Western Union Tel. Co. v. Kennedy

69 So. 674 | Miss. | 1915

Cook, J.,

delivered the opinion of the court.

Appellant filed its bill of complaint in the chancery court of Lauderdale county, praying that the tax collector be enjoined from collecting certain taxes assessed to appellant on a certain telegraph pole line along the right of way of the New Orleans & Northeastern Railroad Company, between Meridian, in this, state and the Louisiana boundary line. The bill alleges that the property in question belonged to the railroad company and not to the complainant; that complainant appeared before the Railroad Commission “and protested that it whs not the owner of said poles,” but was merely operating a line of wires on said poles under a lease contract with the owners thereof. The tax collector answered the bill, and much testimony was heard by the court upon the question of the ownership of the pole line.

"We do not think it is necessary to discuss the question of ownership of the property upon which the assessment was levied, for the reason that this question of fact was threshed out before and determined by the Railroad Commission, if the allegations of the bill of complaint are to be taken as true. Looking to the case made by the bill, it appears that the Railroad Commission had under consideration the assessment of the pole line and to whom it should be assessed. The Commission assessed the property to appellant as owner thereof, and no direct appeal by certiorari was taken by appellant, but appellant invoked the aid of the chancery court.

• The chancery court was without power to grant the injunction, unless it appeared that the tax collector was attempting’ to collect the taxes levied “without authority •of law.” There can be no question that the Railroad Commission possessed the authority to assess the property and to determine the ownership thereof, and it is settled law of this state that the chancery court; has no jurisdiction to enjoin the assessment, unless the case made by the bill of complaint brings it within the terms of section 533, Code 1906. The bill of complaint merely states that the Railroad Commission was wrong in deciding that the pole line was the property of appellant, and we are of opinion that this decision cannot be reviewed by a bill in equity. The judgment of the Railroad Commission is valid on its face, and if it was entered without justification in fact the power to review the facts dehors the record cannot be assumed by the chancery court. The exclusive remedy is by certiorari to the circuit court. Railroad Co. v. Adams, 85 Miss. 772, 38 So. 348.

Affirmed„