Opinion
Nos. 30752, 30753.
November 20, 1933.
TAXATION.
State tax commission has power to assess electric power company only as to property not situated wholly in one county, and property wholly within one county may be assessed by county or city authorities (Code 1930, sections 3204, 3208, 3209, as amended by Laws 1932, chapter 291, sections 1-3).
APPEAL from Circuit Court of Jones County.
S.L. McLaurin, of Brandon, and May, Sanders, McLaurin Byrd, of Jackson, for appellant.
If only the state tax commissioners are the assessors of such property, then the judgment appealed from should be affirmed; but, if the local taxing authorities are invested with the power to make the additional assessment, or in other words, if the county tax assessor, under the law, is the assessor of such property situated wholly within his county, then the judgment appealed from must be reversed and the cause remanded.
We maintain that unless this property — an electric lighting franchise in a municipality and an electric distribution system operated wholly within the municipality and wholly within one county — is situated in more than one county, then, under section 3208, Code of 1930, the state tax commission has no power to make the assessment, but that it can only be made by the local taxing authorities. Section 3208, Code of 1930, was first enacted as chapter 138, Laws 1918; later amended by chapter 127, Laws 1926; brought forward as section 3208, Code of 1930, and amended by section 2, chapter 291, Laws 1932.
Considering the history of this legislation, the conclusion is inescapable to us that properties embraced within the language of the statute, as being assessable by the state tax commission, can only be assessed by the state tax commission, and if this property was not situated wholly within Jones county, under section 3208 — being property specifically named in section 3208 — it would be assessable by the state tax commission; but since it is property specifically named in section 3208 and is situated wholly within one county, then it seems obvious that it must be assessed by the local taxing authorities, as otherwise the language in section 3208, "any electric power and light company owning property not situated wholly in one county," or particularly the words "not situated wholly in one county" would be meaningless.
The meaning and effect of paragraph (a), section 1, chapter 291, Laws of 1932, is that this provision directs the apportionment of the assessed value of such public utility, as the preceding paragraph of section 1 makes it the duty of the state tax commission to assess for taxation.
This is one class of properties to be assessed by the railroad assessors. The other class of properties to be assesed by the railroad assessors is "any telephone, water works or electric power and/or any electric light company property not situated wholly in one county . . ."
The property here involved (electric power and/or any electric light company property situated wholly in one county) does not come within either class of properties required to be assessed by railroad assessors, because it is situated wholly within one county. Hence, paragraph (a) does not affect this property but only affects the property within one of the two classes above enumerated; thus leaving electric light company property situated wholly within one county, and not included in either of the two classes required to be assessed by the railroad assessors, in another class to be assessed for taxation by the local taxing authorities before whom this proceeding was commenced.
If the court should hold that chapter 291, Laws 1932, directs the state tax commission to assess the property here involved, for the period involved, to-wit: the years 1928, 1929 and 1930, then this statute would be violative of section 112 of the constitution, because of the mandatory provision of said chapter 291, in section 4 of the act.
Giving effect to this section would require the property to be valued and assessed as of January 1, 1932; whereas, the true value of the property for each of the years 1928, 1929 and 1930, might be materially different from the value as of January 1, 1932. This section clearly implies that the act, of which it is a part, is to have prospective operation only, commencing with the year of its enactment — 1932.
C.S. Street and Deavours Hilbun, all of Laurel, and T.J. Wills, of Hattiesburg, for appellee.
While there is nothing in the record to show that the taxpayer against whom the taxes are sought to be levied on, did not own other like property situated outside of Jones county, but assuming for the sake of argument, that it is true that the property involved in situated wholly in Jones county, nevertheless the judgment of the lower court is proper.
Teche Lines, Inc., v. Board of Supervisors of Forrest County, 143 So. 486; Section 3200, Code of 1930; Paragraph A, chapter 291, Laws of Mississippi of 1932.
We submit that the Teche Lines case, 143 So. 496, settles this contention in favor of appellees. But should there be any doubt as to the rule adopted by the court in that case, this doubt is completely removed by the enactment of May 18, 1932, of chapter 291 of the Laws of 1932, and especially by paragraph A thereof.
Chapter 291, Laws of 1932, was approved May 18, 1932. The hearing before the board of supervisors and the trial in the circuit court were all had subsequent to the enactment of the said chapter 291, Laws of 1932.
The said chapter merely provides a method of procedure and a remedy for the proper assessment of taxes of property of the kind and character involved in this suit. No substantive rights are involved.
The presumption against retrospective construction of statutes as a general rule does not apply to statues that relate merely to remedies and modes of procedure.
59 C.J., pp. 1173-4, section 700; 36 Cyc. 1213; Belcher v. Mhoon, 47 Miss. 613; Easterling Lumber Co. v. Pierce, 64 So. 465; Myers et al. v. Lamb-Fish Lumber Company, 64 So. 728.
The meaning and effect of paragraph A, section 1, chapter 291, Laws of 1932, is directory to the state railroad assessors only and directs them to do.
We do not at all contend that chapter 291, Laws of 1932, confers the power upon the state tax commission to assess the property of electric power and electric light companies. Section 3200 of the Code of 1930, specifically designates and empowers the state tax commission as the assessors of railroads and other public service corporations to make the assessments. That section is practically the same as section 1, chapter 138, Laws of 1916, so that, according to our interpretation of the law, the state tax commission were the assessors of electric light and power companies. The provision of chapter 291, Laws of 1932, is only directory and points out the manner in which the tax commission, as assessors of the particular property, shall proceed in making the assessment.
The state tax commission has been the assessor of railroads and of public service corporations since the passage of chapter 138, Laws of 1916. Chapter 291, Laws of 1932, is directory only.
Chapter 291 of the Laws of 1932, is in no sense a delegation of power to the state tax assessors. It is a specific direction to them as to how they should exercise the powers granted to them by section 3200 of the Code of 1930.
The authority to make the assessment of a public service corporation, whose property is located wholly within one county, was conferred on the state tax commission by section 1, chapter 138, Laws of 1916, and has in no wise since been abridged. Chapter 291, Laws of 1932, only directs how the power, so conferred, shall be exercised.
There is no constitutional inhibition against a special mode of valuation and assessment for railroads, and railroad and other corporate property. To the contrary such valuation and assessment is expressly conferred by section 112.
We submit that the legislature, in the statutes, has clearly deprived the local assessing authorities of the power to assess property of the character here involved; that paragraph A, section 1, chapter 291, Laws of 1932, is not violative of section 112 of the constitution; that the statutes hereinbefore referred to have invested the power to assess the property here involved in the state tax commission.
Argued orally by J.L. Byrd, for appellant, and by C.S. Street and Henry Hilbun, for appellee.
Proceedings were begun by the revenue agent before the board of supervisors of Jones county, and the board of mayor and aldermen of the city of Laurel, to back assess for state, county, and municipal taxes for the years 1928, 1929, and 1930, an electric light plant owned by the appellee, wholly situated in Jones county, and alleged to have escaped taxation for those years. The boards declined to make the assessment, and on appeals to the court below the proceedings were dismissed on the ground that the boards had no power to make the assessments.
These boards have this power, unless it has been conferred upon the state tax commission.
The power given to the state tax commission to assess property is conferred by section 3200 et seq., Code 1930, as amended, is limited to public utilities, and, in so far as property of electric power and light companies is concerned, is limited to property not situated wholly in one county. This is clear from sections 3204, 3208, and 3209, Code 1930, which were amended by chapter 291, Laws 1932 (sections 1-3), sections 3208 and 3209 remaining, in so far as electric power and light companies are concerned, as they appeared in the Code of 1930. Section 3204, however, was amended so as to read as follows: "Method for Assessing Said Companies. — The state railroad assessors shall, if practicable, on or before the first Monday of June, and if impracticable, as soon thereafter as it can be done, in each year, make out for each county having any railroad, telegraph, sleeping car, palace car, dining car, express, gas (natural or artificial), street, suburban and interurban railway (including motor bus companies operating as street cars) and pipe line company property therein; and any telephone, water works or electric power and/or any electric light company property not situated wholly in one county, therein, an assessment roll of such property, both real and personal, tangible and intangible, and the same may be in such form as they may prescribe as nearly in conformity with ordinary assessment rolls as convenient and practicable. The said railroad assessor shall apportion the value of the property of all public utilities or other persons, companies, or associations assessed according to the provisions of this act as follows: (a) When all the property of such public utility is located within the limits of a county, the assessed value thereof shall be apportioned by the railroad assessors between the several municipalities, school districts, road districts, levee districts, and other taxing districts therein, in the proportion which the property located within the several municipalities, school districts, road districts, levee districts and other taxing districts in question, bears to the entire value of the property of such public utility, as ascertained and valued as herein provided, so that, to each municipality, school district, road district, levee district, and other taxing district contained therein there shall be apportioned such part of the entire valuation as will fairly equalize the relative value of the property therein located to the whole value thereof."
Paragraph (b) provides for the apportionment of an assessment when the property assessed is located in more than one county.
It will be observed that these three sections authorize the state tax commission to assess electric power and light companies only when their property is "not situated wholly in one county," unless paragraph (a) of section 1 of chapter 291, Laws 1932, amending section 3204, Code 1930, enlarges this grant of power so as to include property situated wholly in one county.
Paragraphs (a) and (b) of section 1 deal with the apportionment of assessments made by the state tax commission to counties and other taxing districts, and are introduced by the words, "The said railroad assessor shall apportion the value of the property of all public utilities or other persons, companies, or associations assessed according to the provisions of this act," thus preserving the grant of, and limitation on, the power to assess conferred by the other sections and recognized in the preceding paragraph of section 3204, Code 1930.
For the state tax commission to assess property owned by an electric power and light company, according to the provisions of the statute, such an assessment must be confined to such property as is not situated wholly in one county.
Paragraph (a) may refer to the assessment of public utilities mentioned in the statute other than electric power and light companies, as to which we express no opinion; but it does not apply to the property of the latter.
The judgment of the court below will be reversed, and the causes remanded.
Reversed and remanded.