Illinois Central R. v. Middleton, 68 So. 146

Illinois Central R. v. Middleton

68 So. 146 | Miss. | 1915

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

The bill alleges that, “In July, 1914, the school board of Hinds county met in pursuance of section 4512, Code of 1906, and fixed and defined the boundaries, limits, and territory of the Forest Hill Consolidated School District- in the county of Hinds; and also of the Byram Consolidated School District;” that at its September, 1914, meeting the board of supervisors of Hinds county issued bonds of these districts to the amount of one thousand and eight hundred dollars in accordance with the statute, and also levied a tax of five mills on the “assessable property” situated in the Forest Hill District, and of four and one-half mills on the “assessable property” situated within the Byram District; that complainant owns property in both of these districts, but that this property has not been assessed by the railroad commissioners for the year 1914, and prayed that the sheriff of Hinds county be enjoined “from in any way *210attempting to collect from your complainants the tax claimed by him to be due on account of taxes assessed against the property of your complainants in the Forest Hill and Byram separate districts for the current year of 1914.” The demurrer was interposed to this bill was sustained, and the cause dismissed. The first ground upon which it is sought to obtain á reversal of this decree is that the board of supervisors of Hinds county was without power, under sections 4255 and 4257 of the Code, to levy the tax in question, for the reason- that these districts were created after the 1st day of February .of the 3rear in which the tax was levied. Section 4257 of the Code provides: ■

“All taxable property brought into the state or acquired or held by any person before the first day of February shall be assessed, and taxes tliereon paid for the current year. ’ ’

And section 4255 thereof provides:

“All taxes assessed shall be a lien upon and bind the property assessed, from the first day of February of the year in which the assessment shall be made.”

Appellant’s contention in effect is that, under these sections, in order for property within the consolidated school district to become liable to a tax for district school purposes, it must have been in the district on the 1st day of February of the year in which the tax is sought to be collected, and since these districts were not in existence on the 1st day of February, 1914, its property was not and could not have been then in them. The case relied upon to support this contention is Gulfport v. Todd, 92 Miss. 429, 46 So. 541. In that ease is was held that a municipality was without power under these statutes to collect taxes upon property in territory added to it after the 1st day of February of the year in which the taxes are sought to be collected. The case at bar, however, may be differentiated from that case; for, as pointed out in the opinion therein, that case presented—

*211“no question of governmental agency,' . . . hut simply the question of the power of a subordinate creation of the state to tax for its general revenue purposes (italics ours) without reference to the day fixed by the laws of the state.”

We are not here concerned with the soundness of the view that a municipality is not a governmental agency, for there can be no question but that county boards of supervisors and public school boards are nothing more nor less than agencies created by the state to enable it to conveniently discharge' a governmental function, so that that case has no application here. In so far as the question here under consideration is concerned, counties and public school districts simply designate the territory or subdivisions of the state within which' the two boards ■ discharge the duties which the state has delegated to them. By section 307 of the Code it is provided that boards of supervisors—

“shall have power to levy such taxes as may be necessary to meet the demands of their respective counties, upon such persons and property as are subject to state taxes for the time being.”

The property within this district comes not only within the spirit, but also within the strict letter, of this statute, for it “was subject to state taxes for the time being. ’ ’

If appellant’s construction of these statutes is correct, it will necessarily follow that no taxes could have been collected in most of the new counties organized during the past several years during the year of their organization, for most of them were organized after the 1st day of February, and the statutes providing for their organization made no special provision for the levy and collection of taxes. A county organized in April of one year could not, under this construction of the statute, collect any taxes, in the absence of special legislation, until October of the following year. The *212same result would follow the creation of road districts under the various statutes providing therefor. Both the executive and the administrative departments of the state have heretofore acted upon the construction of these statutes (sections 4255 and 4257), which permits taxes to he collected by new counties and for road and school districts during the year of their creation, although they were created after February 1st, and such' construction should not now be departed from unless manifestly incorrect.

Moreover, if no taxes could be collected for the support of a consolidated school district during the year in which it was organized, an absurd situation would be created, as instanced in the case at bar; for while these districts were organized in July, 1914, no taxes could be collected for the support of their schools and for the payment of their bonds until October, 1915. That the legislature intended to bring about such a condition of affairs is almost unthinkable. Consequently the statutes should not be construed as so to do if it is reasonably possible to construe them otherwise; one of the cardinal rules of construing statutes being that if reasonably possible they should be so construed as not to be absurd. Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L. R. A. (N. S.) 541, Ann. Cas. 1914B, 392. In an opinion rendered by the court below it was said that:

“By reference to section 3, chapter 255,- Acts of 1912, we find that the legislature has provided that the tax for consolidated school districts shall be levied by the board of supervisors in ‘the same manner as provided for separate school districts.’ If we read the provision for this for separate school districts in Laws of 1910, chapter 217, there is no doubt but that it is the intent of the legislature- that the tax shall be levied and collected regardless of the date upon which' the district was created. After providing for the levy and assess*213ment it says: ‘Provided however, where separate districts be created.after the assessor’s roll shall have been completed for the year, that the tax collector shall collect said taxes on said district, basing same on previous assessment.’ ' The assessor does not get the roll until February 1st, and has until the first Monday in July in which to file same, and it is perfectly manifest that the legislature here says in so many words that this tax shall be collected where the district was .formed after February 1st.”

The force of the reason here assigned for holding appellant’s property liable to the taxes here in question is strengthened when we remember that personal property owned by all taxpayers and the land owned by corporations under the supervision of the Railroad Commission is assessed each year. These views are supported bv Atchison, etc., v. School District, 75 Kan. 843, 89 Pac. 1018.

The second reason assigned for the reversal of the decree of the court below is that appellant’s property situated within these districts has not been assessed by the Railroad Commission, and that until this is -done appellant is not liable for taxes thereon. While the allegations of the bill in this connection are somewhat vague, what we understand the pleader to .have meant to charge is that the Railroad Commission, in assessing this property, did not indicate on the assessment roll what portion thereof is situated within these school districts. The bill does not allege when the assessment was made, nor that it was impracticable for it to have been made on or before June 1st, so that, construing it most strongly against the pleader, we must presume that the Railroad Commission complied with section 4387 of the Code and made the assessment on or before June 1st, and therefore before these consolidated districts were created. . Tf this be true, it was impossible for it to indicate on. the rolls what property was situated within the districts. Nevertheless, under chapter 217, *214Laws 1910, it is the tax collector’s duty to collect all taxes levied thereon for district purposes, “basing same on the assessment previously made;” that is, the assessment made next preceding the creation of the districts. That it may, in some instances, be somewhat difficult for a tax collector to ascertain what portion of the property assessed lies within a school district when not so indicated on the assessment roll does not relieve him from the duty of collecting the taxes thereon so far as it is practicable for him to do so; his duty in this connection being the same whether the property sought to be taxed is that >of a railroad company or of any other taxpayer. Our statutes formerly contained no provision requiring the property in school districts to be indicated on the assessment rolls, either those made by the regular assessors or by the Railroad Commission, so that appellant is in no worse situation here than were the taxpayers- whose property was within separate school districts during the time that such property was not required to be indicated on the rolls. The first statute requiring this to be done was chapter 77, Laws 1900, and related only to property assessed by the Railroad Commission; and the first statute which required- this to be done by the regular assessors with reference to all property, was chapter 213, Laws 19101.

Since the bill contains no allegation that the tax collector is seeking to collect taxes on property not within these districts, or that tbe amount claimed is incorrect, it follows from the foregoing views that the decree of court below must be, and is, affirmed.

Affirmed\

Dissenting Opinion

Cook, J.

(dissenting).

As I read the pleadings in this case., it appears that the property involved has not been assessed for the taxes which the tax collector will proceed to collect. By section 4384, Code 1906, “the members of the *215Railroad Commission are constituted state railroad assessors.” Section 4387 of the Code provides how the assessment roll shall he made out. From the pleadings it appears that no assessment roll -of the railroad property in this school district has ever been made. It is easy enough' to decide this case in accordance with what the court may deem to be the rule of justice in the particular case but for the fact that the legislative department has seen fit to provide- how and by whom railroad property shall be assessed. The legislative scheme is exclusive of all other schemes. The statute does provide that the collector may assess and collect taxes on all property left unassessed by the assessor. Section 4320, Code 1906. This section forms a part of the chapter on Revenue, and I do not think that it can be contended, nor do I understand the court contends, that this section has any application to railroad property.

I have been unable to find any act of the legislature giving this power to the collector in cases where railroad property has been left unassessed by the Railroad Commission. This may be an intentional omission, or it may be an oversight, but it is nevertheless a fact that the collector has not been so empowered, and if will not be contended that he possesses any inherent power in the premises.

I would regard the judgment of the court as excellent and much to be desired legislation, but I cannot bring myself to believe that any warrant for the court’s interpretation of the law' can be found in the statutory law of the state, where it must be found if it exists at ah.

As I see it, the situation is just this: The railroad assessors have not assessed the property; the tax collector, finding himself without an assessment roll made up in the manner pointed out by the statute, has proceeded to make the assessment himself, in the absence *216of any authority so to do. . Pie will collect the taxes unless restrained by the courts. The court declines to intervene, because education is important, and because education will be hampered for a while longer, unless the taxes are collected. This may be good policy, but, in my opinion, it is bad law.

The quotation from chapter 217, Laws 1910-, ivhich requires the tax collector to collect all taxes levied on property in the district “basing game on the assessment previously made,” cannot serve to justify the tax collector in his purpose to collect the taxes involved in this case. There is no “assessment previously made” in this district, and, of course, he cannot base his collection on the nonexistent. The legislature, wisely or unwisely, has imposed the duty and conferred the power on the Railroad Commission alone to make the assessment, and, as I. understand the powers of this court, we- are without legal power to improve on, relax, or substitute some other and more convenient way to make the assessment.

I fully realize my own limitations, and have the greatest respect for the judgment of my Associates, but, in this case, I must respectfully dissent from the views expressed in the majority opinion.