Yazoo & Mississippi Valley Railroad v. Adams, 73 Miss. 648

73 Miss. 648 | Miss. | 1895

Cooper, C. J.,

delivered the opinion of the court.

The state revenue agent gave notice to the state railroad commission, in its capacity of railroad tax assessor, that the Louisville, New Orleans & Texas railroad (a corporation formerly existing in this state, whose property and franchise is now claimed by the appellant, by virtue of a consolidation of said company with it) was delinquent for taxes due to the state, and the counties in which said road is situated, for the years 1886, 1887, 1888, 1889, 1890 and 1891, by reason of its property having escaped taxation for those years, and required said commission to proceed to assess said property for said years, as an additional assessment for taxation. Notice was given by the commission to the appellants, as the owners of the property, who appeared before said commission, and set up many objections to further action by the commission. The objections were overruled, and the appellants were required, on a day named by the commission, to file schedules of the property, in order that it might be assessed for taxation. Before the day named, the appellants sought and obtained an injunction, restraining the state revenue agent and the commission from further proceeding in the assessment. The defendants answered the bill, and moved to dissolve the injunction on bill, answer, exhibits and proof. This motion was sustained and the injunction dissolved, and from the decree this appeal is taken.

The appellants’ first contention is that. ‘‘ the railroad commission has no jurisdiction to assess railroad taxes back of the year 1892.” Prior to the adoption of the code of 1892, certain officers of the state were by law created as a board for the assessment of the property of the railroads in this state for taxation. Rev. code of 1880, §§ 599-608.

By the code of 1892 (§§ 3875-3886) the duty of assessing the property of railroads, telegraph, express and sleeping cars was devolved upon the state railroad commission. These provisions are found in the chapter on revenue, and they are in the language of prospective action — as, that the commission ‘ ‘ shall assess,” etc. Chapter 126 of this code provided for the office of state revenue agent, whose duties and powers, inter alia, were to assess “ any person, corporation, property, business, occupation or calling, liable to an ad valorem or privilege tax,” which had escaped, or should escape, taxation, ‘ ‘ by reason of not being assessed, or of not being demanded or otherwise,” “ and to collect and'pay over the taxes thereon in like cases.”

In The State v. Tonella, 70 Miss., 701, we held that so much of chapter 126 as devolved upon the revenue agent the power to make assessments was unconstitutional. That case was decided at the March term of 1893 of this court. By an act approved February 7, 1891 (Acts of 1891, p. 29) the legislature amended chapter 126 of the code. Under this act, the agent, if he discovers that persons or property have escaped taxation in former years, is directed to give notice to the proper authorities, who are then required, upon due notice and examination, to assess such persons or property, if of right it should be done. Section 4 of this act provides that ‘‘ if the property which the revenue agent discovers to have escaped taxation, shall belong to any railroad or other corporation which, under the law, is required to be assessed by the state railroad assessors, the revenue agent shall give the notice required herein to said railroad assessors, and they shall give the required notice to the company or corporation. At their next meeting, after giving the proper notice, said property shall be assessed in the same manner required by law, and placed on the proper county, municipal or levee board roll, and collected by the proper officers in the manner required by law. ’ ’ The contention of counsel for appellants is this: The duty of assessing taxes was first devolved upon the railroad commission by the code of 1892. The language of the code chapter on revenue, in which this duty is devolved, relates only to the future. The act of 1894 authorizes the revenue agent to give notice to the railroad assessors only as to property which the railroad assessors are required by law — viz., by the code of 1892 — to assess; and since the revenue chapter of that code only devolved upon the railroad assessors the duty or power to assess property for purposes of future taxation — i. e., taxation for years subsequent to the year 1892 — they have no power to assess property which has escaped taxation for any year prior to that of 1892. The insuperable obstacle to this construction of the statutes is that we are confronted at every step by a manifest contrary legislative purpose. The whole scheme looks to the subjection now of all property which, since the year 1886, ought to have been taxed, but which, for any reason, has escaped taxation. The legislature did not overlook the fact that the power of assessing the property of certain corporations is now conferred upon the railroad commission, and that the county' authorities have no power so to act. By § 4 of the act of 1894, the revenue agent is directed to make report to the commission of the property of such corporations discovered by him £ £ to have escaped taxation, ’ ’ and the commission is thereupon directed to give the notices required by law, and to assess such property. Authority to do an act is necessarily implied from the direction to do it.. Nor does the act of 1894 leave any doubt for what precedent years the property was to be assessed. By § 6 it is declared that the £ £ revenue agent shall have power to sue for, collect and have assessed as herein required, delinquent taxes or taxes that have escaped the assessor and collector, back to and including the year 1886, and no further. ” It is true this section is in part a limitation upon the exercise of the power conferred by the act, in that the revenue agent is not permitted to go behind the year 1886. But it also shows that the legislative purpose was that property of all description which had escaped taxation for any year from 1886, inclusive, should be subjected to taxation under the act. The section expressly says that the agent, as to such years, ‘ ‘ shall have power to sue for, collect and have assessed as herein required, ’ ’ etc.

If the matters involved are committed by law to the jurisdiction of the commission, the next question for consideration is whether at this stage of the proceeding a court of equity should interfere by inj unction to restrain action upon any state of facts alleged by the owner of the property, going only to1 show that in the particular case no assessment ought to be made.

By providing for notice to the owner, and thus affording to him the opportunity of interposing his objections to the assessment of the property, the determination of all questions of fact necessarily involved in the inquiry is submitted by law to the tribunal having jurisdiction in the premises. The question of the force and effect of an adjudication by the commission is not involved, nor can it be properly decided in this cause. The single inquiry is whether a court of chancery should, by virtue of its general or statutory jurisdiction, draw to'itself and from the commission the decision of such facts. We have statutes upon the subject of enjoining the collection of taxes, which, in our opinion, exclude a resort to equity under the circumstances existing in this cause.

By § 483 of the code it is provided that “ the chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town or village, to restrain the collection of any taxes levied, or attempted to be collected, without authority of law. ’ ’.

Section 484 provides that “ upon the dissolution of any such injunction, the chancellor or court ordering it dissolved shall enter a decree against the person suing out the same and the sureties on his injunction bond, for the amount of taxes so enjoined and ten per centum thereon, and all costs of suit,” etc.

Section 561 declares that “ an injunction shall not be granted to stay the collection of state, county, city, town or village taxes, unless upon condition that, before its issuance, the party obtaining it shall enter into bond, payable to the state, with two or more sufficient sureties, to be approved as in case of other injunctions, in a penalty at least equal to double the amount of taxes sought to be enjoined, conditioned for the prompt payment of the taxes enjoined, and damages and costs in case the injunction shall be dissolved.”

Whatever may be the class of cases in which a court of chancery will intervene by injunction, in the absence of a statute, to enjoin the collection of taxes, it has always been exercised with great caution, and on the ground that irreparable injury would flow from its refusal to interfere; irreparable, of course, in the sense that no adequate remedy for the prevention of the injury or its reparation was within reach of the party otherwise than by injunction. But our statute opens the door, and permits a recourse to equity whenever the tax ‘ ‘ levied or sought to be collected ’ ’ is without authority of law.

But the rights of the state and of its municipalities is preserved by requiring, as a condition precedent to the remedy by injunction, that a bond with sufficient sureties, and in a sufficient penalty to insure the prompt payment of. whatever may be found to be legally due, shall be executed. The manifest scheme is that if one goes into equity to challenge the legality of a tax, he shall finally settle all that is justly due, and shall give security that he will do so.

The contention of counsel that an injunction is allowable, under the statute, against a proceeding to assess property, because it is “an attempt to collect ” them within the meaning of § 483 of the code, cannot be maintained. In this state we have several sorts of taxes: (1) An ad valorem tax, as to which an assessment of the property on which it is imposed is essential, (2) privilege taxes imposed by statute upon occupations, (3) an acreage tax charged by law upon the lands in the levee districts, without regard to value. The amount of occupation and acreage taxes being fixed by the statute, a court of chancery decreeing the dissolution of an injunction could, by a mere computation, determine for what sum its decree should be made, and the amount sought to be collected would measure the penalty of the bond required by the statute. But where the tax ‘‘ levied or sought to be collected ” is an ad valorem tax, unless an assessment of the property sought to be charged is first made, the penalty of the bond cannot be fixed, nor can the court, on dissolution of the injunction, render a decree for the amount of taxes legally due, for what taxes would be due would be determinable only upon an assessment of the property, and a chancery court has neither the machinery nor the power to make such assessment.

Without expressing any views upon the merits of the controversy sought to be drawn into the chancery court, we are of opinion that the injunction was properly dissolved, and the decree is

Affirmed.