Opinion
No. 33651.
April 10, 1939. Suggestion of Error Overruled May 22, 1939.
1. TAXATION.
That taxpayer's cut-over land could not be devoted to a profitable use, although remaining cut-over lands in county could be so adapted, did not establish discrimination in assessment of all cut-over lands in county at same figure.
2. JUDGMENT.
A suit by state tax collector to collect taxes for years 1934, 1935, and 1936 did not involve collection of taxes for year 1937, and therefore consent decree purporting to fix valuation of land for biennium of 1936-1937 was not conclusive on question of valuation for year 1937 in suit to enjoin sale of land for delinquent taxes for that year.
3. TAXATION.
Where county supervisors' alleged consent to compromise in state tax collector's suit to collect taxes for years 1934, 1935, and 1936 related only to taxes for those years, and land valuation for year 1937 was not reduced by any affirmative action of supervisors, provision of compromise agreement purporting to fix valuation for year 1937 did not preclude collection of taxes for year 1937, based on original assessment for biennium of 1936-1937.
4. TAXATION.
The statute providing that assessment roll should only be prima facie correct in actions for recovery of ad valorem taxes did not apply in taxpayer's suit to enjoin sale of land for delinquent taxes (Code 1930, section 3122).
APPEAL from the chancery court of Simpson county; HON. BEN STEVENS, Chancellor.
T.J. Wills, of Hattiesburg, for appellant.
Section 3122 of the Code of 1930 provides that every lawful tax assessed, levied or imposed by the state, county, etc., is a debt due by the person or corporation owning the property, etc., and may be recovered by action and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct.
Section 100 of the Constitution of the State of Mississippi provides that no obligation or liability held or owned by the state shall be remitted, released, postponed or in any way diminished by the Legislature nor shall it be in any wise extinguished without payment to the proper officer and by payment of its face value. The Legislature, however, may provide by general laws the compromise of doubtful claims. This tax was not a doubtful claim, it was a debt, but the assessment roll was not a final adjudication. The Legislature said, in the second of the code above cited, that the assessment roll should be prima facie only when the question of the value of the property arose that became a question of consideration and determination to fix the amount of the debt due so as to conform to the constitutional requirements both of the state constitution and the federal constitution guaranteeing to a person that his property should not be taken without due process of law and at the same time not transgress the provision of section 100 of the State Constitution prohibiting the compromise and rebates of claims held by the state.
Section 112 of the Constitution of the State of Mississippi provides that property shall be assessed at its true value. True value, as used in this sense, means actual value. Any assessment in excess of the actual value of the property would be in contravention of the constitutional provision and void. The taxpayer in this case respectfully presents to this court this case upon the proposition that the land is shown, without dispute in this record, to be worth $1.50 an acre and that any assessment above that amount, unless agreed to and assent given by the owner, would be void. The owner, appellant, in the suit brought by the state for the taxes for 1934, 1935 and 1936 consented to an assessment of $2.25 an acre and by that consent the taxpayer, this appellant, is bound. The state and the county, having consented through the authorized agent, the State Tax Collector, to that valuation for the two biennial periods is likewise bound.
Property, under the constitution, must be assessed at its true value. It must be equalized so as to be equal and uniform and if either must yield to the other the true value provision must yield to a lower value to conform to the requirements of the 14th Amendment to the Constitution of the United States. True value, however, cannot yield to the placing of a higher value than the actual value for taxation purposes without likewise contravening the 14th amendment to the Constitution of the United States and violating the provisions of section 112 of the Constitution of the state.
Knox v. Paper Co., 108 So. 288; Bank v. Supervisors of Harrison County, 127 So. 688.
W.M. Lofton, of Mendenhall, for appellee.
It is our contention that the undisputed and uncontradicted testimony in this case shows that the said lands were not assessed at a higher valuation than lands of similar kind and character owned by other parties, but still if there was any testimony to that effect certainly there would not be enough for this court to reverse the decree of the lower court, on the finding of the facts of the lower court. We assume that this proposition of law is so well settled until it is not necessary to cite any authorities to support the same.
Appellant, in its brief, cites section 100 of the Constitution of the State of Mississippi, which provides among other things that no obligation or liability of any person, association, or corporation held or owned by this state or levee board, or any county, city or town thereof, shall ever be remitted, released or postponed, etc., but we fail to see where this authority affords or furnishes any comfort to the appellant, but certainly it furnishes the appellee abundant authority to press his claim for the collection of the full amount of taxes now long since past due and owing to the State of Mississippi and also to Simpson County. Of course, that section does provide that the Legislature may pass general laws for the compromise of doubtful claims, but the claim for the full amount of the taxes due as shown by the answer made to the bill of complaint, is certainly not a doubtful claim, in our opinion, but, at any rate, it cannot aid the cause of the appellant.
Appellant, in its brief proceeds to cite certain authorities to support its contention that taxation shall be uniform and equal throughout the state, in addition to the section of the Constitution mentioned, the same being as follows, to-wit: Knox v. Paper Co., 108 So. 288; Bank v. Supervisors of Harrison County, 127 So. 688. Certainly these cases announce the law, which requires that all property be assessed at its true value, and that the assessment thereof shall be uniform and equal. We certainly subscribe to the views expressed by the court in these two cases, and as the record in the case before this court shows that the assessment of the lands of appellant was fixed at the same price as that of other lands of like kind and character, and that the assessment of said lands of appellant was uniform and equal throughout the county with other lands of like kind and character regardless of who were the owners thereof. So we insist that the authorities cited by appellant fully support the actions of the chancery court in said cause in rendering a decree in favor of appellee.
Appellee now submits to the court that he was in error as to the law, when he as the defendant in the court below submitted his motion for the allowance of damages. After this motion had been filed, the said defendant in the court below discovered that he was in error, and so he on a later day submitted another motion for the allowance for damages. So appellee now submits that he is entitled to damages upon the dissolution of said injunction, in accordance with section 422 of the Mississippi Code of 1930, and in further support of that view of the case, appellee cites Bullen v. Smith, 146 Miss. 316, 111 So. 454. Under these authorities the decree of the chancery court made an allowance to the defendant in that court of 10% on the sum of $1465.94, that being the amount of the collection enjoined, or damages in the sum of $146.59, and we respectfully submit that the lower court was correct in this adjudication of the amount of damages, and we further submit that this court will so hold.
Argued orally by W.M. Lofton, for appellee.
From a final decree dissolving an injunction against the sale of land for taxes, and which assessed the statutory damages and costs against the appellant, and dismissed its bill of complaint, this appeal is taken.
During the year 1934, the appellant owned certain lands situated in Smith and Simpson counties, known as "cut-over" lands, assessed at $3.50 per acre for the biennium of 1934-1935, and which were sold to the state in September, 1935, for the delinquent taxes thereon for the year 1934. The regularity and legality of the assessment rolls for that period are not questioned, except that it is claimed that there was an over-valuation of the lands on the assessment rolls; although no objections were filed by the owner before the boards of supervisors of the respective counties, as provided for by section 3166 of the Code of 1930; nor was there an appeal taken from the order of final approval of the assessment rolls.
During the period allowed for redemption, the lands were again assessed to the appellant for the biennium of 1936-1937, at the same value per acre, and under the same circumstances above stated.
The bill of complaint alleges that the sale of the lands to the state for the taxes of 1934 was void because of a failure of the sheriff and tax collector to make the sale in the manner required by law; that thereafter the State of Mississippi, through its state tax collector, filed suit in the Chancery Court of Smith County to collect the taxes for the years 1934, 1935 and 1936 as a debt owing by the appellant to the state, and to the two counties and the taxing districts thereof; that it was alleged in such suit and admitted in the answer of the appellant as defendant therein that the tax sale hereinbefore mentioned was null and void; that the said suit was compromised and settled by a consent decree wherein it was agreed that the valuation of the lands in both of said counties for the biennium of 1934-1935 and for the biennium of 1936-1937, in order to equalize the same with the valuation placed upon other lands on said rolls, should be $2.25 per acre, as a just, reasonable and comparative equalization in value to be placed upon said lands in each of the counties for the years 1934, 1935 and 1936; that such consent decree recited that the defendant in said suit, South Mississippi Land Company, was indebted to the state, the counties and the various taxing districts thereof, for the taxes for each of said years, computed on that valuation, and which taxes amounted to the sum of $10,616.94 due on the lands located in Simpson county, and the sum of $27,714.90 due on the lands located in Smith county; and that said sums were to be paid to J.B. Gully, State Tax Collector, as complainant in such suit, who was authorized, after deducting his lawful commissions of 20%, to allocate said sums accordingly.
The said consent decree is filed as an exhibit to the bill of complaint in the present suit against the appellee to enjoin a sale of the lands located in Simpson county, which were advertised to be made in 1938 for the delinquent taxes due thereon for the year 1937 on the basis of the assessment of $3.50 per acre for the biennium of 1936-1937; and in addition thereto the bill alleges an overvaluation of said lands under such assessment and a discrimination against the appellant in the valuation thereof for said period as compared with other such lands in that county.
Upon the trial of the case at bar, the appellant offered in evidence the former decree and the testimony of one witness, who stated that the lands had been overvalued in the assessment, covering the year 1937, for the reason that the lands were worth only $1.50 an acre and had been appraised by the United States Government, as a prospective purchaser, at that amount. It appears that all of the cut-over lands in that county were assessed at $3.50 per acre for the period in question, and it was therefore not shown that there had been any discrimination against the appellant in the making of such assessment, unless such discrimination was shown by the testimony of said witness to the effect that the remaining cut-over lands in the county were attached to small farms and could be adapted to a profitable use by the owners for pasturage and other purposes while the lands in question were producing no revenue and were not capable of being devoted to a profitable use. We do not think that such fact was sufficient to show a discrimination.
The appellant further contends that the former decree was conclusive as to the valuation to be placed upon said lands for the year 1937, for the reason that the state tax collector, as complainant in the former suit, was authorized to represent the State of Missouri, Simpson County, and the taxing districts in said county, in such suit, and to make the compromise settlement represented by such consent decree. However, we are of the opinion that, without regard to what force should be given to such former decree on the issue here involved, the suit did not involve the collection of the taxes for the year 1937, and the decree therein recited that: "when the aforesaid payments shall have been made, all liens for taxes against the lands for the years 1934, 1935 and 1936 shall be and the same are hereby cancelled, annulled and held for naught, and the title to all said lands declared to be free from tax liens for the said years of 1934, 1935, and 1936." In other words, the state tax collector did not undertake to waive any lien for the taxes on the lands for the year 1937, nor did he have authority so to do. No claim therefor against the appellant was involved in that suit.
It is also contended that before the former decree was entered, the chancellor caused the members of the board of supervisors of Simpson County to be summoned and to appear in open court, and that they then consented to and approved the proposed compromise and settlement. Whatever their appearance in court as individual members of the board of supervisors and their approval of the proposed settlement may have had, if any, on the authority of the state tax collector to make such settlement with the appellant, there was not submitted to them for approval any amount of taxes to be paid in the compromise except for the years 1934, 1935 and 1936. No reduction having been made in the valuation of the land on the assessment rolls in Simpson County for the year 1937, by some affirmative action on the part of the board of supervisors, the roll as it stood when the taxes became due for that year constituted the warrant for the appellee, sheriff and tax collector of the county, to enforce the collection of the taxes levied and assessed thereon by a sale of the lands as advertised to be made. The injunction herein could not be sustained to prevent the sale, and the action of the court below in dissolving the injunction was proper.
Neither does section 3122 of the Code of 1930, providing that: "in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct," aid the appellant's position in this case, for the reason that the present suit is not one for the recovery of the taxes for the year 1937 in an action of debt brought against the owner under said statute.
Affirmed.