73 So. 871 | Miss. | 1916
Lead Opinion
delivered the opinion of the court
There is one question raised by this record, which, in our opinion, is decisive of this appeal, and we will consider no other point raised by the briefs of counsel. The case was considered and decided by Division A, and the opinion then rendered will he found reported in 110 Miss. 859, 71 So. 9. After this opinion was rendered counsel for appellee filed a motion, asking that the judgment rendered in response to the opinion he set aside and vacated, and, for reasons satisfactory to Division A, this motion was sustained, and the record was then submitted to the court en banc, on briefs, and this opinion is therefore the opinion of the court sitting en banc.
The determinative question referred to in the beginning of this opinion is this: Is chapter 239, Laws of 1908, violative of section 112 of the state Constitution1? The land involved in this suit, it is admitted, was assessed under that act of the legislature, and this action was instituted to confirm a tax title obtained by virtue of a tax sale under the authority of an assessment made under the aforementioned chapter 239. Section 1 of said act authorized the board of supervisors of Lincoln county “in its discretion, at its regular meeting in April, 1908, to order an .assessment of the lands of the county to be in lieu of the last . . . assessment of lands therein.” The board of supervisors, in' pursuance of the authority thus granted, ordered a special assessment of the lands of the county in lieu of the regular theretofore made in 1906 under the general laws of the state, and the land in controversy in this suit was sold for the nonpayment of the taxes so assessed.
Without copying into this opinion section 112 of the Constitution, we will refer to the language of the section believed to be pertinent to the law of this case. The first sentence of the section commands that “taxation shall be uniform and equal throughout the state.” The third sentence of the Constitution contains this mandate: “Property shall be assessed for taxes under
It seems that a mere casual reading of the section in point would convince one that the act of the legislature (chapter 239, Laws of 1908) is in direct and palpable conflict with section 112 of the Constitution; at least we so believe; and the judgment of the chancery court of Lincoln county so holding is approved.
Affirmed.
Dissenting Opinion
(dissenting). As I understand the majority opinion, my brethren strike down chapter 239, Laws of 1808, for the sole reason that it violates section 112 of the Constitution. The two sentences quoted in the majority opinion as being contravened by the statute in question are the following:
“Taxation shall be uniform and equal throughout the state. . . . Property shall be assessed for taxes under general laws, and by uniform rules.”
While the majority opinion quotes the first sentence as being in point, it is not stated how and in what manner a new assessment for Lincoln county would possibly violate either the uniformity or equality guaranteed by the Constitution. The reasoning of my Brethren is founded upon the assumption that the statute under review is a special and not a general law, and that any special law “for the assessment of taxes” violates “both of the rules prescribed by the Constitution.” The only controversy or possible . doubt about the constitutionality of this act can arise, and can only arise, from the interpretation of the words, “property shall be assessed for taxes under general laws.” 'What then is the meaning of this language as employed by the framers of our organic law? What is the object sought to be attained by this sentence? In my judgment this language does not forbid a special reassessment or new assessment of property in any county, whose assessment rolls prove to be erroneous^ and imperfect. The language here employed by the framers of the Constitution is in. reference to “property” — the taxable property of our state shall he assessed for taxes under general laws and by uniform rules. It does not control the time when assessment shall be made. The object of this constitutional provision was to apply the same general scheme of taxation over the entire state, to adopt uniform rules applicable throughout the entire confines of our commonwealth. ■ By these uniform rules property was to be valued for taxation. The purpose
There is not the slightest intimation in this record that the assessor did not conform to the general laws and uniform rules so jealously guarded by the majority opinion. On the contrary, it is conceded that the new assessment was made, filed, and approved in strict accordance with our revenue laws. The Constitution only provides that property shall be assessed under general laws; the majority opinion goes further, and declares, in effect, that all land must be assessed at one general time. The effect of this opinion is to nullify the entire land assessment roll of Lincoln county for the year in question and to invalidate all tax sales made there
In squaring the act with the Constitution, it is elementary that all doubts should be resolved in favor of the statute. It should be remembered also that in- all matters of taxation the legislature when it acts within
“The present land assessment of Lincoln county is so erroneous and imperfect as to cause inconvenience, unnecessary trouble, and financial loss to the state, and to the taxpayer in such county. ’ ’ •
The legislature found, as a matter of fact, that this condition existed, and if such was in fact the condition, then I assert that the constitutional scheme for assessing lands in Lincoln county was being thwarted and defeated by an imperfect assessment, and instead of the special act here questioned being in contravention of the constitutional scheme, it was designed to carry out and perfect, and did perfect, the constitutional-plan of taxation, securing to all the taxpayers of Lincoln county that equality and uniformity safeguarded by our organic law. An exigency had arisen in Lincoln county, as it is liable to arise in any county, and in meeting this exigency — this admitted defect in the assessment— the legislature had the undoubted right to act. The land roll is merely the evidence of a valid land assessment. The assessing of land under general laws and by uniform rules is one thing, and a roll evidencing that assessment is another. Section 112 was never designed to forbid the getting up of a new assessment roll in any
Equality and uniformity was securely guaranteed by the Constitution of 1869 (article 12 section 20) yet our court held that the legislature had the right to pass curative statutes validating an irregular or void assessment. Vaugan v. Swayzie et al., 56 Miss. 704. If the legislature could have cured by statute an irregular assessment without violating the spirit of equality and uniformity, then it certainly should have the right by statute to order a new assessment in any county to accomplish the same salutary purpose. In fact the right of the state to order or require a reassessment is recognized by all the authorities that have been brought to my attention. Mr. Cooley in his work on Taxation (3d Ed.), vol. 1, pp. 526, 527, says:
“The method of curing defects by reassessment of the tax is less open to abuse than any that has "hitherto been mentioned. Whether this be done'by general law, which shall provide for all cases in which tax proceedings prove invalid, and authorize the same tax to be imposed on the persons or property that ought to be charged therewith, by proceedings begun de novo, or on the other hand, shall assume the f-orm of a special law providing for the like reassessment in any particular case, it is scarcely possible that it should cause serious injustice beyond what is incident to all tax legis*72 lation. In the new proceedings the party concerned will have the opportunity to watch the various steps, and to he heard in review of them, that he has.in' any case, and he will be precluded by nothing that has taken place in the proceedings which have proved abortive. The reassessment will he for the purpose merely of enforcing against him a duty which he was likely to evade, by reason of the nonfeasance or misfeasances of the officers who ought to have enforced it; and, as the new proceeding will give him the same opportunity - of being heard that is given in other cases, and will he conducted on principles that operate generally, he has no reasonable ground of complaint.”
This right to reassess is recognized also by the general statutes (section 4299 to 4301, inclusive, of the Code of 1906) authorizing hoards of supervisors to order a reassessment of lands in any case where the land assessments are, in the judgment of the board, erroneous and improper. The majority opinion does not comment upon these statutes or state in what cases the same would he applicable. It would appear that these statutes, however, could not have been availed of by Lincoln county in the present instance. I take it that these sections of the Code only apply during the year when a general new assessment of real estate is being made, and only in the case where the asssessor brings in a new roll that is manifestly erroneous and improper. In that case instead of accepting and approving the imperfect new roll — a botched job — the board either on the first Monday of July or the first Monday of August of that year, and that year only, may order a reassessment, to he completed in such time as the board may direct, not exceeding ninety days. If I am correct in the assumption that these Code sections have no application except during the year when a new assessment of real estate is being made over the entire state, then a comity after once approving an assessment roll could not, without a special act, bring in
For the reasons indicated, this case should be reversed.