65 Ala. 391 | Ala. | 1880
— There can be no question that the railroad, .appellee in these cases, is liable to the counties prosecuting these appeals, for county taxes for each of the years 1869 to 1875, inclusive, if proper steps have been taken to ascertain and fix the amount of the liability. This results necessarily from the unconstitutionality of the act approved February 9th, 1870 (Pamph. Acts, 87), which attempted to relieve railroads from all county taxes on their “ right of way, road-bed, side track, and main track,” and on their rolling-stock. Perry County v. Railroad Co., 58 Ala. 546 ; State Auditor v. Jackson County, at the present term. That the railroad has failed to pay county taxes, for each of the years mentioned, is a fact not disputed. It defends the present suit on the alleged ground, that no county tax has been legally levied against it, for either of the years mentioned, and that none can now be levied.
The foundation fact, on which a county levy of taxes on this species of property can alone rest, is an assessment for State taxation, which is made by the State auditor, assisted by the board of equalization in determining the values. It is contended for appellee, that what is relied on as an assessment in these cases is invalid, because it is not shown that the board of equalization met on the 3d Wednesday in May, as required by the statute, and because it does not appear that the members of the board kept a record of their proceedings, which was signed by all the members present. Rev. Law of 1868, § 26, page 308 of the Pamphlet Acts.
In State Auditor v. Jackson County, we considered many questions which necessarily arise in these cases. Speaking of assessment for State taxes, we in that case announced, that it was our duty “ to indulge every reasonable intendment in favor of regularity, rather than paralyse this motive power of the State’s machinery.” We said, further, “We do not consider the time of the meeting of the State board of equalization as mandatory.” The duty of apportioning the assessed values between the several counties is cast on the auditor. To do so, he must know the whole length of the main track of the railroad, and the length in the several' counties, and the value of the entire rolling-stock on the whole road. This enables him to apportion the rolling-stock. He must also know the number of miles of main track and of side track in the several counties, and the value
It is contended before us, that the State assessments of this railraad for taxes are void, because it is not shown that the State board of equalization, whose functions precede assessment and apportionment, kept a record of their proceedings, which was signed by all the members present. This duty is certainly mandatory, and if not complied with, the assessment was not legally made. But, does it appear, or must we presume this duty was not complied with ? In the condition in which we find these records, what intendments must we indulge? When these cases were submitted to the chancellor, there was a note of the testimony taken, which is made part of the records. One instrument of evi
In what is called “ certified transcript from the auditor’s office,” there certainly are irregularities, which, if objection had been made, would have called for its exclusion. It does not appear to be an exemplification, by copy certified, of what the record in the auditor’s office contains. It is rather a certificate by the auditor that the statements he exhibits are the resultant, established facts, of what is shown in his office. It does not assume to set forth the record of the proceedings of the State board of equalization, nor does it show that a record was made and signed by the members present. The certificate of authentication is as follows: “I hereby certify, that the statements of the assessment of the Selma, Marion, and Memphis Railroad Company, for the years 1869, 1870, 1871, 1872, and 1873, and 1874, hereunto attached, are true and correct copies of the originals on file in this department ; ” signed by the auditor. This certified transcript contains copies of the sworn annual returns to the auditor, made by the president and secretary of the railroad, each bearing
Are the facts recited above sufficiently proven ? It will be borne in mind, it is State assessment by State officers we are dealing with. In State Auditor v. Jackson County, we said: “ It is our duty to indulge every reasonable intendment in favor of regularity in assessment for State taxation.” We feel it our duty to presume, in the condition in which we ijnd these records, that the State board of equalization had a meeting each year, that they kept a record of their proceedings, and that the record was signed by each member of the board who was present. It follows, that each State assess
It is urged for appellees, that there has been no valid levy of county taxes on this railroad property, for either of the years 1869 to 1875, inclusive ; and such was the view taken by the chancellor. The particular grounds of objection to the regularity of the levy are, that the auditor did not notify the county assessors “ of the number of miles of track, and value thereof, and the proportionate value of personal property, taxable in their respective counties ” ; that the assessor did not “add the value of all other real property, except,’* &g., “ together with all fixtures, machinery, tools and other property within their respective counties ” ; that this property was not entered upon an assessment-list; that it was not entered in a book of assessments ; that the county board of equalization frequently'met on days other than the 3d Monday in August, for the purpose of equalizing assessments ; that the certificate, if any was made, of the chairman of the board of equalization, upon, or appended to the assessor’s book, that the board had equalized and corrected the assessment, did not authenticate the assessment of the railroad track and rolling-stock, because their assessment was not on the book; that the Court of County Commissioners, when they levied the county tax, were not in session on any day of a regular term fixed by law; and, finally, when the county tax was levied, it was done by declaring a per-centum on the assessment shown in the book of assessments before them, and that the court did not levy a county tax on this property, because it did not appear on the assessment book. Bev. Law of 1868, sections 24, 33, 37, 97, 98, 101 and 103.
The objections noted above, considered collectively, are based on the assumption, that county taxes are levied so as to realize a given sum, and no more; that this end is accomplished, by first ascertaining the aggregate sum of the State assessment, and then graduating the county levy, so as to yield the required sum; that property not shown on the book of assessments, does not enter into the computation, and to allow it to be brought in, would increase the aggregate of the county levy beyond the sum required or intended. Hence, it is contended, no county tax is in fact levied on property omitted from the book of assessments.
To the Court of County Commissioners is confided the entire authority to levy county taxes. They are presumed to be cognizant of the wants of the county, and are clothed with a large discretion. It is without limit, unless one is imposed by the constitution, or by statute. Of course, they will and should consult the wants of the county, present and prospec
Section 103 of the act of 1868 makes it “ the duty of the Court of County Commissioners, immediately after the adjournment of the board of equalization, to proceed to levy the amount of taxes required for their county for that year, not to exceed the rate levied by the State.” It could not be known when the board of equalization would adjourn, and hence the statute does not fix the time when the court would or could meet for this service. The language of the statute forbids the inference that such session must necessarily be at a regular term of the court. It was to be immediately after the board of equalization completed its labors; and falling when it would, the statute made it a regular term
If it were proposed to collect this tax by the agency of the county tax-collector, we would be inclined to hold the certificate of the State auditor to the county assessor, notifying him of “ the number of miles of track and value thereof, and the proportionate value of personal property taxable” in his county, is a condition precedent to the right to make such collection. These proceedings, however, are petitions to the court, for direction to the receiver to pay the taxes. In such case, the auditor’s certificate to the county assessor, can accomplish no purpose. It is sufficient for this form of relief that the amount of the taxes has been legally ascertained, or that sufficient facts are shown to render the ascertainment a matter of calculation. This being done, the taxes become an ascertained debt, or legal liability, it is the duty of the court to order the payment of.
Under the foregoing principles, governed by the state of the records now before us, the railroad corporation is liable for the taxes for each of the years named, except, perhaps, the years 1873, and 1875. For the year 1873, it is not averred that the board met for the purpose of equalizing the values. For the year 1875, there is nothing shown as to Hale county, and a very imperfect showing as to Perry county. Perhaps, these omissions and irregularities, as to the year 1875, may be supplied and corrected on another hearing. As to the years 1869_, 1870, 1871,1872, and 1874, as the records now stand, the railroad is liable for the county levies, as shown by the proceedings in the several years. We will not, however, render final decrees in these causes, but will remand them for further proceedings in the court below. We do this, for the reason, that to decree otherwise, would produce an inequality we are unwilling to make. There is another reason, which operates to make this an exception to a salutary general rule. The testimony to be
Without entering, at this time, into a discussion of the question, we decline to award interest on these back taxes. The uniform custom in this State, so far as our information extends, has been not to demand interest, as interest, on taxes in default, and we will not disturb that custom.
The decree of the chancellor, in each of the causes, is reversed, and the causes are remanded.