Vicksburg Bank v. Adams, 74 Miss. 179

Vicksburg Bank v. Adams

74 Miss. 179 | Miss. | 1896

Lead Opinion

Whitfield, J.,

delivered the opinion of the court.

It was not competent to show, by parol, that the $10,000 assessed to the bank on the assessment roll, as money loaned or on deposit, was capital stock, because this was a completed roll. It had passed by the conjoint action of the citizen and *194the taxpayer into a completed record. The assessor had made his demand for the additional assessment. The bank had made its return. The assessor had entered the assessment formally on the assessment roll, and the bank had allowed the time within which it could have amended the misdescription (if it were one) to go by without pursuing the method for correction pointed out by the statute, and the board had approved the assessment. It is well settled by several decisions that in such case mere irregularities, such as misdescription, cannot be availed of by collateral attack, in the absence of fraud. It was competent to show by parol that $75,000 related to capital stock, and not to horses, etc., because that was not a completed assessment. The whole assessment was in fieri, and is now, in this suit, undergoing direct adjudication. In this last case it would seem that, without parol proof, a mere inspection 'of the face of the entry on the roll would disclose what is meant.

The bank had paid a sufficient privilege tax ($300) to protect it, so far as the privilege was concerned, from June 1, 1886, to June 1, 1887, and from June 1, 1887, to June 1, 1888, paying from June 1 to June 1; and so it paid a privilege tax of $750 from June 1, 1888, to June 1, 1890, for each of the two years. The fourth section of the act of March 8, 1888, provided that if a proper privilege tax had been paid before its passage, it should protect the privilege till the expiration of the license. This (taking $750 to be the proper amount, as found by the jury) protected the bank, so far as the privilege was concerned, for the years 1888 and 1889.

The return made by the bank to the auditor under the act of 1888, does not estop the bank from showing the truth. It, if incorrect, goes to the credibility of the officer making the return. It is a mode of ascertaining the assets of banks, but not the exclusive mode; and the act of 1888 changed the scheme of taxation, and exempted the bank, paying the proper privilege tax from ad valorem taxation. The case of Sun Ins. Co. v. Searles, 73 Miss., 62, has no application here. Penalty for *195making a false return is provided. We think the right result has been reached, and the judgment, both on the appeal and the cross appeal, is Affirmed.

Dabney de McCabe, contra.

Rehearing

Rehearing: A reargument was granted in this case, on the application of the bank, and it was argued a second time by the same counsel who represented the respective parties when the cause was first submitted, Dabney <& McCabe, for appellant, and Calhoon <& Green, for appellee.

Whitfield, J.,

delivered the opinion of the court.

A careful re-examination of this record has only strengthened the view first announced. It is perfectly manifest from the ‘ ‘ assessment ordinance ’ ’ that the list made by the assessor, and not the 10,000 fugitive lists returned by individual taxpayers, constitutes the assessment roll on which the board acts. Section 3 declares that the assessor and collector shall complete making his ‘ ‘ list, ’ etc., not ‘ ‘ lists. ’ ’ The singular is used, not the plural. Section 4 provides that ‘ ‘ the board of mayor and aldermen shall review and revise such list, ’ ’ .not ‘ ‘ lists. ’ ’ The singular, not the plural, is used. Section 5 provides that ‘ ‘ the board of mayor and aldermen will consider and pass on objections filed, and thereupon the assessor and collector shall make up his assessment rolls from the list so revised and passed upon,” etc., the singular, not the plural — “list,” not “lists” • — -being used. The opinion and judgment heretofore rendered are adhered to.

Motion to awa/rd damages.

After the delivery of the above opinion, a motion was made by Adams, state revenue agent, to amend the judgment of the court so as to award five per centum damages, under § 4360, code 1892, against the bank.

*196The following opinion was delivered on the motion:

Woods, O. J.,

delivered the opinion of the court.

The judgment appealed from in this case to this court was simply one declaring the appellant bank properly assessable for taxes whose assessment and payment the bank had escaped for the years 1886 and 1887, and fixing the valuation of the property, or the amount of the assessment, at $60,000 for each of said years. There was not, and, in the nature of the case, there could not have been, a judgment for a sum of money declared to be due from the bank to the city of Vicksburg. It is not a judgment for the possession of property, real or -personal; it is not a judgment for the dissolution of any restraining process; and it is not a judgment for the sale of property to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon property. The case is not embraced within the terms of § 4360, code 1892, and damages can only be awarded in the cases expressly provided for by the statute. Redd v. Thompson, 56 Miss., 230.

The judgment is in no proper sense one contemplated by § 4360, but is purely a judgment fixing an assessment on the bank for taxes not theretofore assessed or paid. In this judgment are two fundamental findings,- viz.: (1) That the bank’s property was liable to taxation; and (2) that the valuation of the property or the amount of the assessment was $60,000; but there is nothing more. There is no intimation in the judgment of any sum of money due by the bank, nor was there any necessity for any judgment for any sum. Liability to taxation being found by the judgment, and the amount of the assessment or the valuation of the property being also found by the judgment, the court below had reached the limit of jurisdiction in the matter. Without an appeal from that judgment, the city authorities would have proceeded to collect the municipal taxes in the manner prescribed by law, and, with an appeal and an affirmance of the judgment below, the city authorities will *197likewise proceed to collect the proper taxes; but the amount to be collected was not adjudged by the circuit court, nor was it within the province of that court so to do in this proceeding. Clark v. Bank, 61 Miss., 614.

Under this view as to the imposition of the damages sought to be secured by the motion now before us, it will readily be seen that we cannot allow the damages claimed in the motion.

Motion denied.