125 Ala. 413 | Ala. | 1899
Lead Opinion
'These cases originated in contested assessments of property supposed to have been subject to and to have escaped from taxation during the years from 1893 to 1S98, inclusive. In this court they were heard and submitted together and will be considered together.
The principal items 'assessed are shares of stock in foreign railroad corporations, ¡and in each case the question arises whether, by the revenue laws contained in the Codes of 1886 and 1896, respectively, such shares were subject to taxation as against a resident owner.
On the general, subject of taxing shares of corporate stock there are differences 'between the provisions of the former and those of the present Code. Neither of them expressly designates as taxable -shares in foreign corporations having no place of business or property in this State, though in each Code appears a general clause declaring subject to taxation “all other property, real and personal, not otherwise specified.”
• Shares in stock of corporations are property and by ■our statute they are made to come within the term, personal property.- — 'Code, § 3906, sulbdiv. 2. Such prop-N <erfy is -intangible and incapable of -having an actual location, and its anomalous character has given rise to some difficulty in fixing its legal situs. In Varner v. Calhoun, 48 Ala. 178, it was held that a taxon stock in a foreign corporation, though expressly named as taxable -by the existing statute, could not be collected. Tbat-\ decision, however, appeal’s to -be against the weight of authority and at variance with the principle declared by this court in Boyd v. Selma, 96 Ala. 144. The latter case, we think, asserts the true doc-trine, which is to the effect that, unless otherwise fixed by statute, the situs of shares of stock for the purpose of taxation is at the
With some exceptions founded on public policy and other peculiar grounds, taxing laws 'should be, and generally are, conformed to the principles of equality and natural justice, which require that the burden of maintaining public revenue should be rested upon all property within the jurisdiction. Out of this consideration, has grown a rule of construction to the effect that from statutes providing for taxation of property generally,, exemptions are not made except by clearly expressed, terms. — Cooley on Taxation, 146; Dauphin, etc. R. Co. v. Kennerly, 74 Ala. 583; Bank v. Billings, 4 Pet. (U. S.) 514; 25 Am. & Eng. Encyc. Law, 158.
By the Code of 1886 capital stock in domestic corporations is made taxable against the corporation itself' with deductions on account of other property which they are required to list for taxation.' — § 453, subdiv. 9, and § 478. Subdiv. 8 of § 451 directs that “the- share® of the capital stock of any company or corporation which is required to list its property for taxation in this- State shall not be assessed against the shareholders of such company or corporation.” This clause applies in terms: to shares of a particular class, and lia» no reference to corporations having no property list for taxation in this State. — McIver v. Robinson, 53 Ala. 456. The exemption and likewise the distinction made between the two classes of corporations could only have been inspired toy the consideration that the burden certainly imposed by our laws on property of the corporation would indirectly diminish the value of its stock, while in the of a corporation having no property within the jurisdiction, no such result could follow, except from foreign legislation, over which this State has no control and for which it is in no way responsible.
The -same spirit of legislation is discovered in the Code of 1896, but from it the exempting clause is omitted and in the schedule of taxable property there is
If there is anything in the suggestion made in appellee’s brief that deductions from .share assessments al-V lowed by the statute on account of assessments against property of the same corporation works undue discrimination as against shares in corporations having no property here to be so assessed and deducted, the infirmity lies in that part of the statute which allows the deduction, and not in that part which imposes the tax, though we do not intimate that there is any such infirmity. It does not follow’' that because a specially\ Revised plan of taxation be inadequate or abortive that property to which it relates will escape taxation, for it may be reached and taxed under general provisions where they are adequate. — Sumter Co. v. Bank of Gainesville, 62 Ala. 464.
As against the validity of the assessments against appellees, other than those shares of railroad stock, nothing has been suggested which requires particular consideration.
Tax assessments made in the line of official duty are entitled to the usual presumption of correctness which attends the acts of public officers. — Perry Co. v. Selma, etc., Railway Co., 65 Ala. 391; 25 Am. & Eng. Encyc. of Law, 286 ; 2 Destv on ’Taxation, pp. 615, 616. The of assessing for escaped taxes and of making a list and return thereof is by the statute imperatively enjoined upon the assessor, and such list and return is of equal dignity as evidence with lists made f or the current year. ’The evidence introduced upon the trial tended 'to show a valid assessment of property 'in both these cases and in each of them the circuit court erred, in giving the general affirmative charge for the defendant.
The judgment must be reversed and the cause remanded. ,
Rehearing
Jn the record and briefs furnished on the original submission we found no objection urged to the assessments on account of form or irregularity in the manner in which they were made; hence nothing was said on that subject in the opinion first rendered.
Minute entries of the commissioners’ court appearing; in the transcript show that in the case against Mrs.. Kidd individually, and likewise, in the case against her' as executrix, she had notice of the assessments; and that she appeared by counsel to contest them. The defense-set up in the special answer filed in the one case;, and adopted in the other, is not that the manner of assessing was had, but “that the property sought to be taxed in said assessment” is not taxable for the reasons, and facts averred. As appears by the hill of exceptions, the assessment list, supplemented by the report made by the assessor to the commissioner’s court wereoifered in evidence for the stated purpose “of showing that the said assessment had in fact been made, and upon what property and for what years it was made.” The failure to object to this evidence was a waiver of objections not going to the total invalidity of the as-
Except where taxes are authorized to be imposed and collected only according to specal statutes- requiring strict construction, irregularities- -and informalities in-assessments do not render them- void. “No objection which does not go to the groundwork of -the tax, so as to-materially affect its -principle, and show it must necessarily he involved, ought to have the effect of rendering the whole invalid.” — 2 Desty on Taxation, § 115, pp. 611, 612. That the description of property in thescN assessments is not more -specific is not fatal to their validity, even if it does not conform precisely to requirements of the statute. Respecting the assessment of personal, ns distinguished from real, property, it is-in general sufficient to uphold the proceedings if the description be made with such reasonable certainty as will' inform the taxpayer for what he is to be taxed. — People v. Home Ins. Co., 29 Cal. 533; San Francisco v. Pennie, 93 Cal., 465; San Francisco v. Flood, 64 Cal. 504; 25
Rehearing denied.
Dissenting Opinion
dissenting. — It is of no consequence that the defendant in the court below, made no objection' to the introduction in evidence of the list purporting to be the assessment made by the tax-assessor. The burden was upon the plaintiff to show a valid assessment. lithe list introduced in evidence was valid, the plaintiff of necessity failed to make out its ease, and the affirmative charge was properly given for the defendant. If the infirmity went to its invalidity, it cannot support, a judgment.
There is not the semblance of compliance with § 3948 requiring a description of the property and the value of the items assessed. Nor was it shown that the assessor entered the assessment in his 'book under the head of “Commissioner’s Assessment of Escaped Taxes,” as-required by the act approved February 3, 1897. — Acts 1896-7, p. 521. In my opinion the conclusion cannot be-escaped, from an examination of these statutes and the act, that their provisions are mandatory, being for the-benefit of the tax-payer, and in order to constitute a valid assessment, there must be a compliance with them. State Auditor v. Jackson County, 65 Ala. 156, and authorities therein cited and reviewed; 25 Am. & Eng. Encyc. Law, 210; Burroughs on Taxation, § 95. In Desty on Taxation, p. 612, it is said: “In the assessment of property for taxation one rule is plain, and well settled, that all those measures which are intended for the security of the citizen for securing equality of taxes, and to enable errery one to know with reasonable certainty for what polls and what real estate and personal property lie is taxed, and for what others liable with Mm are taxed, are conditions precedent.” In Welty on Law of Assessments, p. 15, it is said: “The form- of the assessment roll is usually the subject of statutory regulation. When a form is preeribed, the assessment must, at least substantially, conform to it. It is a substantial right
Another error was committed by the court in indulging the presumption upon which the plaintiff is allowed to make out its case. To my mind, this position is absolutely untenable. It is made the duty of the tax-assessor in the first instance, to assess all property belonging to tax-pavers in his county, and also to assess escaped taxes upon all property, upon discovering that any prop
What I have said being conclusive, in my opinion, against the rights of the plaint iff to recover, it is unnecessary to discuss the constitutional question.
