85 Miss. 772 | Miss. | 1904
delivered the opinion of the court.
The first of the above-styled cases is here on appeal from a judgment of the circuit court of Hinds county, the case having been tried there on certiorari to the State Railroad Commission as assessors of railroads. The purpose of the writ was to bring before the court the record and proceedings of the commission in back-tax assessing and classifying the Gulf & Ship Island Railroad Company for each of the five years from March 1, 1898, to March 1, 1903, and to have judicially ascertained whether the commission had not transcended its powers in back-tax assessing and classifying the said railroad, and classifying it as a road claiming exemption from state supervision under maximum and minimum provisions in its charter, and assessing and classifying it for the payment of the privilege tax of $10 per mile for each of the years named, in addition to the privilege tax paid by it during each of said years as a railroad of the third class. The circuit court affirmed the judgment of the commission, and ordered a writ of procedendo to be issued.
The second of the said cases is here on appeal from the chancery court of Hinds county. It was heard and decided on demurrer interposed by the Yazoo & Mississippi Valley Railroad Company, appellant here and defendant below, to a bill filed by Wirt Adams, state revenue agent, in which complainant set
In the consideration of the first case we are confronted in limine with the contention that the court upon certiorari cannot review the finding of fact by the commission, because the statute creating the remedy by certiorari (Code 1892, § § 89, 90) declares that the court shall be confined to the examination of questions of law arising or appearing on the face of the record and jn’oceedings, and because the statute gives the commission no authority to sign a bill of exceptions, and, in fact, no bill of exceptions was taken. The reasons assigned may be conceded, but the conclusion does not follow. Certiorari is
A mere mistake of fact by the commission will not be corrected by certiorari; but a mistaken finding of fact induced by an error of law apparent upon the record, the finding of a fact contrary to law, or the making of an order beyond the cognizance and power of the commission, can and will be corrected by the superior courts, in the exercise of their supervisory and corrective power, through the writ of certiorm’i. It is the peculiar province of the writ of certiorari to correct errors of law apparent upon admitted or established facts. 4 Ency. Pl. & Pr., 11. It has been held by this court that evidence may be heard in the circuit court in order to make manifest error of law committed by the inferior tribunal. Robinson v. Mhoon, 68 Miss., 712 (9 South. Rep., 887).
The remaining questions passed upon in this opinion, and upon which the decision turns, are common to both cases. They will therefore be considered and decided together. It is contended by appellants that the railroad commission was without. power or authority to back classify these railroads under sec. 66, ch. 5, p. 23, Acts 1898, and classify them as railroads of the third class, and of the first, second, and third classes, respectively, claiming exemption from state supervision under maximum and minimum provisions in their charters. That without such classification the appellants were not liable for the
It therefore becomes necessary to analyze and construe ch. 34, p. 29, Acts 1894, in order to determine whether the power contended for is thereby given, either in express terms or by necessary implication. If given by this act at all, it must be found in either sec. 2, sec. 3, or sec. 4. It cannot be found in sec. 2. The purpose and entire scope of this section is to arm the revenue agent with power to sue for all moneys due the state, or any county, municipality, or levee board, for any cause whatever, and especially for all past due and unpaid taxes whatever. The right of the revenue agent to sue is not the thing controverted here, but the right of the railroad commission to do an act which is an indispensable prerequisite to a suit by him.. The latter is not to be inferred from the mere giving in general terms to the revenue agent of the right to sue for all past due and unpaid taxes. The power to back classify railroads for privilege taxes is clearly not to be inferred from sec. 3 of the act, for that applies only to back assessments by the tax collector and the boards of supervisors of the several counties. If the power exists at all, it must be found in sec. 4, p. 30, which reads as follows: “If the property which the revenue agent discovers to have escaped taxation shall belong to any railroad or other corporation which, under -the law, is required to be assessed by the state railroad assessors, the revenue agent shall give the notice required herein to said railroad assessors, and they shall give the required notice to the company or corporation. At their next meeting, after giving
It is contended for appellee that it is the evident purpose of the statute to make the powers of the railroad assessors for back assessment as extensive as the powers for back assessment conferred on the collectors and board of supervisors by sec. 3, and that the use of the words, “should the revenue agent discover that any person, corporation, property, business, occupation, or calling has escaped taxation by reason of not being assessed, it shall be his duty to give notice,” etc., indicates that the power is given to the tax collector and board of supervisors to back assess or back classify for privilege taxes. We cannot adopt this construction. It is evident, notwithstanding the general terms employed — “person, corporation, property, business, occupation, or calling” — that this section has reference solely to ad valorem taxes on property. Certain of the terms employed are mere redundancies of expression, and are to be restricted by the manifest purpose of the section. The section cannot embrace ordinary privilege taxes, because they do not need to be assessed, and never are assessed, and because the work of classification for privilege taxes, except in the case of railroads, is always done by the legislature, and is never committed to the tax collector or board of supervisors. Back classification for ordinary privilege taxes is not necessary to enable the revenue agent to collect past due privilege taxes, for the reason that the right and authority of the revenue agent to sue for them is perfect without it. The use of the words “assessment,” “property,” “real estate,” “personalty,” negatives the idea that back classification for privilege taxes is contemplated in sec. 4. We
Appellee undertakes to escape the force of this reasoning by contending that the franchise here sought to be taxed is property; that a privilege tax is ultimately a tax upon the use of the property, and is, in effect, a tax upon the property. We do not concur in this, but hold that the tax sought to be collected is a privilege tax proper. But if appellee’s contention in this regard were correct, and the tax sought to be collected were indeed essentially a property tax, still the commission would be estopped now to back assess this franchise for a property tax. It is a matter of which this court will take judicial notice that these railroads were assessed for ad valorem taxation, for the years 1898 to 1903, agreeably to provisions of Code 1892, § 3877, and that they have paid the taxes assessed against them. It was by the statute made the duty of the railroad assessors, in fixing the assessments of the said railroads, to take into consideration the value of the franchise; and by the franchise, in this connection, we understand the right of the railroad companies to operate their railroads in the manner, on the conditions, and with the powers prescribed and granted in their several charters. They are conclusively presumed to have taken the value of the franchise into consideration in fixing the assessment of these railroads for the years in question, and this cannot now be questioned in any tribunal. It is res adjudicaba. It has been expressly adjudicated by this court that, as to all other matters (than exemptions) in the assessment and valuation of the property of railroads, the judgment of the railroad assessor is conclusive. Railroad Company v. Adams, 81 Miss., 105 (32 South. Rep., 937). See also, specially, Railroad Company v. Adams, 77 Miss., at p. 778 (25 South. Rep., 355), and note authorities there quoted.
The franchise of these railroads having been assessed for ad valorem taxation (and for this, in the absence of fraud and the like, as indicated, we have a conclusive presumption of law), it is not now in the power of the railroad assessors to single out some constituent element of their franchise, or some mere incident thereto, and impose an ad valorem or property fax upon it. This would be double taxation and violative of the constitutional provision that taxation shall be equal and uniform. It would also, as has been suggested, violate the constitutional mandate that property shall be taxed according to its value, in this — to wit, that a property tax upon railroad franchises at the rate of $10 per mile, without regard to varying conditions, the volume of business, the earning capacity, or the value of the- several roads upon which it is levied, would be a purely arbitrary tax, not equal and uniform and not according to value.
If the back tax now sought to be collected of the railroad companies which are appellants in the cases now being considered can be upheld at all, it must be upon the ground that they are privilege taxes in the ordinary acceptation of the term. We have already reached the conclusion that they cannot be allowed and collected, because no provision has been made by the legislature for the back classification of railroads with a view to the imposition and collection of privilege taxes for past years. But there is another insuperable objection to the back classification of the railroads and the collection of the additional privilege tax of $10 per mile for the years in question. The power conferred upon the railroad commission by sec. 66, oh.
It is not necessary to the determination of these cases that we should pass upon the questions raised,' and argued upon each side with such wealth of learning and cogency of reasoning, as to the application to these cases of the constitutional principles that the state shall not pass any law impairing the obligation of contracts nor deny to any person within its jurisdiction the equal protection of the laws.
Reversed, and judgment here in each case for appellant.
Judge Calhoon, owing to illness, was off the bench when this case was argued, submitted, and decided. W. M. Cox, Esq., a member of the supreme court bar, was duly appointed, and presided not only in this case, but generally in the absence of Judge Calhoon.