Opinion
No. 33194.
May 2, 1938.
TAXATION.
Where lots owned by a trustee for a railroad appeared on county assessment rolls and the board of supervisors adjudged that valuation should be assessed by the State Tax Commission, which was done and the taxes paid, the state tax collector could not recover claimed back taxes regardless of any errors of fact or law of the board or commission and of whether the assessment was void on the ground that the lots were entirely disconnected from the railroad's business (Code 1930, section 3201, and section 3204 as amended by Laws 1932, chapter 291).
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Geo. R. Smith and White Morse, all of Gulfport, for for appellant.
Appellee takes the position that although the property here involved is "wholly disconnected from railroad business" that still the State Tax Commission, having attempted to assess it (pursuant to appellee's erroneous listing of the property as railroad property) and taxes having been paid pursuant to such illegal and void assessment, it is not now subject to a valid assessment.
Section 3201, Code of Mississippi of 1930, provides for assessment by the State Tax Commission of railroad property proper. Section 3204, Code of Mississippi of 1930, provides that real estate owned by railroads, wholly disconnected from the railroad business, shall not be assessed by the State Tax Commission, and not be placed on the railroad rolls compiled by the State Tax Commission, but shall be assessed as other real estate by the tax assessor of the county where situated.
The State Tax Commission was without authority to assess this land even had it been owned by a railroad, because it was not connected in any way with the railroad business. Can a void act be res judicata of anything? The Tax Commission was without color of jurisdiction. It could no more make an assessment than the porter of this court could. There being no assessment (always the first step) no taxes could be paid. The attempted assessment being a nullity, the tax payment was a nullity. It is all due to the act of appellee in making an improper return for taxation.
Miss. Valley Co. v. Chicago, etc., R.R., 58 Miss. 897; Robertson v. Puffer Mfg. Co., 112 Miss. 890.
The State Tax Commission was acting under a law complete in its details and limiting its power to assess. When it did more, the act was void.
Y. M.V.R.R. v. Vicksburg, 95 Miss. 701.
Gardner Backstrom, of Gulfport, R.C. Beckett and E.C. Craig, of Chicago, Ill., and Burch, Minor McKay, of Memphis, Tenn., for appellee.
It is apparent from the record as a whole and the admitted facts that all of the lands sought to be back assessed have been listed on the regular land rolls of Harrison County, and have been assessed by the State Tax Commission for all the years in question, and, therefore, are not subject to back assessment at the instance of the State Tax Collector. Therefore, there was no issue before the court on which any papers, books or documents mentioned in the plaintiff's petition to produce could have any relevancy.
Pan American Petroleum Corp. v. Gully, 175 So. 185; Adams v. Luce, 87 Miss. 220, 39 So. 418; Long Bell Co. v. McLendon, 127 Miss. 636, 90 So. 356; Miller v. Copeland's Estate, 139 Miss. 788, 104 So. 176; Union Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Miller v. A.F. A.M., 114 So. 37; Gully v. Newman Lbr. Co., 178 Miss. 312, 172 So. 740.
Section 3201, Code of 1930, provides that each railroad company owning and operating a railroad shall file with the State Tax Commission a complete schedule under oath on forms prescribed and furnished by the State Tax Commission, of all of its property, real or personal, taxable and nontaxable.
Section 3204, Code of 1930, provides that the State Tax Commission shall assess all the property of such companies "but real estate belonging to a railroad which forms no part of the road and is wholly disconnected from its railroad business shall not be assessed on the roll, but shall be assessed as other real estate is assessed by the Tax Assessor of the county where situated."
Chapter 291, Laws of 1932.
Obviously, questions may arise as to whether a particular piece of real estate listed in its schedule by a railroad company "forms no part of the road and is wholly disconnected from its railroad business." In cases of doubt it is for the Commission to decide whether any particular parcel of ground is wholly disconnected from the railroad business. The statute provides that the assessment as made by the Tax Commission remains open for thirty days for protest and an appeal, after which time the decision of the Commission on the question of the character of the use of the land, as well as the valuation becomes final and binding on all parties.
We assert that the Commission has the final jurisdiction to determine whether any land listed by a railroad company, whether its title be legal or equitable, is a part of the railroad, or is "wholly disconnected from its railroad business." It would be unseemly to have conflicting jurisdictions as between the Tax Commission and the county boards of supervisors on this question. However, there is no conflict in the present case because the record shows that all of this land was listed in the name of the Mississippi Valley Company on the land assessment roll of Harrison County and was there classified as being railroad land assessable by the State Tax Commission. The judgment of the Tax Assessor of Harrison County and the Board of Supervisors was the same in this instance as the judgment of the State Tax Commission. Such judgments are binding on the State and the State Tax Collector.
Pan American Petroleum Corp. v. Gully, 175 So. 185.
The State Tax Collector derives his authority from Section 6991, Mississippi Code, 1930, which states that he may cause assessments to be made where "any person, corporation, property, business, occupation or calling has escaped taxation for the previous calendar year or years by reason of not being assessed." The State Tax Collector has no right to cause a reassessment of any property which has already been listed on the assessment rolls.
Adams v. Luce, 87 Miss. 220, 39 So. 418; Long Bell Co. v. McLendon, 127 Miss. 636, 90 So. 356.
No matter how defective or erroneous the assessment or levy may prove the taxpayer who fairly lists his property for taxation and once pays the tax imposed is within the protection of the law.
Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; Miller v. Copeland's Estate, 139 Miss. 788, 104 So. 176; Union Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Miller v. A.F. A.M., 114 So. 37; Gully, State Tax Collector, v. Newman Lbr. Co., 178 Miss. 312, 172 So. 740.
Argued orally by R.C. Beckett, for appellee.
A large number of town lots, most of them unimproved, located in the city of Gulfport, were and are owned by appellee as trustee for the Gulf Ship Island Railroad Company. During the period here in question these lots were not being used in any manner for railroad purposes. For the years 1933 to 1935, inclusive, each and all of them, properly described were assessed upon the assessment rolls of the county as the property of appellee, but no valuation was noted for any of them; and instead thereof there was in each blank space left for valuation a notation "T C," meaning that the valuations were to be made by the State Tax Commission, as if of lots or lands used in connection with the railroad.
The railroad company, in obedience to section 3201, Code 1930, which requires a return to the State Tax Commission of all property, real and personal, owned by each and every railroad in the state, filed its said return and included therein the town lots above mentioned with their values. The Tax Commission passed upon the valuations, certified the lists and valuations to the county authorities, and the railroad company paid the taxes as thus fixed on said lots for each of said years.
Appellant instituted a statutory proceeding to "backtax" these lots as having escaped taxation by reason of not being assessed for said years, his contention being that, since the lots were entirely disconnected from the business of the railroad, as such, the assessment of them by the State Tax Commission was wholly void. See concluding provisions, section 3204, Code 1930, as amended by Laws 1932, c. 291.
As already mentioned, every one of these lots appeared by proper legal description on the assessment rolls of the county, and for every year here involved. They were then and there to be seen by the Board of Supervisors; they were brought to the attention of the board for its consideration what to do with them. They were not withheld from the assessment rolls; but, on consideration thereof, the board adjudged that the valuations should be fixed by the State Tax Commission and this latter was done and the taxes paid. This is an end of the matter so far as the state tax collector is concerned; and this without regard to any errors of fact or of law on the part either of the Board of Supervisors or of the State Tax Commission, and without regard to the question whether the assessment, as completed, was or was not void. Gully v. J.J. Newman Lumber Co., 178 Miss. 312, 172 So. 740; Long Bell Co. v. McLendon, 127 Miss. 636, 90 So. 356; Adams v. Luce, 87 Miss. 220, 39 So. 418.
Affirmed.