Adams v. Mississippi State Bank

75 Miss. 701

Opinion

Truly, Special J.,

delivered the opinion of the court.

This suit was brought by the state revenue agent, in the circuit court of Madison county, to recover certain balances of unpaid municipal taxes, claimed to be due by the Mississippi State Bank, for the years 1894 and 1895, to the city of Canton, in which said bank is located. The city of Canton levied an ad valorem tax of twelve mills for the year 1894, and of eleven mills for the year 1895, on all property subject to taxation. The bank paid six mills in 1894 and five mills in 1895, claiming immunity from further municipal taxation, under section 3, chapter 29, acts 1894. It will be observed that the amount paid by the bank in 1894 and 1895, was the amount of the state tax for the corresponding year. The provision of said section 3 relied on, declares that “no city or town shall impose or collect greater tax on banks or solvent credits than the state tax for the same year. ’ ’ This provision, it is urged by counsel for appellant, is obnoxious to and violative of several sections of the state constitution of 1890, viz., sections 90, 112, and 181, 182, but the views herein expressed, and the conclusions arrived at, render it unnecessary for us to announce our views upon any but the one section mainly relied upon, section 112.

The ‘‘uniformity and equality clause, ’ ’ commonly so called, forms sec. 20, art. 12, constitution 1869, and is in these words: ‘ ‘ Taxation shall be equal and uniform throughout the state. Property shall be taxed in proportion to its value, to be ascertained as directed by law. ’ ’ Prior to the adoption of our present constitution (1890), this section had been the subject of repeated judicial investigation. In Daily v. Swope, 47 Miss., 367, it was held that the “equal and uniform taxation” required by the constitution did not refer to local assessments for purposes of local improvements, and, consequently, the power of the legislature to classify and arbitrarily value lands for purposes of local taxation within a levee district was upheld. See, also, Vasser v. George, 47 Miss., 713.

In Mississippi Mills v. Cook, 56 Miss., 40, the supreme court went a step further, and announced that, under the law as it was then written (constitution 1869), it was not necessary that all property should be taxed, but that the legislature bad the power and the right to select such objects of taxation as it might deem proper, and that property not so selected was not subject to taxation. It was also held that sec. 20, art. 12, constitution 1869, did not prevent the legislature from levying a privilege tax in lieu of all ad valorem taxes. Vicksburg Bank v. Worrell, 67 Miss., 47.

It is useless to burden this opinion with further citation of authorities, with which bench and bar are entirely familiar. Suffice it to say, that the conclusions reached in cases before referred to were uniformly followed, but the rules therein announced were never broadened or extended. This was the judicial interpretation placed upon the “ equality and uniformity clause” of the constitution of 1869, and it was with the light of these decisions before it that the constitutional convention amended said clause, and adopted the corresponding section now in our constitution relating to the subject under consideration. Section 112, constitution 1890, omitting the words not material to this discussion, provides: ‘‘ Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. Property shall be assessed for taxes, under general laws and by uniform rules, according to its true value." And the question now to be passed upon, is whether or not the statute assailed is violative of the provisions of that section.

At the very threshold of this investigation, we are met by the earnest contention of counsel for appellee, that section 112 does not refer to municipal taxation, but only to such taxation as may be imposed for the purpose of providing revenue for the administration of state and county affairs. Learned counsel support their argument by numerous citations from other states. We have given the subject the careful research which its gravity and importance demands, and are constrained to adhere to the decisions of our supreme court. In Daily v. Swope it was held that the general system of taxation within the scope of sec. 20, art. 12, cons. 1869 (as distinguished from taxation for the purpose of local improvements), referred to the “impositions and assessments for the general, usual, and ordinary purposes of the state and the county and municipal bodies." And this doctrine was expressly reaffirmed and approved in Vasser v. George, where it was said: “The limitation upon the power in that section (sec. 20, art. 12) only applies and governs taxes levied for the usual, ordinary, and general purposes of the state, county, and incorporated city or town.” We are forced to reject the contention of appellee, and are content to abide by these decisions. Clearly section 112 does apply to and govern municipal taxation. See, also, Southern R. R. Co. v. Jackson, 38 Miss., 334.

Counsel for appellee next contend, that this question has already been passed upon by the supreme court of this state. Not so. A critical analysis of every case cited will show that the exact point here decided was never involved. The case of Winona v. Bank, 69 Miss., 663, strongly relied on, has no application. The constitutionality of the law therein considered was never discussed by counsel or decided by the court, and therefore the decision is without weight as a precedent. The decision of the case not resting solely on the question of constitutionality of the statute, that point was very properly not passed upon. Cooley’s Con. Lim., 163.

Mississippi Mills v. Cook merely announced that the legislature had the power and right to select the subjects of taxation, and property not so selected should not be taxed. But the opinion of at least two, if not all, of the judges in that case, if carefully examined, will show that they held, that where property was subjected to taxation, the tax should be equal and uniform upon all property so taxed. In truth, we are strengthened and confirmed in the views here announced by the opinion in that case. Says Chalmers, J.: “ We all concur in holding that the twentieth section does not require the taxation of all the property in the state, but only that all that is taxed shall be taxed uniformly, equally and according to value. These are three rules, and the only rules laid down in reference to taxing the property of individuals. What do they mean ? The requirement of uniformity means that all property belonging to the same class shall be taxed alike — so that all horses shall be taxed at the same rate, and all lands or stocks or merchandise. There is to be no discrimination between property of the same class, and it shall not be competent to levy one rate upon country lands and another upon city lands, or one rate upon horses of one breed and another upon horses of a different breed. If the uniformity requirement stood alone, it would be competent to affix different rates to different kinds of property, and so to impose one rate upon all lands, and another upon all horses, and still another upon all stocks, and still another upon all merchandise. But this kind of discrimination is prohibited by the requirement of equality, by which it is made obligatory that the same rate shall be imposed on every kind and species of property that is subject to taxation.”

It is true that this language is taken from a dissenting opinion, but it seems to announce the unanimous conclusion of the three judges upon the point here involved, and; besides, these words came from the pen of one of the most distinguished jurists that ever adorned the bench of this state. But, precedent and authority aside, this statute will not stand the test when measured by the rules announced by section 112. The whole scheme of taxation, as devised by that section, is plain, simple and easily understood. In order to carry out that design three things are necessary: (1) “Property must be assessed for taxes under general laws,” because, without a legal assessment, no tax can lawfully be imposed or collected; (2) property must be assessed at its ‘ ‘ true value. ’ ’ This must be done in order to prevent unjust discrimination by selecting different modes of valuation, as had occurred under the constitution of 1869. The constitution of 1890 manifestly intended that stocks, bonds and all other property should be assessed at what it was really worth, and not valued by any arbitrary rule, no discretion, as to valuation, being left to the legislature, as the courts had held was done by sec. 20, art. 12, of the constitution of 1869. When this is done, when these preliminary, but necessary, steps of assessment and valuation are taken, in order to complete and carry the plan into effect, the third rule is announced: (3) Property shall be taxed in proportion to its value, and taxation shall be equal and uniform. These are the three rules upon which the entire plan of taxation is reared; you cannot destroy one without marring the symmetry of the whole.

Does the statute under consideration conform to the rules here announced? We think not. “ Property shall be taxed in proportion to its value,” means property shall pay taxes in proportion to its value. It can mean nothing else. The constitution says property shall be assessed for taxes at its true value. The purpose of assessment, is in order that taxes may be lawfully levied; the purpose of valuation, is in order that a just proportion of taxes may be collected. To hold that, after property is assessed for ad valorem taxes, under general laws, after a j ust valuation has been placed upon it, the legislature can intervene and grant a special privilege to some favored, class by arbitrarily reducing the rate of levy imposed, would be to make of the law a mockery and a sham. We cannot sanction any such legal legerdemain. Yet, this is the real effect of the statute under consideration. After deciding that banks and solvent credits shall be subjected to ad valorem taxation, as is all other property, after it is assessed for taxes under general laws and by uniform rules, at its true value, the legislature, by this statute, undertakes to relieve this species of property from its just proportion of taxes, thus violating that clear mandate of the constitution which declares that taxation shall be equal. "Equality of taxation means apportioning the contributions of each person towards the expenses of the government, so that he shall feel neither more nor less inconvenience, from his share of the payment, than every other person experiences.” Mills’ Pol. Econ., book 5, chap. 2, par. 2.

Calhoon & Green and Brame & Alexander, for the motion, Mayes & Harris, contra.

In the case at bar, the Mississippi State Bank did not pay taxes* upon its property in proportion to its value. We hold, therefore, that the provision of section 3, chapter 29, acts of 1894, relied on by appellee, is violative of section 112, constitution 1890, and is null and void.

We do not here decide whether, under the constitution of 1890, the legislature has the power to exempt from taxation any species of property, individual or corporate, not specially mentioned in that instrument. As it is not absolutely essential to the determination of this case, we refrain from expressing any views.

This decision only goes to this extent, that when ad valorem taxes are levied there can be no discrimination in rates between one species of property and another; each dollar of property must pay its just proportion of tax; the burden of government must be adjusted equally. When the state undertakes to collect toll from her citizens, the hand of the tax gatherer must fall with equal weight upon all. So reads the plain letter of our organic law; so let it stand. We will graft no vicious exception upon it. It follows that the j udgment of the court below must be reversed, the demurrer overruled, and the cause remanded. So ordered.

Woods, C. J., dissented.

After the delivery of the foregoing opinion on the merits, and the entry of judgment in accordance therewith, a motion was made by the appellee to vacate and set aside the judgment for the reasons stated in the opinion thereon.

Woods, C. J.,

delivered the opinion of the court.

The motion is in these words, viz.: £ £ Comes the appellee and shows to the court that the order reversing the judgment herein, and remanding this case for a new trial, entered on May 17, 1897, was based upon the judgment and decision of two special judges, and over the objection and contrary to the judgment and decision of the chief justice, and that one of the special judges participating in said order, and whose vote controlled in entering the same, was, at the time, fanctus officio, the Hon. S. H. Terral, a regular judge of this court, having qualified on May 10, 1897, as the successor of the Hon. T. R. Stockdale, disqualified. For these reasons the said order of reversal was and is void, and the case is still pending in this court, and undetermined; wherefore, appellee moves the court to set aside said order, that the cause may be proceeded with regularly by the court lawfully constituted, and, if necessary, that the cause be remanded to the docket. ’ ’

At the March term, 1897. of this court, the Hon. A. H. Whitfield, then and now one of the judges of this court, and the Hon. T. It. Stockdale, then a judge of this court, were disqualified to sit on the-hearing of the case named and to take part in its consideration and determination. The disqualification of these two judges was accordingly certified, as required by law, to the governor of the state, by the remaining judge who was qualified, and, thereupon, by a commission, signed by the governor and attested by the signature of the secretary of state and the affixing of the great seal of the state, the Hon. Jeff Truly and the Hon. W. G. Orr were appointed special judges to £ £ preside in said cause of Wirt Adams, Revenue Agent, v. Mississippi State Bank, as the same appears upon the docket of said court for consideration at the present term thereof, and the said Jeff Truly and W. G. Orr are hereby authorized to do and perform all things pertaining to said cause as fully, in every respect, as the said A. H. Whitfield and T. B,. Stockdale, judges, could do if they were not disqualified and were present and presiding. ’ ’

This commission of these special judges was issued on March 2, 1897, and was filed in the office of the clerk of this court on the day following. On the same day, March 3, 1897, the two special judges appeared in court, and, upon the retirement of the two regular judges who were disqualified, took their places upon the bench as members of this court under said commission. The cause was then called for trial by the presiding regular judge, and, before the court thus constituted by the regular judge, who was not disqualified, and the two special judges, the same was fully argued orally by counsel for the respective parties, and, after such oral argument, was then submitted upon written briefs of said counsel for consideration and determination.

On the ninth day of May, 1897, the term of office of the Hon. T. R. Stockdale expired by operation of law, and on the next day, the tenth of May, the Hon. S. H. Terral qualified as the successor of Judge Stockdale, and at once assumed and entered upon the discharge of his duties as a member of this court. On May 17, 1897, seven day after Judge Stockdale had retired and Judge Terra! had been inducted into office, the court which had heard the argument of the cause, and which had considered and determined the same, decided the questions involved on appeal, and rendered judgment reversing the judgment of the court below, the two special judges concurring in opinion, and the regular judge dissenting. It is this judgment of reversal which the motion seeks to have set aside as void, for the reason, as alleged, that the special judge who was appointed in place of Judge Stockdale, disqualified, had no power or authority to take any part in the determination of the cause after the expiration of Judge Stockdale’s term. The question thus presented involves the proper construction of section 165 of our constitution, and it has had protracted and anxious consideration. But in considering the motion, we have been constrained to examine and determine some questions that lie in front of the one to which we have just adverted.

It is necessary, first, to determine the precise character of the two special judges at the time of the rendition of the judgment which it is now sought to set aside. That they were mere intruders upon the bench is not asserted by anyone, nor could such assertion be maintained for an instant, in the face of the facts we have stated. The most heated imagination could not entertain such a thought. That they were judges dejwre when they sat upon the hearing of the cause, and when they took part in the consideration of the case in the consultation room, up to the date of the expiration of Judge Stockdale’s term, is not open to dispute. Were they judges de jure on May 17, 1897, when the case was decided ? That need not be entered upon by us, for that is the point involved in the proper interpretation of section 165 of the constitution. Whether these special judges were judges de jure or not is immaterial under the view we take of the answer to be given to this inquiry, viz., were they, on May 17, judges defacto? If they were, what weight and value in law is the decision of May 17 entitled to receive ? Is the decision of a defacto judge void or valid? And if not void, under what circumstances and by whom may it be attacked ?

The text books and reported cases abound in definitions and explanations of the words “officer de factof and, while employing a wide variety of terms, there is substantial harmony in the material and vital matters entering into the definitions. Throop, in his late and very useful work on Public Offices, collates and contrasts many of these definitions. We adopt this definition, borrowed almost verbatim from that author, because of its singular conciseness and clearness: “An officer defacto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto. ’ ’ Many authorities of great value maintain that there must be color of title as well as color of authority, and this, we strongly incline , to think, is the sound view. We adopt it in the present case, and we find in its application here now this state of facts: The special judges on May 17 were exercising the powers and discharging the duties of judges of this court; they were then in possession of their offices, unchallenged by anyone, and with the assent of the bench, the regular judges, and'of the bar; so far as engaged in this cause, they acted under color of authority, and, clearly, under color of title. By every text book and reported case examined by us, the special judges were, at least and certainly de facto judges. See § 3065, code, and cases there cited.

It would be an affected display of research to parade the multitudinous authorities in support of,our holding. We refer generally to the long line of cases cited by Throop, and those cited by Works in his treatise on “Courts and their Jurisdiction.”

Being, then, judges de facto, was the judgment of the court of which they were members void ? There can be but one answer to the question, and that is, the judgment was not void. In all the adjudications we have been able to find, there is not a dissenting voice as to the absolute correctness of this answer. As to the public generally, and as to third persons, the judgment of a special de facto judge stands exactly in the attitude of a judgment rendered by a judge de jure, and this proposition rests upon considerations affecting the orderly administration of justice and the welfare of society at large. We have examined a few cases in which the appointment and qualification of the officer were so wholly irregular and without warrant in law, as to lead the courts to declare the action of such officer voidable, but, in these cases even, the objection to the officer was required to be promptly interposed, and, where the litigants submitted themselves and their rights to the determination and judgment of such officer, they were denied the right subsequently to attack the authority of the officer after an adverse decision, and this appears to us to be reasonable and just. The cases on this point, and the preceding one, will be found collected in the text and notes of the two works of Throop and Works, to which we refer.

Entertaining these views, the motion must Toe denied, xoithout reference to section 165 of the constitution.