Knox v. L. N. Dantzler Lumber Co.

114 So. 879, 114 So. 873, 148 Miss. 834, 1927 Miss. LEXIS 94

• Court: Mississippi Supreme Court
• Decided: November 28, 1927
• Docket: No. 26640.
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The attorney-general appealed from the personal assessment of the appellee for the year 1925, under the provisions of chapter 120, Laws of 1918, permitting the attorney-general to appeal from such assessment.

The attorney-general filed a petition to the court for the issuance of a writ of subpoena duces tecum tó produce the books of the company, and for an inspection under the direction of the court, and permission to take copies of such entries as might be pertinent to the ap peal. Iii this petition it is alleged that, in valuing the property of said defendant for assessment for purposes of taxation, it was the duty of the defendant to list and show all of the capital stock, surplus, and undivided profits as required by law; that the purpose .of this appeal is to revise the said assessment by increasing the value thereof so as to bring about a proper, fair, and legal assessment of said property according to the Constitution and statutes of the state of Mississippi; that under the provisions of section 6939', Heming'way’s Code 1917 (section 4305, Code of 1906), it was the duty of the board of supervisors of Jackson county, Miss., in passing upon and approving the assessment of the defendant’s property, to add to and increase the said valuation to the actual value of its assets, including the capital stock, surplus, and undivided profits, and to that end it was the right and duty of the said board of supervisors, under the provisions of chapter 323 of the Laws of 1920, to require the defendant to bring before the board of supervisors such books and other papers of the defendant as would fully inform said board of supervisors of the actual value of the property belonging to the said defendant, and of each separate part thereof, but that the. said board of supervisors did not perform its duty, but approved said assessment'without requiring the said defendant to permit the said board of supervisors to examine said books and papers containing the necessary information; that by the provisions of chapter 120 of the Laws of 1918, under which this appeal is taken and is being prosecuted, this cause is to be tried de novo in this court, and that upon the trial in this court the plaintiff, acting for and on behalf of the state- of Mississippi, and of Jackson county, and of the various taxing districts .thereof, is entitled to have the defendant produce into court on the trial of the cause for the inspection of the court and the jury, such books, papers, records, mem-oranda, estimates, and other papers of the defendant as will fully inform the court and the jury as to all of the property owned by said defendant and the true value thereof, including the capital stock, surplus, and undivided profits; and that, under the provisions of section 1003 of the Code of 1906 (section 723 of Hemingway’s Code), the plaintiff is entitled to an order of this court requiring the defendant to produce into court the said hooks, papers, estimates, records, data, and memoranda for inspection by plaintiff and for submission to the court and jury and to permit plaintiff to have copies made. The plaintiff is informed and charges the fact to be that the defendant has in its possession or under its control inventories and other data showing the actual value of the property belonging to the defendant and full value and amount thereof, and the amount of the capital stock, surplus, and undivided profits and the amount of property on hand on February 1, 1925, and that, by reference to the aforesaid books and papers, it can be ascertained by the court and the jury the actual value of the property belonging to the said defendant company and the amount for which it should have been assessed for taxes for the year 1925.

The plaintiff further avers that the aforesaid books, inventories, memoranda, data, and records now in the possession or under the control of the defendant contain important evidence relating to the merits of this action and to the defense therein interposed by the defendant, and that it is necessary in order to promote the ends of .justice in this case, for said books and papers to be produced into court on the trial of this cause for. inspection by the court and jury, and for the inspection of same by plaintiff and the taking of copies thereof. This application was sworn to by the attorney representing the attorney-general.

The court’deferred action for the time being upon this application, and the following day another application was filed for an inspection of the books and papers and copies of such portion thereof as contained evidence of value and amount of property owned by the defendant oil February 1, 1925', and assessable for taxation in said county and state. This application alleges that he (the attorney-general) has good cause and does believe that the defendant has in its possession or under its control books, papers, and documents which will show the amount, kind, and value of the property owned by it on February 1, 1925, and assessable for taxation in said county and state, that he has good reason to believe and does believe that the defendant has wholly failed to return its property for assessment purposes in the manner and form required by law, and that, said assessment not having been returned as required by law, such property has not been legally and properly assessed for the purpose of taxation, and that it is now the duty of the court to require the production of all books, papers, and documents which the defendant has- in its possession or under its control which will inform the court of the amount, kind, and value of its property assessable for taxation for the year 1925, and to enter such assessment as should have been ordinarily entered, and moved the court that another order issue to require the defendant to produce in court books, documents, and papers, which it has in its possession or under its control, and permit the plaintiff, in the presence of and under the control of the court, to inspect and take copies of such portions thereof as contain evidence of the value, kind, and amount of property owned by defendant on February 1, 1925, which was assessable for taxation for said year, in said county and state. This application was likewise sworn to. This motion was by the court overruled.

Thereafter, on the 18th day of February, the attorney-general filed another application in which it was stated that the defendant lumber company is a domestic corporation of the state of Mississippi, and that L. N. (Dantzler is president of said company, A. F. Dantzler is vice president, Gr. B. Dantzler is treasurer, and A. M. Cowan is secretary, and that said officers of said corporation have in their possession or under their control books, papers, and documents belonging to said defendant which will show all of the taxable assets or personal property owned by said defendant and taxable in Jackson county, Miss., and that said property consists of cash, notes, accounts, advances, personal property of various kinds shown on the inventories, and various items of personal property, and that it is necessary in order to promote justice that said books, papers, etc., be produced on the trial of this cause for presentation to the court and jury in order to show and determine the amount of property owned by said defendant and taxable in Jackson county, Miss., for the year 1925. This application was also sworn to, and was likewise overruled.

The attorney-general on the hearing of the motion and during the hearing of the cause examined certain of the officers and agents of the defendant company with reference to the existence of such books and inventories, and it appears from the evidence that the company has such inventories, books, and other things as would disclose what property it had subject to taxation for the year 1925, by which the value thereof could be determined. But the trial judge was of the opinion that the attorney-general could not add to the assessment roll, on the appeal proceeding, any property that was not placed on the roll by the assessor or by the board of supervisors; and the appeal proceeding was limited to the value of the articles -named on the assessment roll.

The assessment rendered by the defendant company did not contain the amount of shares of capital stock and show by whom owned, nor the value of the capital stock, surplus, and undivided profits.

It further appears from the record that the board of supervisors increased certain items of the assessment as made by the tax assessor, but the board did not add to the assessment roll as made by the assessor the capital stock and undivided profits and surplus, nor find the value thereof.

The principal controversy revolves around the question whether it was permissible, on the appeal by the attorney-general, to add to the items placed upon the roll other property which was assessable and which had not been placed thereon by the county assessor and the board of supervisors.

At the instance of the defendant, the court granted the following’ instruction:

“The court 'charges the jury at the instance of the defendant that there camiot be in this proceeding added to the roll any personal property of the defendant not now appearing thereon, and the sole question in the case is whether the personal property appearing thereon is properly valued or not. ’ ’

The section providing for appeals from assessments governing this case is section 61, Hemingway’s Code 1927 (Laws 1918, chapter 120), which reads as follows:

“Appeal from Assessment of Tames — Attorney-Gener al, District Attorney, County Attorney May Appeal, — 1 Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may within five days after the adjournment of the meeting at which such decision' is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than one hundred dollars, payable to the state, and conditioned to perform the judgment of" the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with bond, in the office of the clerk of the circuit court, on or before its next term; and the controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten per centum on the amount in controversy and all costs. If tlie matter be decided in favor of tbe person who appealed, judgment in bis favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs. The county attorney, the district, or the attorney-general, if the state, county, or municipality be aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town, or village as to the assessment of taxes, may, within twenty days after the adjournment of the meeting at which such decision is made, or within twenty days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the state tax commission, or within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the -state tax commission is entered, appeal to the circuit court of the county in like manner as in the case of any person aggrieved as herein-before provided, except no bond shall be required, and such appeal may be otherwise governed by the provisions of this section.”

It will be noted from a reading of this section that the controversy in the circuit court is tried anew. In other words, it is a trial de novo,, and the court is acting in the same capacity in such appeal as the board of supervisors act in passing upon and approving or correcting the assessment made by the county assessor.

This section also gives the county attorney, the district attorney, and the attorney-general, or either of them, the right to appeal if the said county or municipality be aggrieved by the board of supervisor’s action in making such assessment.

By section 8227, Hemingway’s Code 1927 (section 4305., Code of 1906), it is provided that:

“At the meeting for the hearing of objections to assessments, the board of supervisors shall not only hear and determine all objections that shall be filed, but it shall as well carefully examine the roll or rolls, and shall then and there cause to be assessed any person or thing that may be found to be omitted, and anything* found to be undervalued may be correctly valued. And in the year in which land assessment is made the board shall carefully examine the land roll and see that it embraces all of the land in the county, and correctly represents it as being* the property of individuals or the state or United States, according to the fact, and taxable or not taxable according to law, and that all is correctly described so as to be identified with certainty, and that there are no double assessments; and all land improperly omitted from the roll shall be added thereto by the board or under its direction, and land incorrectly or insufficiently described shall be properly described, and land which is graded too low or undervalued shall be properly graded and valued. And the board shall cause all corrections to be made in the rolls, which, being done, the board shall enter an order approving the assessments, with or without corrections, as the 'case may be, subject to the right of parties in interest to appeal as provided by law. ’ ’

By section 759', Hemingway’s Code 1927 (section 1003, Code of 1906), it is provided:

“Copy of Books, Papers, or Documents Furnished.— The court in which any action or suit is pending may, on good cause shown, and after notice of the application to the opposite party, order either party to give to the other, within a specified time, and on such terms as may be imposed, an inspection and copy, or permission to take a copy, of any books, papers, or documents in his possession or under his control containing evidence relating to the merits of the action or proceeding or of the defense thereto; and if compliance with such order be refused, such books, papers or documents shall not be given in evidence in the action or proceeding by the party so refusing; and the court may punish the recusant party as for a contempt of court; and if a complainant, or plaintiff, fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit or dismissal; and if a defendant fails to comply with such order,, the court may, on motion, give judgment or decree against him by default or confession. ’ ’

By section 4267, Code of 1906 (section 69Ó1, Hemingway’s Code 1917), it is provided that — “All joint stock companies or corporations organized under the laws of, and doing business, in this state, shall he assessed for taxation and he taxed as follows: The president or other officer of any joint stock company or corporation, other than banks and railroad companies, shall, on demand, on or before the first day of June in every year, deliver to the assessor of the county in which the company or corporation is domiciled or located, a written statement, under oath, of the capital stock paid in, and its market value, and to whom each share belongs; also a statement and the market value of all real estate owned by such company or corporation; all to he as of the first day of February of the year in which such statements shall be rendered. The capital stock of such company or corporation shall he assessed to it for taxation to the extent of the full mount of the value thereof, as shown by such statement, less the aggregate value of such real estate, which shall he deducted from the value of such capital stock, such real estate to he subject to separate assessment and taxation as other real estate is assessed and taxed.”

Section 15, chapter 323, Laws of 1920, provides that— “The hoard of supervisors may require any person, firm, corporation, or hank to bring their 'books before them while sitting as an equalization board or when hearing-objections or complaints, and such other papers as will fully inform them as to the true value of- the property to be assessed. And any person or concern failing or refusing to comply with such demand shall be precluded from objecting to any such assessment.”

Section 156 of the state Constitution provides that— “The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall 'be prescribed by law.”' (Emphasis supplied.)

It seems to have been the idea of the learned judge in the trial of the case that the circuit court could not be made a court for the addition of anything’ to the assessment roll that was not placed thereon by the assessor or by the board of supervisors; that the court could not be converted into an agency for the assessment of taxes.

It will be seen from this section of the Constitution, and that part emphasized, that the circuit court shaJl have such appellate jurisdiction as shall be prescribed by law, and it will be seen by a reading of the section on appeals, above quoted, that the cause shall be tried anew in the circuit court. It must be remembered that the valuation of property for assessment is a judicial act, and, while the Constitution creates the assessor, and he is required to list and value the property in the county for taxation, his act in so doing is not final, but is subject to review by proper tribunals created by law. This section of the Constitution must be considered in connection with other sections of the Constitution, and in connection with the known practice at the time of the adoption of the Constitution.

It is not questioned in the appeal here that the board of supervisors itself may lawfully add property to the assessment roll under the section above referred to, but it is insisted that the circuit court cannot do so, that it is limited to a review of what the board did as evidenced by the roll itself.

We think it is competent for the legislature to confer -on the circuit court the power to try the case anew, as the legislature has done, and that, the case being tried de novo, the circuit court proceeds as though there had been no action by the board. Or, in other words, that it is not bound by what the board did, but may itself do on appeal what the hoard should have done when the cause was before the board.

In Whittle v. Hattiesburg, 132 Miss. 808, 96 So. 741, it was held that under section 61, Hemingway’s Code (section 81, Code of 1906), on appeal to the circuit court, the burden of proof is on the municipality, and not on the appellant, that the return of the assessor is prima facie correct, and not the judgment of the’equalization board; in other words, that the appeal suspends the judgment of the board of supervisors, and the cause is to he tried in the circuit court just as though the court was itself the hoard of supervisors. That being true, and the board of supervisors having jurisdiction to add property to the roll, or assess persons thereon who have not been placed on the roll by the assessor, on appeal the circuit court may add such property to the assessment, or direct it to be done by the assessor as the board does. We think, therefore, the court below and the appellee in this appeal are wrong in their contention that the circuit court has no power to add to the roll such property and persons as should have been placed thereon but have not been so placed by the proper officers.

The trial court also seemed to be of the opinion that the requirement of the production of the books and inventories called for was unreasonable, and constituted an unlawful search and seizure, and that the statute did not authorize the court to bring in the books of the company for the purposes for which they were sought to be brought in.

It will be noted from the application and from the testimony in the record that the only books and inventories sought to be brought into court by the application were such as would show the property of the defendant company and the value and number of shares of capital stock. This with the property shown by the books to be possessed, and the inventories, and the value thereof, were not unreasonable.

The state, in order to make its power of taxation effective, must of necessity have power to compel the discovery of the taxpayer of his property, and to effect the production of the necessary evidence to show what property the citizen has. The reasonableness of the application to produce the books must be considered in connection with the subject-matter1 of the litigation, and the books that have a proper bearing upon the litigation and would throw light upon the issue are subject to production and to introduction in evidence on the trial of the issue.

Necessarily in tax appeals on equalization, not only is the property of the individual from which the appeal is prosecuted subject to consideration, but all of the taxable property of the taxpayer must be considered, valued, and equalized. This necessarily requires a rather full disclosure of the value of the property held by the taxpayer.

In the case of Hale v. Henkel, 201 U. S. 43, 70, 26 S. Ct. 370, 50 L. Ed. 652, the supreme court of the United States had occasion to deal with the question of the production of books and papers. At page 377 of the Supreme Court Reporter in that case:

“The second branch of the case relates to the non-production by the witness of the books and papers called for by the subpoena dwces tecum. The witness put his refusal on the ground, first, that it was impossible for him to collect them within the time allowed; second, because he was advised by counsel that, under the circumstances/he was under no obligation to produce them; and, finally, because they might tend to incriminate him.

“Had the witness relied solely upon the first ground, doubtless the court would have given him the necessary time. The last ground we have already held untenable. While the second ground does not set forth with technical accuracy the real reason for declining to produce them, the witness could not be expected to speak with legal exactness, and we think is entitled to assert that the sub poena was an infringement upon the Fourth. Amendment to the Constitution, which declares that ‘the right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not he violated, and no warrants shall issue hut upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to he seized. ’ ’ ’

‘ ‘ The construction of this amendment was exhaustively considered in the case of Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, which was an information in rem against certain cases of plate glass, alleged to have been imported in fraud of the revenue acts. On the trial, it became important to show the quantity and value of the glass contained in a number of cases previously imported; and the district judge, under section 5 of the Act of June 22, 1874 (18 Stat. at L. 187, chapter 391; U. S. Comp. Stat. 1901, p. 2018), directed a notice to he given to the claimants, requiring them to produce the invoice of these cases under penalty that the allegations respecting their contents should be taken as confessed. We held (page 622 [6 S. Ct. 528, 29 L. Ed. 748]) ‘that a compulsory production of a man’s private papers to establish a criminal charge against him, or to.forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would he, ’ and that the order in question was an unreasonable search and seizure within that amendment.-

“The history of this provision of the Constitution and its connection with the former practice of general warrants, or writs of assistance, was given at great length, and the conclusion reached that the compulsory extortion of a man’s own testimony, or of his private papers, to connect him with a crime of a forfeiture of his goods, is illegal (page 634 [6 S. Ct. 534, 29 L. Ed. 752]), ‘is compelling a man to he a witness against himself, within the meaning of the Fifth Amendment to the Constitu-' tion, and is the equivalent of a search and seizure — and an unreasonable search and seizure — -within the meaning of the Fourth Amendment. ’

“Subsequent cases treat the Fourth and Fifth Amendments as quite distinct, having different histories, and performing separate functions. Thus in the case of Interstate Commerce Commission v. Brimson, 154 U. S. 447, 14 S. Ct. 1125 [15 S. Ct. 19], 38 L. Ed. 1047 [39 L. Ed. 49], 4 Interst. Com. Com’rs R. 545, the constitutionality of the Interstate Commerce Act, so*far as it authorized the circuit courts to use their processes in aid of inquiries before the commission, was sustained, the court observing in that connection:

“ ‘It was clearly competent for Congress, to that end, to invest the commission .with authority to require the attendance and testimony of witnesses, and the production of books, papers, tariffs, contracts, agreements, and documents relating to any matter legally committed to that body for investigation. 'We do not understand that any of these propositions are disputed in this case.’

“The case of Adams v. New York, 192 U. S. 585, 24 S. Ct. 372, 48 L. Ed. 575, which was a writ of error to the supreme court of the state of New York, involving the seizure of certain gambling paraphernalia, was treated as involving* the construction of the Fourth and Fifth Amendments to the Federal Constitution. It was-held, in substance, that the fact that papers pertinent do the issue may have been illegally taken from the possession of the party against whom they are offered was not a valid objection to their admissibility; that the admission as evidence in a criminal trial of .papers found in the execution of a valid search, warrant prior to the indictment was not an infringement of the Fifth Amendment, and that, by the introduction of such evidence, defendant was not compelled to incriminate himself. The substance of the opinion is contained in the following paragraph. It was contended that: ‘If a search warrant is issued for stolen property, and burglars’ tools be discovered and seized, they are to be excluded from testi mony by force of these amendments. We think they were never intended to have that affect, but are rather designed to protect against compulsory testimony-from a defendant against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen or the unwarranted seizure of his papers and property, and to render invalid legislation or prejudicial procedure having such effect.’

“The Boyd case must also be read in connection with the still later case of Interstate Commerce Commission v. Baird, 194 U. S. 25, 24 S. Ct. 563, 48 L. Ed. 860, which arose upon the petition of the commission for orders requiring the testimony of witnesses and the production of certain books, papers, and documents. The case grew out of a complaint against certain railway companies that they,charged unreasonable and unjust rates for the transportation of anthracite coal. Objection was made to the production of certain contracts between these companies upon the ground that it would compel the witnesses to furnish evidence against themselves, in violation of the Fifth Amendment, and would also subject the parties to unreasonable searches and seizures. It was held that the circuit court erred in holding the contracts to be irrelevant, and in refusing to order their production as evidence by the witnesses who were parties to the appeal. In delivering the opinion of the court, the Boyd case was again considered in connection with the Fourth and Fifth Amendments, and the remark made by Mr. Justice Day that the immunity statute of 1893 ‘protects the witness from such use of the testimony given as will result in his punishment for crime or the forfeiture of his estate.’

“Having already held that, by reason of the Immunity Act of 1903, the witness could not avail himself of the Fifth Amendment it follows that he cannot set up that amendment as against the production of the books and papers, since, in respect to these, he would also be protected by the Immunity Act. We think it quite clear that the search and seizure clause of the Fourth Amendment was not intended to interfere with the power of courts to compel through' a subpoena duces tecum, the production, upon a trial.in court, of documentary evidence. As remarked in Summers v. Moseley, 2 Cromp. & M. 477, it would be ‘utterly impossible to carry on the administration of justice’ without this writ. The following authorities are conclusive upon this question: Amey v. Long, 9 East, 473; Bull v. Loveland, 10 Pick. [Mass.] 9; United States Exp. Co. v. Henderson, 69 Iowa, 40, 28 N. W. 426; Greenl. Ev. 469a.”

The decisions held also that a corporation is different in this respect from an individual, because under the law the state has the power of supervision of the corporation, and, for all proper purposes, of examining into its acts to see whether or not it is abusing its charter powers, etc. It would certainly be far reaching to hold that the state could not compel the production of books and papers for the purpose of taxing the property of either individuals or corporations, and the application for process of this kind must be kept within reasonable limits, and must not be abused, as was held in Hiawatha, etc., Co. v. Mississippi Farm Bureau, 138 Miss. 605, 103 So. 345.

In the case before us, however, the application for the production of papers is not for the production of every paper of every kind through a long series of years, but is for such papers and inventories as would show the taxable property of the corporation for a particular year, and the value of such property. The evidence taken shows that such papers are in existence and that they can be brought into court without undue inconvenience for the trial of the issue. The court has power to prevent abuse, and the petition prays for the inspection to be made in the presence and under the control of the court.

We are of the opinion that the court erred in refusing to issue the process and compel the production <of such books and papers, and that it erred in instructing the jury that they conld not consider anything except the property which had been listed upon the assessment roll by the assessor and the board of supervisors. For the errors indicated, the judgment of the court below will be reversed, and the cause remanded for a iiew trial in accordance with the views expressed in this opinion.

Reversed and remanded.