Robertson v. United States Nursery Co.

83 So. 307, 121 Miss. 14

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20775
• Status: Published

Opinion

Stevens, J.,

delivered the opinion of the court.

This is a proceeding by the state revenue agent to back-assess the United States Nursery Company, a corporation,- upon its capital stock for the years 1910 to 1915, inclusive. At the instance of the state revenue agent the tax collector of Coahoma county gave notice to appellee of an additional and back tax assessment on a valuation of twenty-five thousand dollars capital stock, surplus, and undivided profits for each of the years mentioned, The notice was duly served and upon objections by appellee and consideration thereof by the board of supervisors the assessment was disallowed. From the order of the board disallowing the assessment the revenue agent appealed to the circuit court. The issue was presented to the court and jury, a peremptory instruction was granted appellee, and from the judgment of the circuit court the state revenue agent prosecutes this appeal.

One defense presented by appellee is submitted in the following paragraph of its sworn answer:

“Tour respondent’s authorized capital stock is now and has always been under its charter of incorporation seventy-five thousand dollars, but that of said capital last aforesaid only sixty-four thousand eight' hundred dollars has been issued, sold, and paid for; that all of its said paid-in capital . stock, last aforesaid, is now and has been, during all the years last aforesaid, invested in real estate and personal property, situated in Coahoma county, state of Mississippi, and that the said capital stock so issued and paid in, as above stated, has now a cash market value of something less than par, to wit, approximately ninety cents on the dollar, and has not exceeded that amount in value during any of the years from 1910 to 1916, inclusive; that your respondent has during all the years last aforesaid paid all taxes levied and assessed against its said real and personal property, and that its real and personal property has been during all the years last aforesaid and is now assessed for taxation, and taxes paid there on, as other like property is assessed and taxed in Coahoma county, Miss.”

Appellee further pleaded that J. C. Johnston, former state revenue agent, had heretofore attempted to back-assess appellee upon its capital stock for the same years involved in this proceeding, and that at a regular meeting of the board of supervisors of Coahoma county held at Clarksdale in April, 1916, an order was passed by the board disapproving the back assessment, and that no appeal had been prosecuted from this prior order and that the same is now res adjudicate

The appellee is a corporation domiciled in the first district of Coahoma county engaged in the business of operating a plantation and nursery.

In the circuit court the revenue agent introduced .Mr. Crowell, the manager of appellee company, who testified as to the capital stock paid in, the property owned by the company, and something of the business which the company was doing. This was the only witness introduced. Appellee introduced the order of the board of supervisors of Coahoma county entered at Clarksdale in April, 1916 in the second judical district of said county, disapproving the assessment made at the instance of J. C. Johnston, former state revenue agent. This constituted all of the evidence submitted to the jury. Both sides asked for a peremptory instruction and the trial judge charged the jury to find for the defendant. The correctness of this ruling is challenged by the present appeal. Appellee relies for affirmance on three grounds: First, that all of the capital stock of the United States Nursery Company was invested in real and personal property; that this tangible real and personal property had been duly assessed for.taxe.s on the assessment rolls of Coahoma county and taxes duly paid thereon, leaving no part of the capital stock untaxed; second, that inasmuch as all the capital stock had been invested in real and personal property which had been duly assessed and taxes paid thereon, the value of this assessment of real and personal property must be taken and considered as the full value of the capital stock, there being no proof in the record as to actual market value; third, that the matter at issue has been heretofore adjudged by the board of supervisors at the instance of the former revenue agent.

The testimony of Mr. Crowell tends to prove that the corporation of which he is the active general manager was organized in December, 1904; that it is a landholding and farming corporation domiciled at Rose Acre, in the first district of Coahoma county; that no return has ever been made to the assessor, and no taxes paid, on the capital stock of the company, but that the real and personal property of the company had been assessed upon the rolls like the property of individuals; that the company owned one thousand, and twenty-four and a fraction acres of land, “above seven hundred acres” of which was in cultivation during each of the years in question, the rest being woodland^ ; that about one hundred and twenty-five acres was planted in nursery stock; that the personal property consisted of mules and farming implements; and that the land which was not planted in rLursery stock was utilized in general farming and in producing cotton and corn. Witness further testified that the authorized capital is seventy-five thousand, dollars, of which sixty-four thousand, eight hundred, dollars was paid in, represented by six hundred, and forty-eight, shares of the par value of one hundred dollars each; that there was no bonded indebtedness, but that the company owed twenty-five thousand, dollars, represented by notes executed for the purpose of paying off the mortage indebtedness when the plantation .was purchased and in making the crops; that the stock was carried on the books at ninety cents on the dollar ever since the organization, but that no dividends had been paid and that the stock was carried at ninety cents just as “a matter or form;” that the company had been unfortunate in its nursery stock, and had had labor and weather conditions to contend with, and on this account the company had not paid dividends.

The following questions with the answers thereto are quite pertinent’ to the present inquiry:

“Q. What, if any, money did you make during the years 1910 to 1915? A. Well, possibly a little, just about holding our own. Almost an even break each year as I recall it. Q. As to the cash market value during the years 1910 to 1915, did it have any cash market value? A. I should not think so. None that I know of. Q. Did it have any cash salable value at that time? A. Why none that I know of.”

Witness was further asked if the business was in better financial condition in 1915 than it was in 1910, and in response thereto said that it was worth possibly one thousand dollars to two thousand dollars more.

The assessment rolls were introduced and witness also testified as to the assessed value of both real and personal property for each of the years for which back assessment is sought. The combined assessed value of both real and personal property varied somewhat each year, ranging from nine thousand seven hundred and ten for the year 1910 to twelve thousand one hundred and seventy-four dollars for the year 1915.

There is no merit in the contention that merely because all of the capital stock of appellee corporation had been invested in real and personal property, and that its real and personal property had been assessed and subjected to taxation, the corporation cannot now be back-taxed upon any portion of its capital stock. The record shows that the corporation has neither been assessed upon capital stock eo nomine, nor paid taxes upon the value of its capital stock as such. There has been no return for assessment nor any assessment whatever of capital stock. The argument of learned counsel on this, the first point relied upon for affirmance, was clearly answered by Judge Anderson, speaking for this court in People’s Warehouse Co. v. Yazoo City, 97 Miss., 500 52 So. 481, and especially by the observations of the supreme court of Massachusetts in Commomwealth v. Cary Improvement Co., 98 Mass. 19, and likewise by the observations of the supreme court of the United States in Adams Express Co. v. Ohio, 166 U. S. 185, 17 Sup. Ct. 604, 41 L. Ed. 965, quoted with appro\ al in the Warehouse Co Case.

The plan of assessment prescribed by section 4267, Code or 1906 (section 6901, Hemingway’s Code), has not been followed or complied with by appellee.

As said by our court in State v. Simmons, 70 Miss. 485, at page 503, 12 So. 477, at page 480, of the opinion: “The words of our statute, capital stock at its market value, include not only the franchise of the corporation, but also its property of all description.”

But, as further stated, in a proceeding of this kind to back-assess the capital stock for taxation: “The assessment heretofore made of the real and personal property of the company should be deducted from the .value of the stock, for, as we have said, they constitute factors in determining its value; ' and, having been once assessed, taxation of it again, under the name of the stock, would be double taxation.”

It is quite true, therefore, that the total assessed value of the real and personal property should be deducted from the value of the stock in the present inquiry. This brings us to the second point relied upon by the appellee for an affirmance, to wit, that the actual market value of the stock was not shown, and therefore the state revenue agent as the plaintiff in the .proceeding could recover nothing.

Much is said in the briefs about the sworn admission of appellee in its answer that the paid-in capital stock “has now a cash market value of something less than par, to wit, approximately ninety cents on the dollar, and has not exceeded that amount in any of the years during 1910 to 1916, inclusive;” appellant contending that this is an admission that the capital stock is worth at least ninety cents on the dollar, while appellee contends that “approximately ninety cents” does not necessarily mean the full amount of ninety cents, and still leaves no fixed basis upon which a verdict could be returned. Appellee further contends that it ought not to be bound by this admission in the answer for the further reason that the manager testified that, the stock was carried on the books at ninety cents as a matter of convenience and form, and that the statement in the pleadings should now yield to the proof. Appellee further contends that the proof failed to fix any valuation upon the capital stock, and on that account the defendant was entitled to the peremptory instruction which was asked for and given. The propriety of this ruling by the trial judge rests, we think, upon the proper consideration of the burden of proof in this ease.

Upon whom was cast the duty of showing and fixing the value of the capital stock in this proceeding? The record affirmatively shows that acting upon the request of the state revenue' agent the official tax assessor of Coahoma county back-assessed appellee on its capital stock at a valuation of seventy-five thousand dollars for each of the years 1910 to 1915, inclusive. The action here may be said to be the joint action of the state revenue agent and the official tax assessor. As stated by Chief Justice Cooper in State v. Kuhn, 72 Miss. 276, 16 So. 598:

"In the execution of the legislative scheme the revenue agent is the directing, impelling agency provided for to put in action the officers and machinery contemplated by the Constitution. He is the state’s agent'to compel action by other officers, in order that the constitutional scheme by which all property was intended to bear its equal portion of taxation shall be effectuated. To accomplish this purpose, it is as necessary that the machinery once set in motion shall be kept going until the end is reached as it is that, motion shall be inaugurated.”

Both the state revenue agent and the tax assessor are public officers, and the general legal presumption that they have regularly and accurately performed their duties must ordinarily be indulged. As stated by Judge Cooley:

“The general presumption that public officers have regularly performed their duties applies to official acts in tax matters.” 1 Cooley on Taxation (3 Ed.), p. 447.

It is said in Amer. & Eng. Enc. Law (2 Ed.), p. 697:

“In the absence of evidence to the contrary it will be presumed that the assessing officers performed their official duty, and authenticated the assessment in the manner and form directed by the statute.”'

In 12 E-ncy. of Evidence, p. 370, it is said: “The proceedings of public officers in the levy, assessment, and collection of taxes are presumed to be regular and legal. ’ ’

And on page 296 of the same volume: “Where a tax assessor in the lino of his official duty makes an assessment of property for escaped taxes, the presumption is in favor of the assessment list and the return thereof.”

Mr. Judson observes: “The burden of proof, which devolves upon the actor in all litigation, is emphasized in tax litigation, that is, in litigation involving the legality of taxation in that the litigant must overcome the presumption that assumes the validity of the exercise of legislative power, and the further presumption, when the acts of taxing officers are complained of, that such officers do not violate their sworn duty.” Judson on Taxation (2 Ed.), par. 645.

It is true that this statement of Mr. Judson is primarily directed to those cases in which the litigant sues to recover back an alleged illegal tax, but the point is ' emphasized that the presumption is in favor of the acts of taxing officers'.

In the case of New Orleans Canal & Banking Co. v. New Orleans, 99 U. S. 97, 25 L. Ed. 409, the Supreme Court of the United States observed: “In this suit the burden of proof is on the bank to show that it has been unlawfully taxed. The decision of the assessor must stand, unless it can be affirmatively controverted.”

In People ex rel. v. Keener, 194 Ill. 16, 61 N. E. 1069, it was stated: “That proof made a complete primafacie case. Tbe collector’s return of the delinquent list, with statutory notice and proof of publication, prima-facie entitles the collector to judgment for the tax returned as delinquent. The presumption is that the assessor and other officers charged with levy and collection of taxes have done their duty, and have not made an illegal assessment or returned an illegal tax delinquent. We have repeatedly held that the burden of proof showing such matters as would avoid the tax or establish its illegality is upon the person objecting thereto.’ Consolidated Coal Co., v. Baker, 135 Ill. 545, 26 N. E. 651, 12 L. R. A. 247; People ex rel. v. Chicago & Alton Railroad Co., 140 Ill. 210, 29 N. E. 730; Chicago & Northwestern Railroad Co. v. People, 171 Ill. 249, 49 N. E. 542. ‘It is the settled doctrine of this court that any one objecting to the enforcement of a tax assumes the burden of showing its invalidity. The presumption is that the tax is just — that all officers who have had any official connection with it have properly discharged their duties.’ Peoria, Decatur & Evansville Railway Co., v. People ex rel., 116 Ill. 401, 6 N. E. 497.”

This quotation was expressly approved in the later case of People v. Hulin, 237 Ill. 122, 86 N. E. 666.

The supreme court of Florida in the very recent case of Camp Phosphate Co. v. Allen, 81 So. 503, employs this language: “The good faith of such officers- and the validity of their actions are presumed. When assailed, the burden of proof is upon the complaining party” (citing authorities).

The fact that the board of supervisors disapproved the assessment does not prevent the application of the rule under discussion. As said by Judge Cooper in State v. Kuhn, supra: “It is as necessary that the machinery once set in motion shall he kept going until the end is reached as it is that motion shall he inaugurated,” and to the revenue agent “the right of appeal was given” by statute.

In this case the revenue agent appealed from the order and in the circuit court the trial was de novo. It was further stated in the Simmons Case, supra: “It is to be noted that assessments of the character now under consideration are made nunc pro tunc.”

The rule of evidence was expressly applied in a hack-tax proceeding in State v. Kidd, 125 Ala. 413, 28 So. 481, in which the court said:

“Tax assessments made in the line of official duty are entitled to the usual presumption of correctness which attends the acts of public officers. Perry Co. v. Selma, M. & M. Co., 65 Ala. 391; 25 Am. & Eng. Enc. Law, 236; 2 Desty, Tax’n, pp. 615, 616. The duty of assessing for escaped taxes, and of making a list and return thereof, is by the statute imperatively enjoined upon the assessor, and such list and return are of equal dignity as evidence with lists made for the current year. The evidence introduced upon the trig! tended to show á valid assessment of property in both these cases, aud in each of them the circuit court erred in giving the general affirmative charge for the defendant. ’ ’

It will be observed that section 4740, Code of. 1906 (section 7058, Hemingway’s Code), in prescribing duties of the revenue agent in making additional assessments, requires ten days’ notice in writing to the person or corporation whose property is assessed and expressly says: “All objections to such assessment shall be heard at the next meeting of the board,” etc.

In the light of the authorities mentioned we are led to the conclusion that upon the trial of this ease in the circuit court the duty devolved upon the corporation not only to disclose hut to fix with some degree of certainty the value of its stock, and that the lack of proof on this point militates against the corporation and it failed to overcome the prima-facie showing made by the taxing officers. If in fact the capital stock had no value in excess of the aggregate assessed value of its real and personal property, then certainly the officers and manager of the corporation could so testify and prove frith some degree of certainty. This is a matter peculiarly within the knowledge of appellee. Indeed our statute (section 4267, Code of 1906 [section 6901, Hemingway’s Code]) requires the president or other'' officer of the corporation to furnish, on demand, this information under oath in making original returns for assessment to the official tax assessor. On the point, therefore, as to want of proof of market value it was error to grant appellee a peremptory charge. It affirmatively appears that the capital stock had some value. Mr. Crowell admitted thát the company had made a little money; that the stock was carried on the books at ninety cents on the dollar; that for two years preceding the trial of this case the company had paid an income tax to the federal government; that the company Avas in better financial condition in 1915 than it was in 1910. As stated by the supreme court of the United States in Adams Express Co., v. Ohio, supra: “It is a cardinal rule which should never be forgotten that AAdiatever property is worth for the purposes of income and sale it is also worth for purposes of taxation.”

There is no merit we think in the plea of res adjudicate.. By an act of the legislature approved February 19, 1892, Coahoma county was divided into two districts; the courthouse of the First district being fixed at Friar’s Point, and for the Second district at Clarksdale. Section 12 of the act, among other things, provides :

“It shall he the duty of the assessor of Coahoma county to file with the clerk of the chancery court of said county, two copies each of the land and personal assessment rolls of said county, filing one of each with said clerk at his office at Friar’s Point and one of each in his office at Clarksdale, and said hoard of supervisors, in passing on said assessment rolls, shall at the proper meeting, held by them at Friar’s Point; approve so much of the same as shall relate to and embrace property included and being in the first district of the county, and at the proper meeting held in Clarksdale, they shall act on and approve so much of said roll, as shall embrace and include the property within the Second district of said county, in all instances acting upon said rolls so far as the territory embraced in each of the respective districts is concerned in the same manner as though the action on or approval thereof related to the approval of assessment rolls of different counties, and the assessor and clerk shall provide suitable copies of said entire rolls as finally approved in all instances where required by law as though said rolls related to different counties; provided, that only one copy of each shall be required to be filed with the auditor of public accounts when the rolls shall have been approved for and so far as the same shall relate to each of said districts.” Laws 1892, p. 368.

This very section of the act was construed by this court in Investment Co. v. Suddoth, 70 Miss., 416, 12 So. 246, and that case rules the point under discussion. In the course of the opinion in the Suddoth Case Judge Cooper said: “It is too clear for contention that the action of the board at its meeting at Friar’s .Point was a nullity in so far as it related to the assessment of the lands situated in the Second district.”

So in the case at bar, the action of the board of supervisors taken at Clarksdale disapproving the assessment of J. C. Johnston, state revenue agent, was in violation of the statute and a nullity.

On neither of the points relied upon by appellee can the peremptory instruction in this case be justified. The judgment of the learned circuit court will accordingly be reversed, and the case remanded for a new trial.

Reversed and remanded.