State ex rel. Foreman v. Wheatley

74 So. 427, 113 Miss. 555

• Court: Mississippi Supreme Court
• Decided: March 15, 1917
• Status: Published

Opinions

Stevens, J.,

delivered the opinion of the court.

(After stating the facts as above). It is agreed that section 112 of our Constitution provides the general standard for the assessment of property for taxation, and for the collection of ad valorem taxes. It furnishes the ideal rule by which the rights of taxpayers are to be measured — the guiding star for the lawmaker and every officer charged with the duty of assessing and valuing property for taxation. But the goal towards, which our state has been striving has never yet been fully attained. The key words of our Constitution are “uniform,” “equal,” “true value,” and to accomplish results, “general laws.” While property in every county is to be assessed at true value, it is a matter of common knowledge and comment that in practice this has been accomplished in name, and not in fact. The Constitution provides for a county assessor, fixes his term of office, and contemplates that this officer shall list and value all taxable property in his county. Experience for a long time indicates- that the assessor generally places upon his roll unchanged the various valuations fixed by the property owner himself. The power to equalize assessments has heretofore been conferred upon the boards of supervisors, but experience further demonstrates that there are as many different standards of values in the state as there are separate boards of supervisors. The uniform rate of state tax must be applied to the unequal and varying valuations over the many counties of our commonwealth. Valuations of the same class of property has varied in adjoining counties without any real or substantial reason for the difference. It follows that heretofore one county has been contributing to the state more revenue than many other c,aunties with the same amount of taxable property. The burden has been unequally distributed. This is the known mischief which chapter 98, Laws 1916, has undertaken to remedy. This law was intended to be a step forward toward the ideal system contemplated by our organic law. Its purpose is to accomplish the very uniformity and equality demanded by the Constitution. The question whether it is a practical scheme or embodies the best wisdom on this subject is of little concern to the court. 'All we are called upon to determine is whether the act is obnoxious to any of the provisions either of our state or federal Constitution.

But first, can the constitutional questions be raised by appellees as they undertook to do and successfully so in the lower court1? Without entering into a prolonged discussion of this subject, about which the authorities are not fully in accord, we prefer to hold in the present case that the questions were properly raised by appellees, and that the court should take cognizance of their complaints. The members of the boards of supervisors hold their office by virtue of the Constitution itself. They have imposed upon them large and important duties and responsibilities; in meeting assembled they constitute an inferior tribunal. It is their duty to approve in the first instance the assessment rolls. If there is no objection, their approval is final. Before the enactment of chapter 98, Laws 1916, their final authority to approve the assessment rolls was unchallenged. While any individual taxpayer had the right of appeal, the order of the board of supervisors approving the roll was not subject to review. In approving the roll they have heretofore acted as' officials, and not as subordinates. When, therefore, the order of the state board directed them to make far-reaching corrections in a roll which they had already approved and submitted to the auditor and the approval of which would be final but for' the new statute here under review, the members of the board would - naturally be confronted with the' question of the validity or invalidity of the order they are directed to obey. If the new law is unconstitutional their corrections would be a nullity, and if a nullity the corrections, if made, would plunge into chaos the revenue system of Washington county. It is a question in which the public has a direct interest. If the statute of 1916 is unconstitutional, any compliance with the order of the state board would be an unconstitutional act, and appellees would in that instance disobey the very Constitution which they have sworn to uphold and obey. We hold, therefore, that the constitutional questions are properly before us.

In the consideration of the merits of this case, it is of course the duty of the court, if possible, to uphold and not destroy the statute. In approaching then the legal questions argued, we do so with sympathetic regard for the work of the lawmaking department of our government.

There is no merit in the contention that the statute is invalid because it permits the. state tax commission to equalize and raise the assessment of personal property without regard to the valuation and assessment of real property. The act itself provides no new standard of assessments. The object of the new law is to assess all property at its true value to the end that all taxable property shall bear its just proportion of the burdens. The general constitutional scheme is binding on assessors, boards of supervisors, and the courts. It is equally binding upon the state tax commission. The fact that in the year 1916 the state board was con-' fronted with the work of equalizing assessments of personalty and not realty affords no ground for complaint. The land assessment rolls were not and could not then be presented for consideration. The land rolls of Washington county effective for the year 1916 are conclusively presumed to be correct. The time for the approval of a new assessment of lands has not arrived, and there is here presented no contention that the state board of tax commissioners has ordered an unlawful increase in the assessment of realty, or has taken any action affecting the rights of landowners.

The second, third, fourth, fifth, and sixth grounds of the demurrer challenge the constitutionality of the ■statute upon the ground that a compliance by the board of supervisors with the order of the state tax commissioners would deprive the individual taxpayer affected by the order of his property without due process of law in this, that the act under review does not provide for notice to be given the ' taxpayer of the proposed increase, does not afford an opportunity to be heard, and that it does not afford redress against an excessive or unconstitutional valuation. Counsel for the state meet this criticism of'the statute by the assertion and argument that, so far as any correction ordered by the board of state tax commissioners is concerned, no notice is required.

Counsel do argue that the aggrieved taxpayer in any particular case has his remedy either under section 91 of the Code relating to certiorari, or by an injunction to restrain the tax collector from collecting taxes upon an excessive or unlawful valuation. They argue further that the individual taxpayers are represented before the state tax commissioners by their representatives, to wit, the members of the board of supervisors. In contending that no notice whatever is required counsel for the state rely upon the case of Bi-Metallic Co. v. State Board of Equalization et al., 239 U. S. 441, 36 Sup. Ct. 141, 60 L. Ed. 372. But in our judgment the express terms of the statute itself dispose of this criticism and the attack based upon the due process clause of our state and federal Constitution. In the first place section 5 of the act, in conferring authority to adjust and equalize as between counties, expressly says:

“And to that end may add a fixed per centum to the assessed valuation of any class of property in any county, if they find that the valuation- was too low: Provided, such raise shall not exceed the actual valuation of the property in any case, ’ ’ etc.

Section 6 of the act then provides as follows:

“Upon the giving of such notice by the chairman of the board of state tax commissioners of changes or corrections to be made in the county tax rolls, it shall be the duty of the president of the board of supervisors of the county affected to call a meeting immediately of said board of supervisors, after giving five days’ notice by posting at the courthouse or publishing in a newspaper of the county, and at the said meeting the said board shall correct the county valuation upon the class or classes of property specified by the board of state tax commissioners, so as to make the same conform to the findings of the said board of state tax commissioners by applying uniformly to the specified class or classes of property the fixed increase or of decrease specified by the said board of state tax commissioners, and by raising or lowering all the individuals’ returns of all the taxpayers of the county upon the specified class or classes of property accordingly.”

This section is subject to two interpretations so far as the rights of the individual taxpayer are concerned. By one construction it would become the duty of the board of supervisors to increase the assessment of every taxpayer in the class of property ordered to be increased and to place the same percentage of increase upon every taxpayer affected. If this is the imperative duty of the board, then the honest taxpayer whose property has • been assessed at true value would be called upon to pay taxes upon an excessive and unlawful increase. If Ms property lias been given in at market price or true value, a price at which perhaps be would be willing to sell, then any additional burden of increase in assessment upon sueh an individual would be in the face of the Constitution and would violate the very uniformity and equality contemplated both by the Constitution and the very statute here under attack. Such an individual should have a right to protest and a remedy provided for by the law. The statute could be construed as requiring the' board of supervisors to raise every individual a like amount without giving them either the right to be heard or any remedy. There is another construction, however, to be placed upon the language of the act, and according to this construction the rights of the individual taxpayer would be noticed and safe-guarded. Section 6 does provide that the meeting of the board of supervisors is to be held upon notice; this notice is a general notice by publication and for the benefit of the public generally. By this notice every taxpayer is advised of the meeting and has a right to attend; by the terms of this section the board of supervisors are not directed to increase every individual taxpayer and fix an arbitrary percentage, but distributes the burden of increase amongst the individual taxpayers within the class of property affected by the order. In raising this class of property they are directed by the state board to increase not the assessment of any particular individual, but the total assessed valuation of that class of property. In accomplishing this increase of total valuation, the board of supervisors are accorded the absolute right to distribute the burden of increase uniformly amongst the taxpayers of that class. The section of the act makes use of the word “uniformly;” we regard the use of this term here in the sense in which the Constitution itself used the word “uniform.” To illustrate, then: If honest Bichard Boe originally gave in his assessment at the top market price — at constitutional true value— and the state board has ordered an increase by which he is to be affected, honest Richard has a right to appear at this meeting of the board and object to the increase so far as he is concerned. In objecting, he has the right to tender evidence, if necessary, to establish his contentions. If the board should overrule his objections he then has the right, under section 81 of the Code, to appeal from the order of the board to the circuit court of his county. In the circuit court his appeal could be tried anew and. a judgment according to right and justice entered. By this construction the interests of any and every individual taxpayer would be protected and an adequate remedy afforded. ■ Section 81 of the Code is a general provision authorizing any person aggrieved by a decision of the board of supervisors “as to the assessment of taxes” to appeal. While the statute here under review is an innovation, it was certainly not the purpose of the legislature to ignore or override the-individual. As to the class of property upon which the increase is ordered there is no final adjudication until the local board has complied with' the order of the state board. In complying with this order the local board is not denied the right to hear the complaints of individuals, and to refuse to increase the assessment of any particular individual whose property is already assessed at actual value. This does not necessarily mean that the local board should not increase the grand total of the class. It is their duty to increase the grand total of the class in accordance with the instructions of the state board, but in making the increase to distribute the burden equitably amongst the members of that class. This construction of the statute frees it from the charge that-it violates the due process clause of both the state and federal Constitutions, and renders the act in this regard constitutional.

If there are two different interpretations of a statute, one of which would render the act constitutional, and the other ■unconstitutional', it is elementary that we should adopt that view and construction which would harmonize the act with the Constitution, and which would therefore uphold and not strike down the work of our law makers. It is our understanding that the interpretation which we here place upon the statute is the interpretation which the board of state tax commissioners themselves placed upon these provisions of the statute.

While the construction of the state board would not .he binding upon this court, it yet remains that the construction which a .department of government has placed upon the very law under which it was created and which it is sworn to enforce should be both suggestive and persuasive with the courts. By circular letter under date of October 23, 1916, the state tax commission by their general instructions says:

“It is not contemplated that any property will be assessed for more than its actual value; and, if any individual assessment would be increased beyond the actual value of the property, the increase should not be made as to it, but the grand total of the class must be increased in accordance with our instructions.”

This remits the.individual taxpayer to his rights and affords him his remedy. It gives him his day in court. It has often been asserted and well said that the individual was not made for the government, but the government for the individual. We shrink from any interpretation that would ignore the rights of the individual taxpayer. We cannot believe the legislature intended either to ignore or to oppress the individual. The legislature in providing that the state board shall return the assessment roll to the local board for cor-. rection indicated a purpose to leave full jurisdiction with the board of supervisors to make the increase in a way not to injure any one. If this was not the purpose, then why provide for a general notice to the public for the call meeting of the local board? This notice is given for the benefit of the public generally. The sufficiency or reasonableness of time or notice in pursuance of which the call meeting of the local board is held is not here brought in question. .

It has uniformly been held in reference to the assessment of property for taxation that a notice by publication is a sufficient compliance with the due process clause of the Constitution. A notice by publication is the only practical or effectual notice possible. This notice the statute expressly provides. It is our judgment, therefore, that any aggrieved taxpayer would be given the right of appeal by complying with section 81 of the Code; and, this being so, it is unnecessary for us either to criticize or to adopt the views expressed by the federal supreme court in the Bi-Metallic Case, supra. It is also unnecessary to indicate whether the taxpayer would have any other or additional remedy either by certiorari or by injunction.

The provisions of the latter half of section 6 of the act in no wise conflicts with what we have said above. This part of the section provides a method by which the board of supervisors may object to the general order of the state board and a way in which they may appear in Jackson with witnesses and present their views. If, upon hearing the objections, the protest of the board of supervisors is overruled, it then becomes the duty of the latter “to immediately revise and correct the county valuation, in the manner hereinbefore in this section contemplated and provided.” It may be that some provisions of this act are drawn rather left-handedly, and may not be altogether clear. We take it, however, that if the board of supervisors instead of complying with any general order of the state board elect to protest within the fifteen days allowed by statute, they are at liberty to adjourn the call meeting and present their contentions before the state board in an effort to secure a rescission of the order or at least a modification thereof. Certain it is that if the state board refuses to rescind the order, the local board must return to their county and make the corrections; and in doing so, it is their duty to equalize the additional increase of burden amongst the taxpayers affected by the order. This view is in absolute harmony with the general scope and purpose of the statute. The statute under review in no wise undertakes to equalize as between individuals, but exclusively between counties. At the same time it does not either expressly or by implication supersede the jurisdiction of the local board to equalize as between individuals, and nowhere does it take away the right of the individual to an appeal. The courts are open to the individual and his appeal to the court even if successful does not and will not disturb the final approval of the roll as to any and all persons who do not appeal.

Counsel for appellees have contended with learning and ability that the entire scheme here proposed undermines and supersedes our constitutional scheme of listing and valuing property by an assessor in each county, and of-having the assessments equalized by the board of supervisors. Reliance is especially had upon the decision of this court in State v. Tonella, 70 Miss. 701, 14 So. 17, 22 L. R. A. 346. The issue raised by the Tonella Case was entirely different from that now presented. The statutes condemned by the Tonella Case attempted to authorize the revenue agent to sue any individual taxpayer of the state for back taxes on property which had been assessed, but in the judgment of the revenue agent had been undervalued, and on property assessed whether lawfully assessed or not. It undertook to authorize a state officer to go behind assessment rolls which had been finally approved by boards of supervisors and which by their approval had become’ fixed judgments as between the state and the taxpayer. The statutes there condemned substituted the one state officer for the constitutional local assessor in the original work of listing and valuing property for assessment and taxation. Any attempt to authorize the revenue agent to ignore the previous judgments of the hoard of supervisors evidenced by the approved rolls, to that extent, tended to disturb vested rights, and, that too, by legislation which in effect was retroactive. Judge Coopeb in his learned opinion called attention to the fact that the scheme there provided for in effect upset all the general revenue laws and the constitutional scheme, and substituted the individual discretion or judgment of one official, even to the extent of authorizing him effectually to increase one man’s assessment without at the same time increasing all others whose property was undervalued. The opinion in the Tonella Case, taken as a whole and viewed in the light of the issues there presented, does not condemn the statute which we are now called upon to construe. The very object of the present law is to accomplish a correct assessment which the Tonella Case holds to be necessary. It accomplishes this purpose before, and not after, the assessment roll has been finally adopted. By the present statute the state board is constituted a higher tribunal with authority to speak before the several rolls are approved. As already indicated, the legislature must have thought that many counties were systematically undervaluing certain classes of property. The Constitution does of course provide for an assessor, fixes his term of office, and contemplates that he shall discharge the duty of listing and valuing the taxable property in his county. When he has done so, the board of supervisors have heretofore discharged the duty of equalizing as between all taxpayers of the county. While the members of the board of supervisors are provided for by the Constitution, the Constitution itself nowhere expressly provides that the board shall equalize assessments. The power to equalize is statutory. Before the act of 1916 can be struck down as unconstitutional, we must be able to point to that provision of the Constitution which expressly or by necessary implication prohibits the legislation. No particular section of the Constitution has been called to our attention which, in our judgment, denies to the legislature the power here asserted. The power of the legislature as the immediate representatives of the people is supreme when not in conflict with the organic law. In their wisdom the legislature has provided the law in a commendable desire more nearly to accomplish uniformity and equality. It does not interfere with the work of the assessor, hut leaves this official free and untrammeled in the discharge of his duties-so far as his judgment goes. The Constitution nowhere makes the judgment of the assessor a finality. To do so would render the revenue laws impotent. It is conceded that the valuations placed by the assessor have heretofore been either increased or decreased by the hoard of supervisors, and that under a statutory potver. The present law simply goes a step further and constitutes a still higher tribunal with statutory power to review, alter, and change the valuations of hoards of supervisors whenever necessary to accomplish equality and uniformity as between counties. There are expressions in the opinion rendered by this court in the Tonella Case which are significant and in entire accord with the views here expressed. At one place in the opinion Judge Cooper says:

“If one'rule of valuation should be adopted in one county and another in another, there would not be equality of taxation.”

And again:

“It is'to be remembered that in all the assessments which are reopened by the law under consideration, the hoards of supervisors had been charged with the duty of examining and equalizing the rolls; and, if this was done, as must he presumed, any action by the revenue agent in changing one assessment would disturb the uniformity and equality of the burden, unless his jurisdiction may be considered as a revisory one, and his finding of the fact of undervaluation of particular property be considered as a judicial determination that all other property appearing thereon had been assessed at its true value.”

The expression “unless his jurisdiction may be considered as a revisory one” unmistakably points to the situation here presented. The state tax commission is created as a department of government with revisory power over boards of supervisors in the work of equalizing assessments between counties. In applying the leveling process as between counties it does not disturb the jurisdiction of the county boards to level or equalize between individuals. Each board has its own peculiar functions to perform. The object of each is to accomplish uniformity and equality, and to see that all property as assessed as nearly as possible at true value.

Our attention has been called to the fact that forty states of the Union have a state board of equalization similar to the one here provided. Our attention is also directed to' many adjudicated cases upholding the constitutionality of these boards and to few cases condemning such statutes as unconstitutional. It would unnecessarily prolong this opinion to refer to various adjudicated cases on this subject or to criticize' or approve the reasoning by the various state courts. In some of the states the Constitution expressly provides for a state board of equalization; in others the board is created by statute. There are so many differences between the Constitutions of the various states, their schemes of taxation, and the public policy as expressed both by statute and- adjudicated cases, that we refrain from commenting on the various cases cited by counsel from other states. We must leave so arduous a task to the digester or writer of footnotes and confine ourselves to our own Constitution and the pronouncements of our own court. They are fully cited in the briefs, and many of them support our views.

We deem it unnecessary to discuss at length Hawkins v. Mangum, 78 Miss. 97, 28 So. 872. The court there condemned the arbitrary classification of property without regard to true value. We direct attention to this specific language of the court:

“This act does not admit of taxation of ‘all property-in proportion to its value,’ as the Constitution requires, hut adjusts it according to the opinion of the assessor, not of its real value, but as to what general class it ought to he put in.”

And on the suggestion of error:

“In the act under consideration there appears no legislative purpose to have an assessment for taxation according to value. On the contrary the confessed purpose is not to do so. . . . Where a thing is undertaken to he taxed, it can be taxed in no other way than according to value. The Constitution requires it, and. every citizen is interested in it, so that the burden shall he equal and uniform.”

The right of the boards of supervisors to increase assessments to cover improvements placed on land and the right of the tax collector to make additional assessments was expressly upheld in Tunica County v. Tate 78 Miss. 294, 29 So. 74, and Powell v. McKee, 81 Miss. 229, 32 So. 919. It is conceded that there must be an assessment. The discharge of this duty in the first instance is the constitutional function of the assessor. Under the present scheme the assessor proceeds with his work now as heretofore. The power to tax is a necessary governmental function. - The legislature has the undoubted right to fix a rate of taxation sufficiently high to cover the expenses and meet the demands of government. Instead of being forced to raise the rate, it ought to'have the right to require all property to be assessed at true value — to demand of every owner of taxable property a fair and honest assessment. So long as this is done no one should have a right to complain.

On the point that the act itself was not complied with, because in the year 1916 the state board increased the total valuations of personal property in the state approximately eight million dollars, we hold as follows: The statute, in onr judgment, authorizes the state board to increase or decrease the total valuation of any class of property in any county to the end that there may he an equalization as between counties. In doing this the board has no authority to increase the assessment of any property above that placed by one or more of the highest assessed counties of the state. It could not arbitrarily exceed the highest valuation placed by any board upon the class of property dealt with. In all eases the act itself expressly limits the state board to true value. If they exceed true value, the individual has a right to protect himself. We cannot assume that the state board will exercise arbitrary power or undertake to confiscate property. If in equalizing as between counties it results that the total valuation of any class of property is thereby increased, a legitimate result is accomplished. The board has the same power to decrease as it has to increase, and the necessary result of the exercise of this power is not unlawful, but legitimate. Whether the board will rightfully exercise this power is a question that cannot, now concern us.

The judgment of the learned circuit court will be reversed, the demurrer overruled, and the cause remanded.

Reversed and remanded.