78 Miss. 97 | Miss. | 1900
delivered the opinion of the court.
In this case we are compelled to decide whether the act of March 8, 188.8, entitled, “An act to equalize assessments in the different counties in the state” (Laws 1888, p. 24), is valid, under the constitution of 1869. Section 21, art. 5, of that constitution is this: “A sheriff, coroner, -treasurer, assessor and surveyor shall be elected in each county by the qualified electors thereof, who shall hold their offices for two years, unless
The words at the conclus'iofi of section 20, “tobe ascertained as directed by law,” can warrant no such system. They do not mean that the legislative department is to perform the judicial function of ascertaining values. They do not mean that the legislature may assess property. The constitution had already provided for an assessor, whose duties- were known through the entire history of the state. The meaning is that the legislature may enact laws by which values are to be ascertained, not that it shall ascertain them. This act is a general act, affecting the whole state, not a local act, for. the benefit and protection of particular districts. The distinction is plain between the two classes of legislation, and has been often drawn by the courts in many states and in this state. But, whenever the distinction has been drawn in our own appellate court, it shows that such legislation for localities would not be tolerated in a general scheme of taxation affecting the whole people. In Daily v. Swope, 47 Miss., on page 381, Judge Simrall says: “The convention sought to devise a rule by which taxation, imposed for the general and ordinary expenses of the state and county administrations, should operate equally in all parts of the state. No discrimination shall be made which would disturb uniformity, and, when the rate has been determined, the assessment shall be on the ad valorem principle.” In Vasser v. George, 47 Miss., 721, the same great judge, in considering the same section 20 we are now on, and still while drawing the distinction between general taxation and district taxation for local benefit arising from local exigencies, says: ‘ The limitation upon the power in that section only applies and governs taxes levied for the usual, ordinary, and general purposes of the state, county, and incorporated city or town, and does not include special assessments for
Reversed.1, and demurrer overruled, and sixty days allowed for answer. '
After the delivery of the foregoing opinion, Mo Willie da Thompson, for appellee, presented the following
SUGGESTION OP ERROR:
We desire, with much deference to suggest error in the decision reversing the decree of the court below in the above cause. The effect of the curative act of 1890 upon the assessment in question is entitled to grave consideration, but, before referring more particularly to the provisions of that act, we call the court’s attention to an apparent discordance between the decision in this case and several others which have never been in terms overruled.
In the case of Bank v. Worrell, 67 Miss., 47, it was held that the act of 1888, relieving banks of ad valorem taxes on payment of a designated privilege tax, was constitutional, and that the real estate of a bank, bought with its funds, was exempt under such legislation from ordinary ad, valorem taxation.
Again, in Bank v. Adams, 74 Miss., 179, the same act was upheld, this court holding that the payment of the prescribed privilege tax exempted the property of a bank from ad valorem taxation.
In the case of Adams v. Railroad Co., 77 Miss., 291, the legislation subjecting railroad companies to privilege taxes in lieu of ad valorem taxes is. relied on as a constitutional exercise of power, although the payment of such privilege taxes was to operate as an. exemption from all ad valorem taxes, and the opinion in that case denied the authority of the legislature to grant any exemption from taxation. The taxation from which there was no power to grant an exemption was certainly the taxation contemplated by the constitution— i. e., equal and uniform taxation according to value. The idea that by calling the privilege tax a commutation tax the power of the legislature was extended, cannot stand the test of criticism. It is equivalent to saying that the legislature may do indirectly what it cannot do directly under the constitution, and to sanction this legislation we are forced to look at the concluding words of the provision touching the equality and uniformity, and its proportion to value, “a value to be ascertained as directed by law,” and recognize those words as committing to the control of the legislature the method of ascertaining such value.
The act entitled, “An act to authorize the equalization of land assessments,” approved February 24, 1890, was mani
The act imposed on the chancery clerks throughout the state the duty of giving notice, published for thirty days previous to the August meeting of the boards of supervisors, that all persons feeling aggrieved “at the present land assessment” would be heard by the board at that meeting, and fully empowered the boards to equalize assessments, granting relief from overvaluations where it might be proper to do so. The act further directed the auditor of public accounts to furnish the clerks printed forms for the use of persons who might apply for relief, required the person seeking relief to make oath to his application, and provided that the assessments in the various counties, after being so equalized, should be ‘ binding and conclusive.” Laws 1890, pp. 19, 20, 22.
As the court found it necessary to pass on the constitutionality of the act of 1888, we assume that the other objections to appellee’s title were considered without merit, and we therefore treat the bill as presenting the single objection that the act of 1888 was unconstitutional. It will be noticed that the bill itself shows that the land was regularly sold to the state for taxes in 1892 and included in the collector’s list evidencing the sales of that year. It further shows that the state conveyed the land by patent to the appellee in 1898. ’ The affirmative showing of the bill is unaccompanied by any averment of an application to the board of supervisors for the correction of the assessment of this tract of land, nor of any action of the board in respect to the assessment of the same, nor any appeal from such action.
Inasmuch as the act of 1890, by its own terms, gave notice
• It is not necessary for the appellee to rely even upon this safe presumption, for, by the law in force at the date of the sale (code 1880, § 526), the list of lands sold to the state, which, by the averments in the bill, includes this tract, is made “prima facie evidence that the assessment and sale were legal and valid. ’ ’
As pertinent to the question in ha,nd, we notice the following decisions of this court:
Taxpayers failing to appeal from an order of the board of supervisors approving an assessment are concluded thereby. Code 1892, §§ 80, 3793; Investment Co. v. Suddoth, 70 Miss., 416. Equity has no jurisdiction to revise assessments in the absence of fraud or mistake. Brooks v. Shelton, 47 Ib., 243. In the absence of proof as to when an assessment roll was returned, the tax deed or duly certified list of land sold to the state will raise the presumption that it was at the time required by law. Grayson v. Richardson, 65 Ib., 222; Morgan v. Blewitt, 72 Ib., 903. A meeting of a board of supervisors not affirmatively shown to have been illegal is presumed to have been legal. Brigins v. Chandler, 60 Ib., 862; Corburn v. Crittenden, 62 Ib., 125. Although the approval of an assessment roll by the board of supervisors was at a time when there could be no regular meeting, in the absence of evidence to the contrary it will be presumed that it was at a special meeting
delivered the opinion of the court on suggestion of error.
Our regard for, and deference to, the opinion of learned counsel for appellee have made us re-examine this case with great care.. In the act under consideration there • appears no legislative purpose to have an assessment for taxation according to value. On the contrary, the confessed purpose is not to do so, but to have it within two limits of money value fixed by the will of that body, according to arbitrary and artificial groupings. Whatever the actual value may be, even if it may be $50 or $100 per acre, the assessor is limited to a maximum valuation of $20, $16, $12, $10, or $8, according to class by quality, and this cannot consist with the constitution of 1869. In re Taxation of Mining Claims, 9 Colo., 638, s.c. 21 Pac. 476; Cheshire v. Berkshire Co., 118 Mass., 389; Assessment Board v. Alabama C. R. Co., 59 Ala., 556; Williams v. Bettle, 51 N. J. Law, 517, s.c. 18 Atl., 750. The cases referred to by counsel from our own reports have no pertinency to the question we are now considering. Bank v. Worrell, 67 Miss., 56, s.c. 7 South., 219, was on the privilege tax act (Laws 1888, p. 16), which put a privilege tax on banks, fixing- the sums according to capital stock. It simply upheld the power to put a privilege tax on a business, and to exempt the property of that business from all other tax. The court said: “The legislature may select the subjects of taxation, and everything not designated as taxable is exempt for the time being. The subjects of taxation may be classified at the discretion of the legislature, and, if all of the same class are taxed alike, there is no
The suggestion of error is overruled.