Johnson v. Reeves

72 So. 925 | Miss. | 1916

Lead Opinion

Stevens, J.,

delivered tlie opinion of tlie court. .

(After stating the facts as above). Counsel leading the attack upon the constitutionality of Senate Bill No. 310 direct our attention to and rely upon the following sections of our Constitution, which they contend, are violated by the act in question, viz.: Sections 112, 87, 90 (h and o), 66, and 100. In presenting the case, they argue these several sections of the Constitution more collectively than separately, frankly conceding, however, “that it devolves upon the appellant here to put his hands upon the provisions of the Constitution which prohibit the exercise by the legislature of the power to pass the statute.” ■

It must equally he conceded that in our form of government the power to legislate is vested in the legislature, and that, before the court can strike down the act in question as unconstitutional, we must put our hands upon the exact provision of the Constitution which denies to the legislature the power here exercised, and not only to point out the provision or provisions that are violated, but to hold beyond a reasonable doubt thát the act in question conflicts with such provisions of our organic law. It is an elementary principle frequently announced by our court that the members of the legislature are the immediate representatives of the people, and that the expression of the legislative will by statute must be regarded as the expression of the will of the people in their sovereign capacity; and before the courts can interfere the will of the people as expressed in their law must necessarily conflict with their will as heretofore expressed in their Constitution. If there is any doubt about the constitutionality of the act in question, such doubt must be resolved in favor of the law. Our court has likewise frequently called attention to the fact that it has nothing to do with the wisdom or expediency of a statute. "What, then, is the purpose and effect of the amendatory act in question? After full consideration of the oral arguments and the able briefs on. file, we are forced to conclude that the statute here attacked violates neither the spirit nor the letter of any of the provisions of the Constitution relied upon.

In construing the act we are justified in looking to and considering its title. It amends the Code section providing for the delivery by the outgoing revenue agent of all documents that will be of service to his successor, requires the successor to allow all suits commenced by the outgoing officer to be conducted in' the name of the successor, “except suits or proceedings for the collection or assessment of taxes on agricultural products,” and expressly abates such assessments, suits, and appeals as the revenue agent has instituted against or in reference to agricultural products. The act deals with the power and authority of the revenue agent as a fiscal officer of the state. It does not abate, and does not undertake to abate, any fixed liability of any person, firm or corporation for past-due taxes. The office of state revenue agent is a legislative and not a constitutional office. The legislature has the unquestioned right at any time to prescribe the duties of this officer or to curtail his power. Indeed, it may abolish the office altogether. It may here be stated also that an office is not a contract, and that the incumbent has no vested interest in the term, fees, or emoluments thereof; We are not. called upon to search for the motives that may have inspired the amendment to section 4750 of the Code. It is sufficient to say that the legislature in its wisdom, and presumably after maturest deliberation, deemed it wise to trim the power of this officer a bit and to deny altogether the right of the successor to allow his name to he used in the prosecution of any proceedings for the assessment or collection of taxes on agricultural products. Were we, however, called upon to search for a reason, we might be justified, we think, in saying that the power of an out-going officer to prosecute such proceedings armed this official with unusual power; that in the exercise of this power the revenue agent had frequently instituted blanket assessments against millions of dollars worth of property, taxes upon which were being claimed for many years past, and covering transactions about which records might be destroyed and memory failing. They may have concluded that the exercise of this power would lead to unauthorized and unjust assessments upon agricultural products, and especially upon such a product as cotton, which may or may not reach the mills the same year it is produced, the ownership of which so frequently changes from producer to merchant, from merchant to cotton buyer or banks, and from these in turn to the larger holders and manufacturers. Be this as it may, we cannot impute to the legislature either a desire or design to extend any exemption to one justly indebted to the state for past-due revenues, and there is here no attempt to pass a special or local law for the benefit of any individual or corporation. So far, therefore, as section 87 of the Constitution is concerned, this is a general law. There is no merit also in the contention that the statute exempts property from taxation, levy, or sale, or is intended to create, increase, or decrease the fees, salary, or emoluments of any public officer, and therefore it does not violate any of the provisions of section 90.

The only serious question presented by this appeal is whether the statute violates section 100 of the Constitution. If the necessary effect of the statute was to remit, release, postpone, or diminish the fixed liability or obligation of any taxpayer, then the statute would violate this section of onr fundamental law. As we interpret the statute, however, the amendment does not undertake or purport to remit, release, postpone, or diminish the obligation or liability of any person. It does not undertake to declare that those who owe past-due taxes upon agricultural products are or shall ever he freed from such liability. In construing the act we must look to the act as a whole, and not hang upon a single word therein. The essential part about the amendment is the provision that “all power and authority of the state revenue agent and his predecessor in office” to prosecute the appeal here presented is revoked and annulled, and the assessment on the cotton, in this case, having been instituted not by the assessor or the sheriff hut by the revenue agent himself, stands abated. In standing abated the liability, if any, has never become fixed. The act itself is not susceptible to the construction which counsel for appellant attempt to place upon it. It does not purport to deal with those assessments which under our revenue system or by operation of law have become fixed liabilities ag’ainst any of the taxpayers of our state. The statute simply declares that the revenue agent shall no longer have the power himself to institute back assessments on agricultural products in Mississippi. It was not incumbent upon the legislature in the first instance ever to have reposed this power in him. Having once reposed the power, the legislature, expressing the state’s will, now has the undoubted right to revoke it. The revocation of this power is the only complaint which appellant is in position to question. The act as amended having revoked his power to prosecute this kind of an appeal before the circuit court of Warren county, and having abated the very assessment which he as revenue agent had instituted, the circuit court was left without jurisdiction to render a final judgment, and the action was therefore properly dismissed. The judgment of the circuit court abating the assessment and dismissing the proceeding of course neither imposes nor discharges any liability, and does not and will not stand in the way of the assessor in any attempt by him to back-assess appellees upon any agricultural products that might have escaped taxation and upon which appellee should pay taxes. The authorities fully sustain the right of the legislature to direct or authorize a reassessment or to validate an erroneous assessment, but no such question is even presented in this case. The cases cited by counsel for appellees fully sustain the views here expressed, and especially the following: Colbert v. State, 86 Miss. 769, 39 So. 65; O. C. French et al. v. State, 53 Miss. 651; Kendall v. City of Canton, 53 Miss. 526; Hyde v. State, 52 Miss. 665; Bradstreet Company v. Jackson, 81 Miss. 236, 32 So. 999; State v. Order of Elks, 69 Miss. 895, 13 So. 255; State v. Hill, 70 Miss. 106, 11 So. 789; Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470.

Affirmed.

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Dissenting Opinion

Cook, P. J.

(dissenting). I am convinced, beyond all reasonable doubt, that the legislature intended by Senate Bill No. 310 to release the' state’s olaim for taxes due by appellee and all others similarly situated. The title of the act throws a flood of light upon the purpose of the act.

. It' was certainly the duty of appellee to list his property for taxation, and it was certainly the duty of the assessor to assess the property so listed and to make the assessment whether it was listed or not, and it was the duty of the collector to collect the taxes so assessed If it was the duty or obligation of appellee to list his property for taxation, he was liable for the taxes thereon, and the state was the owner of the obligation, or liability. ■

The legislature knew what it wanted, but, confronted with section 100 of the Constitution, it became necessary, if possible, to so frame the expression of its purpose as to satisfy this constitutional limitation of its powers.

The necessary effect of the statute is to remit and cancel the claim of the state for the taxes due the state; it effectually relieves the taxpayer from all liability to the state. This is so clear to me that I am unable to see how any other conclusion can be reached. It may he good policy to abate liabilities of this kind and to exempt agricultural products from taxation, hut, when this is done in total disregard of the Constitution, I cannot give my assent without violating my oath of office, as I understand it.

Again, it is my opinion that the act in question violates section 112 of the Constitution. Taxation and the collection of unpaid and unassessed taxes must be by uniform rules. To exempt one class of delinquents from the rule which empowers the revenue agent to proceed against delinquents simply destroys the uniformity of the rule. This a.et favors one class of delinquents and forbids the revenue agent from instituting proceedings against the favored class, hut leaves the revenue agent free to proceed against all other delinquents. All taxpayers, except the statutory elect, must submit to the activities of the revenue. agent.

•It may be within the power of the legislature to exempt from taxation all agricultural products grown in the state, but when the legislature in express terms changes one of the uniform rules provided by general law for the taxation of property by exempting therefrom the owners of a certain class of taxable property, there can he no reasonable doubt that section 112 was ignored. So we have the desired result accomplished by indirection when it could not be accomplished directly.

The taxes were due and unpaid and were a liability owned by the state. The revenue agent had instituted proceedings to collect this liability, when the legislature steps in and abates these proceedings, and thereby takes from the state its own, and at the same time sets up a new and different rule for the collection of the cotton tax. All other taxpayers may he assessed by the revenue agent for delinquent taxes, but by a special dispensation the favored taxpayer who has managed to escape from the regular assessing authorities is rewarded by forever exempting him from the possibility of being bothered by the revenue agent again.

I can imagine no more effective scheme to repeal the constitutional limitations upon the legislature than the one devised in this case and approved by the court.