117 Ark. 606 | Ark. | 1914
(after ¡stating the facts). The first contention in -support of the demurrer to the complaint is that the ¡act of 1913 ¡should be so construed -as to limit its retrospective effect to that feature -of the amendment which restricts the remedy to -property owned by a corporation at the time -of the passage of the amendatory •act, -and, if not so limited, -so as to confine its retrospective -operation to the period between the passage of the act of 1911 and the act of 1913.
In the act of, 1913 the purpose ¡and intention of the Legislature that it .should have a retrospective effect is expressly declared. But, ¡because it does not specify that it is to apply to each separate provision, ¡and on the assumption that it will otherwise impose additional burdens on the public and operate harshly 'and unjustly, it is insisted that it should be .construed in the .most limited sense of which the language used, in connection with the subject-matter and object of the statute, is susceptible.
The fundamental rule in construing statutes is to ascertain ¡and give effect to the intention of the Legislature. 36 Cyc. 1106; Brown v. Nelms, 86 Ark. 368, 385.
The strict rule of ¡construction contended for does not apply to remedial statutes which do not disturb vested rights, or ¡create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature. 36 Cyc. 1209.
In order to make the remedy complete it was not necessary to bring forward and re-enact the other ¡sections of the original act. They relate only to the method of procedure, while the portion which was amended declares the right to maintain the suit.
See authorities above cited, and ¡also, Com. Sch. Dist. v. Oak Grove Sp. Sch. Dist., 102 Ark. 411.
Whether the statute ¡can be given a prospective operation so as to give it a ¡continuing effect, is a question not presented by the facts ¡of this case, ¡and need not be decided. The retrospective effect of the ¡act is separable from its prospective effect.
The contention is that the selection by statute of the property of corporations is an arbitrary classification based solely on ownership, and not upon .any inherent difference in the character of the property; that it destroys ■the uniformity and equality in taxation required by the State Constitution, 'and therefore results in a 'withdrawal from corporate owners of property of the equal protection of the laws, in violation of the Fourteenth Amendment. It -seems to 'be conceded by the learned counsel for the appellee that it would not have ‘been a violation of the State Constitution if the statute had required all property that had been undervalued to be assessed at its true value.
The object of the assessment is to lasoertain and fix the value of property for taxation. The value is to be ■ascertained in such manner us the General Assembly may direct, provided, that such values shall be equal and uniform throughout the State, and that no one species of property shall be taxed higher than another species 'of property of equal value. Art. 16, section 5, Constitution.
It has been settled by repeated decisions that the State is allowed a wide discretion in the matter of classifying property for the purpose of taxation. No question is raised as to the validity of the laws that have been passed on that subject, under which the original assessments involved in the present case were made, but it is assumed that 'the validity of the statute now in issue must be tested by the same rules 'and principles that are applied to original statutes for the classification of property for taxation.
The statute providing for the separate classification of certain property of railroad corporations and its assessment by a State Board of Commissioners, while the other property of such corporations and the property of individuals are assessed 'by the county assessor, has 'been held not to be in conflict with the Constitution of the State. L. R. & F. S. Ry. v. Worthen, 46 Ark. 312; St. Louis, I. M. & S. Ry. Co. v. Worthen, 52 Ark. 529.
As a mere ¡matter of 'classification, it would seem that appellee could not have complained if the statute had been limited to the property of railroads, and, if so, it could suffer no injury from the inclusion of the property of other corporations.
But we do not regard the statute as one classifying .property for taxation. It ¡makes no new classification of property for taxation, makes no changes in existing classifications, and does not provide for any new or additional levy of taxes, but only .supplies a remedy for the collection of taxes past due under previous levies made under existing classifications.
In Winona and St. Peters Land Co., v. Minnesota, 159 U. S. 526, it was held that a statute of Minnesota providing for the assessment and collection of back taxes on property which had escaped taxation by reason of having been omitted from the assessment, was not in conflict with the Fourteenth Amendment, and that even though the act could not be enforced as to personal property on account of a failure to provide for proper notice to the owner, it could be enforced against real property. The court said: “The case is different from that of an ordinary tax law in which there may be some foundation for the claim that the Legislature is expected to make no discrimination, and would not attempt to provide for the collection of taxes on one kind of property without also making provision for collection of taxes on all other property equally subject to taxation.” It was further held that a difference in the mode 'Of assessment of property which had escaped taxation from the general mode of assessment, did not deprive the property owner of .any constitutional right.
In Weyerhaueser v. Minnesota, 176 U. S. 550, a statute of Minnesota which provided for a reassessment of property which had been grossly undervalued for past years, was held not to be in conflict with the Fourteenth Amendment.
In Florida, C. & P. R. R. Co. v. Reynolds, 183 U. S. 471, it was held that railroad companies were not denied the equal protection of the laws by a statute of the State of Florida which provided for the assessment for certain years of such railroad property as had escaped taxation for such years, without providing for the assessment of taxes for those years on other property not previously assessed.
In each of these oases the Supreme Court of the State has declared the statute not to be in conflict with the State Constitution.
It is insisted that these oases are not in point, because the Weyerhaueser oase is based on fraud, and the others on the omission of property from the first assessments.
It is true that the statute involved in the Weyerhmeser ease applied only to gross undervaluations and that the State Supreme Court held that the evidence was sufficient to show bad faith .and that the action of the assessor was a practical fraud, but its, decision was based upon a broader principle. The court made with approval the following quotation from the opinion in Street Railroad Company v. Morrow, 87 Tenn. 406: ‘ ‘ The Constitution and laws prescribed that all property should be assessed according to its value, and if by the misfeasance, or nonfeasance or mistake of the assessor, it is not assessed according to its value, but upon an arbitrary basis fixed by the assessor at far less than its value, why should the tax debtor escape simply because he has made payment?” The court then added: “So, in this case, part payment of a just tax does not render the law unconstitutional because it compels full payment of a tax according to the value of the property, whether such inadequate assessment was the result of misfeasance or nonfeasance of the assessor. When full payment according to a true valuation has been made by the owner, then he is protected by the provisions of the Constitution requiring equality and uniformity of taxation. To this requisite he must submit, because all property should be assessed and taxes paid according to a true valuation. ’ ’
Nor is the decision of the United States Supreme Court in the same case based upon any distinction, from a constitutional standpoint, between an undervaluation that is gross or made fraudulently, and one that is less in degree or made by mistake or from error of judgment; or between an undervaluation and an omission of property from -assessment. It was expressly stated that -a gross undervaluation, which was the only -kind involved in the case, is within the principle 'applicable to an entire omission of property. It was declared that whether the property was omitted from assessment or grossly undervalued it thereby escaped payment of its just share of -the public burden, and that if the -owner of property had a remedy in equity to correct an excessive valuation, it would be strange if the State, -against a -gross undervaluation of property, could not in the exercise of its sovereignty give itself a remedy for the illegal deficiency, -and that that was the effect -of the statute.
The following was- quoted with approval from the opinion of the State Supreme Court: “It (the statute) merely sets in motion new proceedings to collect the balance of the State’s -claim, -and there is no constitutional objection in the way of doing this.”
The same principles controlled in the Florida case. The -court, after explaining -the character of the -obligation to pay taxes, said: ‘ ‘ They are not cancelled and -discharged by the failure of duty on the part of any tribunal ■or officer, legislative or administrative. Payment alone discharges the obligation, -and until payment the State may proceed by all -proper means to compel the performance of the -obligation. No statutes -of limitation run against the State, -and it is a matter of discretion with it to determine how far it will reach into the past to compel performance of this obligation.”
In 'another part of the -opinion, it is -said: “If the State, a;s has been seen, has the power, in the first instance, to classify property for taxation, it has -the -same right of classification as to property which in past years has escaped taxation. We must assume that the Legislature acts according to its judgment for -the best interest of -the State. A wrong intent can not be imputed to it. It may have found that the railroad delinquent tax was large, and the delinquent tax on -other property was -small, and not worth the trouble of -special provisions therefor. If taxes are to be regarded -as mere debts, then the effort of the State to eolleet from one debtor is not prejudiced by its failure to make a like effort to eolleet from another, iand, if regarded in the truer light as a 'contribution to the support of Government, then it does not lie in the mouth of one called upon to make his contribution to complain that some other person has not been coerced into >a like contribution. ’ ’
The following are some of the other eases supporting these views: Sturges v. Carter, 114 U. S. 519; Street Railroad Co. v. Morrow, 87 Tenn. 406; Smoky Mountain Land etc. Co. v. Lattimore, 119 Tenn. 636; County of Redwood v. Winona & St. Peter Land Co., 42 Minn. 181; Anderson v. Ritterbusch (Okla.), 98 Pac. 1002; People v. Seymour, 16 Cal. 332.
The following cases are 'cited to show the judicial character and conclusive effect of the acts of such tribunals. Stanley v. Supervisors of Albany, 121 U. S. 535; State ex rel. Norwood v. K. C. & M. R. & B. Co., 106 Ark. 248; Collier v. Board of Directors, 106 Ark. 151; Shibley v. Fort Smith & V. B. District, 96 Ark. 410; State v. Little, 94 Ark. 217; Memphis L. & T. Co. v. St. Francis Levee Dist., 64 Ark. 258; Wells Fargo & Co.’s Express v. Crawford County, 63 Ark. 576; Ex parte Fort Smith & Van Buren Bridge Co., 62 Ark. 461; C. B. & Q. Ry. Co. v. Babcock, 204 U. S. 585.
The rule established by these cases makes such action final only in the absence of any statute authorizing a review, and the argument against the constitutionality of such a statute by reason of its being retrospective and failing to include all property, is answered, we think, by the authorities already cited.
In the W eyerhaueser case, it was urged that when the valuation and assessment of the property had gone through their regular course, and the taxes had been paid, the same result follows as from the satisfaction of a judgment in an ordinary 'civil action; that the matter had then ■become res adjudicada, and could only be attacked in a direct procedure for fraud. The Supreme Court of Minnesota said: “ It is to be observed 'that this is not an attack upon the original assessment so as to have the 'amount then assessed and to have the taxes thereon then levied and paid declared void. To that extent the amount is recognized as legitimate «and upheld.”
“The act does not assume to set aside the proceedings which have been 'already had, but which have resulted in the State collecting only a part of its claim. It merely sets in motion new proceedings to collect the balance of the claim.”
The United States Supreme Court, in the same case, said that the objection that the first assessments are final against any power of review could not be sustained, citing the Winona and St. Peter Land Co. v. Minnesota case, 159 U. S. 526, to the same effect.
The same court said in the Florida case: “It will be perceived that there was no new levy of taxes. No act of the Legislature was passed imposing an additional burden upon 'the property of the State in general, or upon any particular property, but the ease is one in which general levies having been made for the years named certain property which ought to have paid taxes under them, and thus contributed its share to the expenses of the State, failed to do so, 'and the effort is to compel that property to discharge its obligation. The objection is not that, the property ought not during these years to have paid its proportion of the taxes, but that if ought not now to be compelled to pay such proportion because certain other property was similarly situated, and no effort is made to compel payment from it. ’ ’
The Supreme Court of Minnesota said in County of Redwood v. Winona & St. Peter Land Co., 40 Minn. 512: 1‘ Such statutes are purely remedial in their nature, and only go to confirm existing obligations.” * * * “The principle of all the cases is that the taxing power, when acting within its legitimate ¡sphere, is one which knows no stopping place until it has accomplished the purpose for which it exists, viz., the actual enforcement and collection from every lawful object of taxation of its proportionate share of the public burdens; and, if prevented by an obstacle, it may return again ¡and again until, the way being clear, the tax is collected. ’ ’
In the case of King v. Mullins, 171 U. S. 404, the court said: ‘ ‘ The judiciary should be very reluctant to interfere with the taxing systems of a State, .and should never do so unless that which the State attempts to do is in palpable violation of the constitutional rights of the owners of property.”
The .Supreme Court of California said of an act of the Legislature providing for the collection of delinquent taxes for certain years: “It is difficult ¡to see upon what principle the power of the Legislature to do this can be denied. The Legislature, representing the mass of political powers, is only restrained by express limitations or restrictions in the Constitution. We see no limitations or restrictions on this subject. No obligation of a contract is invaded; property is not taken for public use without compensation; nor is it taken without due course of law. The citizen is only made to pay what he owes, and he is made to pay it in the ordinary mode adopted for the legal coercion of other debts. ” * * *
And, again: “The exercise of the taxing power is a sovereign attribute. The mode of ascertainment iand collection of the tax is a matter of legislative discretion. What the Legislature may do, as a general thing, it may do in its own way .and at its own time. There is a general power to tax; there is no restriction of mode, nor is there any limitation of time by the organic law. Unless restrained by the Constitution, the Legislature have plenary power over the subject. Upon what principie, then, can it be contended that the Legislature can not as well make .a man pay his taxes when, from accident or oversight, or his own remissness, the time for payment has passed, or the mere mode of charging him has not been followed, as they could in the first instance direct the tax?
“Tne question is, as to the mere power of the enforcement of a duty; and the exercise of the power may be made at iany time, so long as the duty remains.” People v. Seymour, 16 Cal. 332.
The only question involved in the case of State ex rel. v. K. C. & M. R. & B. Co., 106 Ark. 248, was whether the statute prior to the amendment of 1913 gave the State a remedy by way of review in cases of mere undervaluation of property or only where the assessing boards or officers had proceeded on the wrong basis of valuation, in omitting some property or element of value, or in adopting the wrong basis of estimating value. "What was said therein as to the finality of the. acts of assessing boards and officers had relation to that issue. It was said to be the declared policy to treat their findings as final except where otherwise expressly provided by statute. No question was raised or decided as to the extent of the legislative power to grant a remedy by review where there had been a mere undervaluation.
“It may be that such a law will work inconvenience and annoyance to the citizen, but all tax laws are odious ■and vexatious. It is said the 'citizen ought to know when he is through with the tax gatherer, but he will know when he has paid his taxes on his property according to its value. He will know then that he is secure against reassessment, and the law will protect him.” Street Railway v. Morrow, 87 Tenn. 406.
Such 'acts are of a remedial 'character, and are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power. Freeborn v. Smith, 2 Wall. 160; League v. Texas, 184 U. S. 156.
With the justice, wisdom, or policy, or propriety of a statute, the courts have nothing to do if there is no infringement of some constitutional provision. These are matters for legislative determination and the enactment of the statute expresses and declares the legislative judgment. 26 A. & E. Enc. Law 569; Com. Schl Dist. v. Oak Grove Sp. Schl. Dist., 102 Ark. 411.
It may be difficult for the reviewing courts to determine, after lapse of time, the true value of property alleged to have been undervalued, but this is not a constitutional objection to the act. The statute does not contemplate that any property will be made to bear .any greater burden of taxation than it would have borne if it had been originally assessed at its proper value. It expressly provides that the court may hear testimony, and that it shall determine the amount due. Kirby’s Digest, § § 7207, 7208.
It may not be possible to -ascertain -with certainty the exact value to be placed upon every piece of property so as to make it equal and uniform with the average valuation of -all property. “Absolute equality and uniformity ■are seldom, if ever, attainable. Shibley v. Ft. S. & V. B. Dist, supra; Stanley v. Supervisors of Albany, 121 U. S. 535.
It must ibe presumed that the co-urts will give persua- . sive force to all original assessments fairly made, and will not set them aside on account of mere error in judgment without clear and 'Satisfactory proof. This is demanded by sound policy and the natural justice of the case.
No question of innocent purchaser is presented by -the facts of the case, as the appellee has -at all times owned the property involved.
We conclude that the statute in controversy is not a statute for the classification of property for taxation. It was a legislative determination that property then within the jurisdiction -of the State had in past years escaped the payment in whole or in part of its just proportion of the burden of taxation, by reason of not having been -assessed -and valued upon a wrong basis or by reason of having been undervalued, and that it was for the best interest of the State that a remedy should be provided whereby the amount which should have been assessed against certain property may be ascertained -and the property forced to -contribute the full -amount of its proportionate -share of taxation. We can not -say that the f ailure to include within its terms individual as well as -corporate property was an arbitrary discrimination against corporations. It -can not be presumed that its enforcement will result in -unequal taxation. It should rather tend to make it equal and uniform.
The payment of a part -of the amount justly due did not release the tax debtor from his obligation to pay the balance. That one is compelled to pay what he justly owes while others are not sued, is not an infringement of any -constitutional right, nor even -a. just -cause of complaint. To compel all to be sued might result in such a burden of litigation as to make it not worth while to sue any. This was a matter for the exercise of the legislative judgment and discretion.
The legislative power to provide for the collection of taxes remaining unpaid by reason of an insufficient assessment or a failure to assess, can not be made to depend upon the cause or reason for the insufficient assessment or omission to assess; nor upon whether the action complained of was actually or constructively fraudulent, or the result of a mere error of judgment; nor upon whether there was a gross undervaluation or an undervaluation in less degree; nor, upon whether the property escaped taxiation entirely or only in part; nor whether the amount due is large or small.
Section 5, article 16, of the State Constitution, is satisfied by assessments and fixed methods of 'Collection of taxes according to the same rate and proportionate valuation and applies to prospective statutes, only. It has no ■application to statutes which only provide a remedy for the collection of taxes already past due. It was not intended to afford constitutional protection to the owner of property which has escaped taxation against the enforcement of his obligation unless all others similarly situated are compelled to pay.
While the general jurisdiction of courts of equity to correct errors in assessments is confined to cases of fraud or mistake, the power of the Legislature in that respect is not limited.
The complaint states a cause of action within the provisions of the statute, 'and it .therefore follows that the chancery court erred in sustaining the demurrer thereto and in dismissing the suit.
The cause is reversed and remanded with instructions to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.
