90 So. 356 | Miss. | 1921
Lead Opinion
delivered the opinion of the conrt.
This is a suit in chancery by the appellant, Long Bell Company, to cancel the claim of appellee to certain lands and to quiet the title of appellant thereto. On a final hearing the court refused to grant'the relief sought, from which decree this appeal is prosecuted.
This appeal presents two questions for our decision: One is whether or not section 4320, Code of 1906 (section 6954, Hemingway’s Code), is unconstitutional, in that it provides an assessment, by the collector, of lands left un-assessed by the assessor, but fails to provide for any notice to the oivner; the exact point in this case being whether a tax title obtained through a sale under this statute is valid. The other question raised is Avhether or not the collector may legally back assess land and sell it under the above section in a case Avhere the same land had already been assessed, but assessed' as vacant, and not valued, by the assessor, and approved by the board of supervisors in due course under the law.
We shall omit deciding the first question as to the constitutionality 'of the statute, because it is unnecessary to do so, since a decision of the second question Avill settle the case.
The appellee claimed title under a tax sale for the taxes of 1913 and 1914, Avhich were back assessed by the collector, in 1915, under said section 4320, Code of 1906 (section 6954, Hemingway’s Code). The appellant claimed in his bill, and showed by undisputed proof, that the land Avas assessed on the rolls for the years of 191.3 and 1914 as “vacant” land and valued at blank or nothing. These assessments Avere considered, passed upon, and approved by the board of supervisors in due course during said years. And it is urged therefore that said land was not “left unas-sessed by the assessor” as provided in said statute, and that the back assessment by the collector Avas void, and consequently the sale thereunder was void.
The view we express is supported clearly in principle in Adams v. Luce, 87 Miss. 220, 39 So. 418. In that case this court said:
“It will not do to say that, because an assessment is utterly void in the eye of the law, though once actually made, such property has escaped taxation. The very term As-cape/ ex profirió vigore, implies that it had never been found or known or listed for taxation. That escapes detection which never has been seen in fact. That escapes assessment which never has in fact been assessed in any way. That which, as a matter of fact, has been returned by the owner, placed upon the assessment roll by the assessor, dealt with by the board of supervisors and by'the tax collector, cannot be said, in any proper sense of the words ‘escaped- taxation’ or within the scope of the evil to be remedied by the revenue law, to have escaped taxation.”
From the authority quoted it seems clear to us that property which appears on the assessment roll duly approved
The decree of the lower court is reversed, and judgment is given here for the appellant.
Reversed and judgment here for appellant.
Dissenting Opinion
(dissenting).
I am of the opinion that the land here in question was “left unassessed by the assessor” on the land roll for the years 1913 and 1914, and consequently dissent from the majority opinion.
Section 4320, Code of 1906 (section 6954, Hemingway’s Code), under which the back assessment herein was made, provides that “the collector shall assess and collect taxes on land liable to taxation left unassessed by the assessor,” etc. In the law of taxation an assessment consists in the two processes of listing the persons, property, etc., to be taxed, and of - valuing the property for the purpose of forming a basis upon which the tax is to be computed. 1 Bou-vier’s Law Dictionary, p. 256; 5 C. J. pp. 813 and 816.
In the so-called assessment of the land here in question for the years 1913 and 1914 at least one of the essential elements thereof is missing, to wit, the value of the land, for the assessment as set forth bv the roll is as follows:
Name Division of Section S. T. R. E. of Owner. or W. 38 Vacant S.W.1-4 of N.W.1-4 4 3 17 E.
(See page 369.)
I do not mean to say that, where there has been an actúa], though void, assessment of property, it has been “left un-assessed” within the meaning of the statute. That question, I think, is foreclosed by Adams v. Luce, 87 Miss. 220, 39 So. 418; but here there has been no assessment at all, but simply a listing of the property. In Adams v. Luce, supra, the assessment was complete in so far as the listing and valuing of the property was concerned, but was void because of the failure of the assessor and board of supervisors to comply in other respects with the statute in making it, and the court, in holding that the property had not “escaped taxation” within the meaning of the statute, which authorizes the revenue agent to back assess property, said:
“But where an assessment has in fact been made, where the assessment roll shows on its face all that it ought to show — the name of the owner, the description of the property, the valuation of the property, the tax, etc. — but that assessment is irregular or imperfect or defective, or even absolutely and utterly void, by reason simply of a failure to comply with some vital and fundamental requirement of the law, such property cannot, within the meaning of these words, escaped taxation,’ be said to be property which has escaped taxation in fact. In such cases, manifestly, there has been an ■ assessment — an assessment in fact, an actual assessment. The property has not been withheld from the assessment roll. It has not been omitted by inadvertence, accident, or for any other reason. It is there in the assessment roll. It is assessed at a certain rate. It is all assessed. But the whole roll is void because of such failure to comply with such fundamental requirement of the law. There is, in such latter case, no assessment in the eye of the law; but there has been an actual assessment in fact, though not valid in the eye of the law.”
It is stated in the brief of counsel for the appellant that “the bill alleges that the land was legally assessed on the
Concurrence Opinion
(concurring).
In his dissent Judge Smith says there ivas no assessment of the land made by the assessor and approved by the hoard of supervisors because the land was not valued on the assessment roll, which was vital to an assessment, and that therefore the land escaped assessment.
To illustrate the contrary view (the view of the majority of the court), take a case of this kind: John Smith owns forty acres of old gullys, and hills detached from the balance of his lands; the assessor asks him to give it in for taxes. John Smith says:
“It is worthless. I would not pay taxes on it for it. I will deed it to any one who is willing to own it. I decline to have is assessed.”
To which the assessor replies: “I am required by law to put it on the roll — to assess the face of the earth whether there he value or not [and he is required to do this by the statute]. I agree with you it is worthless, so I will set it down on the roll showing that fact.”
And the board of supervisors, at the regular meeting-provided for 'that purpose, approves such assessment. Has the land escaped assessment? The majority opinion says not..
I merely wanted to express my concurrence in this form, although the majority opinion is well reasoned.