisdiction to entertain a bill of discovery because the law had provided statutory methods of discovery in the common-law courts, and had largely removed the necessity to resort to equity for that purpose.
In State ex rel. Morgan, Assessor, v. Building & Loan Ass’n, 151 Ind. 502, 51 N. E. 1061, the Indiana court held that the laws of the state make it the duty of the county assessor to assess all property that had been omitted from taxation, and that a writ of mandate will lie to compel a building and loan association to permit the court assessor to examine its books for the purpose of determining whether any of the stock of such association has been omitted from taxation.
In State v. Workingmen’s Ass’n, 152 Ind. 278, 53 N. E. 168, it was again held that legal process could be used for the purpose of compelling the production of property for taxation.
I submit that, where the statutory method laid down for the collection of a tax is inadequate or ineffective for the purpose of collecting the tax, then an action will lie in behalf of the state to collect same by suit, and the state may invoke the aid of the courts even though the statute contemplated that the statutory method would be pursued. And that is the controlling question in the case before us, and it is the question seemingly entirely overlooked in the majority opinion. None of the cases cited in the majority opinion are applicable to the suit before us. For in none of them had the statutory method been pursued without results. The case of State v. Tonella, 70 Miss. 701, 14 So. 17, 22 L. R. A. 346, relied on, was a suit for ad valorem taxes which had not been assessed according to the statutory method, and which under section 112 ,of the Constitution must be assessed in order to conform to the requirement of assessing by uniform rules. If the Constitution did not enter into the matter of the assessment of ad valorem taxes then clearly section 4256, Code of 1906, would be applicable, because that section provides that the suit may be maintained whether the tax has been assessed or properly assessed or not, and that on the trial the assessment roll shall be only prima-faoie evidence. The same is true of Board of Supervisors v. Johnston (Miss.), 7 So. 390, and Johnston v. Puffer Mfg. Co., 111 Miss. 240, 71 So. 377. Those were where suits were maintained for ad valorem taxes, which were, of course, governed by the Constitution, and as to them section 4256 of the Code was ineffective, while in this case I desire to call the attention of the bar to the fact that the court distinctly recognized the principle of discovery in aid of facts to make an assessment to be entirely different from a suit to assess and
“It will be noted that this is not a bill seeking a discovery of facts upon which the revenue agent might proceed to have property assessed for the back taxes in the usual way and through the properly constituted authorities. If the bill was of that nature, it would present a quite different case from the one we are now called upon to determine.”
In State v. Piazza, 66 Miss. 426, 6 So. 316, there had been no effort made to collect the tax imposed by the statutory method. If there had been and that method had been ineffective, I doubt if the court would have held that suit would not lie. However, in my opinion, that case was overruled necessarily in the announcement of the court in Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190.
I am surprised to see the majority cite the case of Hattiesburg Gro. Co. v. Robertson (Miss.), 88 So. 4, as an authority in this case. In that case the point here involved was specifically reserved. There was some division of opinion among the members of the court as to whether the suit would lie, but the case had proceeded upon an agreement Avhich was regarded as a confession of facts sufficient to dispense with the statutory method. If it had been necessary to so hold, the case would probably have been affirmed by a divided court sustaining the proposition that the suit would lie. However, the opinion itself does not sustain the position that is now assumed for it. The writer of that opinion said:
“The .only method provided by the statute for ascertaining a person’s income is for a return thereof to be made to the auditor under oath by the person himself either voluntarily or under compulsion, and it is on this return alone that the amount of tax due on his income by the person who made the return is to be computed.” (Italics mine.)
This opinion nowhere states or indicates that a bill of discovery Avould not lie to compel the disclosure of the
In Reed v. Creditors, 39 La. Ann. 115, 1 So. 784, the Louisiana court upheld the right to resort to the court for the collection of taxes, where the rights of the state were involved and the statutory method had not been effective. At page 786 of the Southern Reporter report (39 La. Ann. 121), the court said, quoting from a former case (State ex rel. Askew v. Southern S. S. Co., 13 La. Ann. 497) :
“It appears to us that the right to collect the taxes presupposes a right to stand in judgment in suits of injunction, and even to institute an action, in the name of the state, whenever the taxes cannot be otherwise collected. It is true that the law has indicated a more summary proceeding than suit for the collection of the taxes. Still, as' the sheriff is charged with their collection, for which he is compelled to give bond, we can see no sufficient reason why he should not be permitted to use the name of his principal in a direct action, instead of seizing property, if it was evident that the seizure will occasion an injunction or other unnecessary delay.”
In State v. Meyer, 41 La. Ann. 436, 6 So. 590, the Louisiana court held:
“If it be true that the state has no mode of collecting her taxes except by summary expropriation of property without suit, it is equally true that she has an absolute right to collect in that mode; and for the proper vindication of this right the courts are open to her as to all her citizens.
“Hence, when the tax collector is thwarted in his efforts to seize and sell the property by the illegal acts of the tax debtor, in concealing and withholding the property so that it cannot be reached, the legislative department violates no constitutional provision when it provides a judicial remedy by which the debtor may be compelled to produce and deliver the property in order that the collect- or may perform his constitutional right and duty.”
“But it is obvious that the proceeding here involved is not a suit for taxes, nor is it a suit employed as the means of enforcing payment of taxes. On the contrary, the collector is endeavoring to employ the method of summary expropriation without suit, prescribed by the Constitution. It is the clear duty of the tax debtor either to pay his taxes or to point out or deliver the property assessed, in order that the collector may advertise and sell it in the constitutional mode. He refuses to do either. This statute simply authorizes the collector to invoke judicial assistance to compel the delinquent to deliver the property assessed. . . . It would, indeed, be an anomalous state of affairs if a delinquent taxpayer might say to the collector, ‘You cannot sue me because the Constitution requires you, without suit to seize and sell the property assessed; and you shall not seize and sell the property assessed because I have it in my possession, so concealed that you cannot find it, and I refuse to produce or deliver it.’ . . ,
“If the exercise of this right is illegally thwarted and obstructed by a delinquent tax debtor, she is clearly entitled to some remedy for such a wrong, and it would be passing strange if her own courts, which she so jealously holds open to every citizen for the .vindication of legal rights, should be hermetically sealed against her.”
To the same effect is Succession of Mercier, 42 La. Ann. 1135, 8 So. 732, 11 L. R. A. 817.
In Oakland v. Whipple, 39 Cal. 112, it was held that, if a tax has been duly assessed, the owner of the property becomes personally liable for it. And the remedy is not confined to a seizure and sale of it, nor to the enforcement of the lien on it by action.
In Greer v. Covington, 83 Ky. 410, 28 S. W. 323, it was held that a remedy to collect tax by suit would not be held
In Webber Lumber Co. v. Shaw, 189 Mass. 366, 75 N. E. 640, it was held that, where an injunction was sought to restrain a collector of taxes, where one who had conveyed his property on which the tax was imposed, a suit can be maintained against the purchaser for the tax.
In Worthen v. Quinn, 52 Ark. 82, 12 S. W. 156, it was held that, when a collector has exhausted his remedy by warrant for the distraint to his own personal property, he may resort to his remedy by suit to collect it. And if the goods were sold by the person charged with the taxes as the lien attached they are liable to seizure in the hands of the vendee for the satisfaction of the lien. And if he so sells them and the collector cannot realize the taxes other-Avise, he may maintain a suit in equity against the vendee, and charge the proceeds of such sale with the payment of the tax.
In Central Hotel Co. v. State (Tex. Civ. App.), 117 S. W. 880, it was held that a personal suit for taxes and a foreclosure of a lien on land is maintainable, citing the case of City of Henrietta v. Eustis, 87 Tex. 14, 26 S. W. 619.
The United States supreme court has spoken upon the proposition also in the case of U. S. v. Chamberlin, 219 U. S. 250, 31 Sup. Ct. 155, 50 L. Ed. 204, in which opinion Mr. Justice Hughes says:
“If the statute creates an obligation to pay the tax, and does not provide an exclusive remedy, the action must be regarded as Avell brought.
“At common laAV, customs duties Avere recoverable by the Crown by an information in debt or an exchequer information in the nature of a bill in equity for discovery and account. These informations rested upon the general principle That in the given case the common law or the statute creates a debt, charge, or duty in the party personally*398 to pay tbe duties immediately upon tbe importation; and that, therefore, tbe ordinary remedies lie for this, as for any other acknowledged debt due to tbe Crown’ ” — citing United States v. Lyman, 1 Mason, 499 Fed. Cas. No. 15,647; Comyns’ Dig. (title, Debt A, 9); Atty.-Gen. v. Stranyforth, Bunbury, 97 ; Atty.-Gen. v. Weeks, Bunbury, 223 ; Atty.Gen. v. Jewers, Bunbury, 225 ; Atty.-Gen. v. Hatton, Bunbury, 262.
Applying these principles and considering these statutes, it seems inescapable that tbe judgment ought to have been affirmed and tbe cause remanded so far as the ground dealt with in this opinion is concerned, and that this court ought to proceed to decide tbe constitutionality of tbe statute. Tbe Legislature has expressly authorized tbe attorney-general to institute or defend suits arising out of any act or order of tbe Tax Commission or of tbe Railroad Commission affecting tbe laws and revenues of tbe state, and gives him such authority as was conferred at common law upon the attorney-general.
Under this act taken in connection with sections 4256 and 4805, Code of 1906, and tbe several provisions of the Inheritance Tax Law above set forth, it is certain that the bill will lie. The inheritance tax statute makes tbe tax a lien upon the property inherited or transmitted, it malees the tax a personal obligation on tbe heir, legatee, devisee, or donee, and also a, personal obligation on tbe executor or administrator. Tbe law requires them to file a report within thirty days with tbe Tax Commission, giving a correct, true, and accurate inventory of tbe actual cash value of the property.
Section 10 of tbe act provides expressly that- the tax, unless otherwise provided, is due and payable at tbe end of six months from tbe first appointment of an executor or administrator. This provision, taken in connection with the provisions making the tax due when assessed by tbe Tax Commission on the report of the executor or administrator, malees it plain that tbe tax cannot be deferred in its maturity longer than six months from the appoint
In my opinion the majority has given too narrow and restricted an effect to section 4256, Code of 1906. The act provides that every lawful tax levied or imposed by the state 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. The manifest purpose of the legislature in enacting this act was to give the state a right of action wherever it had a right to taxes. So far as the controversy before us is concerned, the tax not being a tax on property, the Constitution does not affect it, and the fact that it is not assessed becomes wholly immaterial, even independent of the fact that the assessment was defeated by the act of the defendants.
This statute is a remedial statute as applied to this controversy, and was so held in Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190. Even if this section has no application, section 4805 comes into play, and gives the state a remedy and the same remedy that the legatee or devisee would have against the executor or administrator. It would be incredible to hold that the executor or administrator could defeat a suit by an heir, legatee, or donee, and as the state’s rights flow from the same act or acts as the rights of the heir, legatee, devisee, or donee, it under this section has the same remedy it would have were it an individual. Certainly the heir or legatee could maintain a bill for a discovery.
Even if I am incorrect on the propositions which I have discussed, the bill prays for general relief, and the statute in express terms directs the Tax Commission to proceed to the chancery court for aid in case it cannot introduce or discover from the witnesses and parties the information necessary for its action. And the bill ought
There has been considerable doubt in the public mind about the constitutionality of the act. I do not mean to express an opinion on the constitutionality of the act, because the majority of the court has refused to do so. But when we consider the fact that the administration of estates cannot be wound up unless the tax is paid; and when we consider the fact that the executor and administrator become personally liable if they do not carry out the terms of the act and pay the tax; and when we consider the fact that no bank or corporation can deliver any stock after the death of the decedent without becoming personally liable for the tax in case the act is constitutional; and considering the further fact that the legislature is now in session, and could apply its judgment to the question after the court had decided.it; and in consideration of the further fact that the legislature ought to know whether this act is constitutional in determining its tax levies and appropriations; and in view of the further fact that the entire public is vitally interested in the question— I think there is, and should be, an exception to the general rule that the court will not decide a question and especially a constitutional question, unless it is necessary for a disposition of the cause. The rule is not jurisdictional. It is a mere rule of expediency. The chancellor sent the case here for the express purpose of settling the principles of the case on a bill and demurrer raising solely the question of the constitutionality of the act. In the argument it was said by one . of the counsel that the suit would not lie, and thereafter the court of its own accord raised the question, and addressed questions to counsel to be answered along this line. The question had not been