Opinion
No. 35085.
January 4, 1943. Suggestion of Error Overruled February 8, 1943.
1. CONSTITUTIONAL LAW.
A court will not invalidate a statute when there exists another ground upon which the same result can be reached.
2. TAXATION.
Under the constitution, no realty or personalty may be assessed at more than its actual value when owner or other party legally bound to pay the ad valorem taxes thereon has shown in any manner provided by law that the assessment or proposed assessment is at a sum in excess of actual value and how much the excess is, regardless of what any assessing authority may attempt to the contrary (Const. 1890, sec. 112).
3. TAXATION.
A taxpayer's rights could not be less in extent or effect when decision of board of supervisors on application for reduction of assessment was in taxpayer's favor, than they would have been if board of supervisors had decided against taxpayer in which case taxpayer could have appealed to circuit court where controversy would have been tried anew and if decided in favor of taxpayer judgment to that effect would be certified to board of supervisors who would thereupon be obliged to conform to judgment (Code 1930, sec. 62, and sec. 3191, as amended by Laws 1934, chap. 187, and sec. 3194; Const. 1890, sec. 112).
4. EVIDENCE.
The State Tax Commission may not resort to common or judicial knowledge as to the value of particular parcels of land.
5. TAXATION.
The State Tax Commission under the constitution is impliedly instructed that property cannot be assessed on any theory beyond its actual value and assessing any particular parcel of property at more than its actual value is not a permissible device in any constitutional procedure for equalization (Code 1930, sec. 62, and sec. 3191, as amended by Laws 1934, chap. 187, and sec. 3194; Const. 1890, sec. 112).
6. TAXATION.
Before the State Tax Commission can reject or disapprove an order of board of supervisors making a reduction in assessment on ground that land had been assessed for more than its actual value, commission must have before it competent evidence to show that order of board is in fact erroneous (Code 1930, sec. 3191, as amended by Laws 1934, chap. 187, and sec. 3194; Const. 1890, sec. 112).
7. TAXATION.
The State Tax Commission's disapproval of order of board of supervisors which made a reduction in assessment on ground that land had been assessed for more than its actual value was void where commission had before it no competent evidence and taxpayer's offer to present evidence was denied by the commission (Code 1930, sec. 3191, as amended by Laws 1934, chap. 187, and sec. 3194; Const. 1890, sec. 112).
8. TAXATION.
Where order of board of supervisors reducing assessment on ground that land had been assessed for more than its actual value was disapproved by State Tax Commission without evidence, and thereafter the board of supervisors proceeded to collect the taxes as originally assessed, taxpayer was not precluded from seeking to enjoin collection of the taxes on ground of an "adequate and efficient remedy at law" by appeal on theory that after rejection of the order, the board should have entered an appealable order denying taxpayer's petition for reduction, since statute makes no provision for any further order by the board upon rejection by the commission (Code 1930, sec. 3191, as amended by Laws 1934, chap. 187, and sec. 3194; Const. 1890, sec. 112).
ANDERSON, J., and SMITH, C.J., dissenting.
APPEAL from chancery court of Scott county, HON. A.B. AMIS, SR., Chancellor.
O.B. Triplett, Jr., of Forest, for appellant.
Appellant instituted suit in the chancery court of Scott County, Mississippi, to require the board of supervisors of Scott County, Mississippi, to reduce the 1940-1941 tax assessment on appellant's lands to their actual value, and give him other equitable relief. His lands had been assessed for taxes in excess of their actual value, and he had applied to appellees for a reduction. His application was approved, but subsequently the State Tax Commission, without notice, disapproved the action of the appellees. Having no opportunity nor statutory right of appeal, appellant sought his remedy in equity, but the chancellor dismissed his bill and from the adverse decree rendered, appellant comes here on appeal.
Appellant does not complain here of any irregularity in the statutory method by which the taxing authorities made up and completed the land rolls for 1940-1941. The various notices were given and the orders were in usual form. If the assessments placed on appellant's lands had not exceeded their actual value, appellant would have been without a remedy even if his lands had been assessed upon a plane of inequality, for he did not object at the meeting of the board when objections upon such grounds must be filed.
But Section 3191, Code of 1930, provides a special remedy where the lands of any taxpayer are assessed for more than their actual value; and the questions here presented are, therefore, the following:
(1) Is Section 3191, Code of 1930, mandatory?
(2) Since this court has repeatedly held that Section 3191 is mandatory, and that a taxpayer may appeal under Section 62 from an order of the board which wrongfully denies an application for reduction, what is the remedy of a taxpayer where the board grants his application, but the State Tax Commission, arbitrarily and without notice, either before or after its action, disapproves the order of reduction?
(3) Since there is neither a provision nor an opportunity for appeal, cannot equity grant the same relief which the circuit court could have granted on appeal, had the board's order been unfavorable to the taxpayer?
The provisions of Section 3191, Code of 1930 (as amended by Chapter 187, Laws of 1934) are mandatory.
Kuhn Bros. v. Warren County, 98 Miss. 879, 54 So. 442; Board of Supervisors of Wayne County v. Mobile O.R. Co., 99 Miss. 845, 56 So. 173; State ex rel. Knox, etc. v. Board of Supervisors of Noxubee County, 146 Miss. 345, 111 So. 594; Selig v. Price, Auditor, etc., 167 Miss. 612, 142 So. 504; Board of Supervisors of Jefferson Davis Co. v. Trexler Lbr. Co., 109 Miss. 372, 69 So. 181; Franklin County v. Homochitto Lbr. Co., 164 Miss. 654, 146 So. 304; Code of 1930, Sec. 3191; Code of 1892, Sec. 3799.
Under the facts in this case, appellant's unquestionable right was only remediable in a court of equity.
Evans v. Board of Supervisors of Calhoun County, 192 Miss. 188, 5 So.2d 224, 226; Selig v. Price, Auditor, etc., supra; Code of 1930, Secs. 62, 3194.
Equity will not suffer a wrong without a remedy.
Griffith's Miss. Chancery Practice, Sec. 35.
Equity affords relief where the remedy at law is inadequate.
Board of Supervisors of Noxubee County v. Ames (Miss.), 3 So. 37; Griffith's Miss. Chancery Practice, Sec. 24.
Had the appeal been taken from an unfavorable decision by the board, the circuit court would have had power to render such judgment as the board ought to have rendered and certify same to the board. Surely equity could do this. And this order would have been (a) to reduce the assessment; (b) to direct the clerk of the board to change the original assessment roll in his office; (c) to direct the sheriff and tax collector to change the copy in his possession; and (d) to give the sheriff and tax collector proper credit therefor.
We earnestly contend that actual and not fictitious values are taxable; that the policy of the law is not to tax a thing which does not exist; that our present Section 3191 of the Code has always preserved for the taxpayer the right to seek and obtain a reduction of such an amount of tax assessment as exceeds actual value; and that this right is not to be lost merely because the legislature, in providing for a review by the Tax Commission, failed to previse a case where the board of supervisors would grant a just application for reduction, fully supported by proof, and the Tax Commission, without any evidence to the contrary, would arbitrarily disapprove the order of reduction.
With no legal remedy available, equity opens to appellant the only door to the temple of justice.
We respond to three questions raised by this court as to the effect of the actions taken by the State Tax Commission:
(1) Did its disapproval have the effect of increasing appellant's assessment?
(2) Does its power extend only to an examination of the record for errors apparent?
(3) Or, does Section 3194. Code of 1930, contemplate an examination into the facts?
The language of the statute is that, "Upon receipt of the copies of the order and application . . . the State Tax Commission shall consider the same (i.e. the copies of the order and application) and approve or disapprove the order, and enter its approval or disapproval thereon, and shall . . . return (one copy) to the clerk of the board of supervisors."
Were this the only provision in the statute, we would unhesitatingly reply that the Tax Commission was only empowered to examine the transcript to determine the legal sufficiency of the order. Having made no provision for a re-hearing or a hearing de novo before the commission, the legislative intent would seem to be that only the application and order could be "considered." If this be the proper construction of the statute then, as will be hereinafter noted, the order of disapproval is a nullity for two reasons: (1) There was no error or defect in the application or order and the disapproval was therefore an arbitrary and unconstitutional exercise of administrative power in violation of the fundamentals of due process; and (2) no reasons for disapproval were assigned by the commission, and the order for this reason was violative of due process of law vouchsafed by state and federal constitutions.
But the effect of the commission's disapproval was tantamount to an increase of appellant's assessment to its original excessive valuation; and this conclusion is reached from the subsequent provision in Section 3194: "No assessment shall be . . . decreased and no credit to . . . the tax collector of any county on account of such . . . decrease shall be entered by the auditor of public accounts or by any county auditor except as shown by an order (1) adopted by the board of supervisors and (2) approved by the State Tax Commission as herein provided . . ."
In other words, the reduction to actual values could not become effective until the order of the board of supervisors was approved by the Tax Commission. The nearest analogy which we can think of is that of a master in chancery. The board was the master who made up the record; and from the undisputed facts they found that appellant was entitled to a stated reduction to actual values. The commission was the chancellor, whose duty it was to accept the findings of fact and apply the law thereto. The hearing before this quasi-chancellor was conducted (1) without notice, and his decree (2) disregarded the evidence, (3) was contrary to it and (4) assigned no basis on which it was entered. We respectfully submit that the State Tax Commission was an administrative agency clothed with power to ultimately pass upon and deny appellant's application for tax reduction; and, being invested with such power, the hearing before it required an observance of the taxpayer's rights to due process of law. Section 3194, in failing (1) to require notice to the taxpayer of such hearing and (2) to provide for a hearing or an appeal, is therefore unconstitutional insofar as its provisions attempt to give to the State Tax Commission any power to disapprove the action of the board of supervisors.
Appellees do not attempt to defend the constitutionality of Section 3194, nor do they suggest that there was any semblance of due process accorded to appellant by the State Tax Commission. They say however (1) that due process was accorded when the rolls were approved in September; and that appellant was merely seeking a rehearing or new trial when he applied for a reduction to actual values; and (2) that due process was only required at one stage in the tax proceedings, namely at the September meeting; and not then where only a horizontal raise was made.
If appellant's lands had not been assessed for more than their full actual value, the approval of the rolls in September would have been a final judgment.
Warren County v. Mississippi River Ferry Co., 170 Miss. 183, 154 So. 349.
But the finality of such a judgment presupposes that the assessment is legal and valid.
Mullins v. Shaw, 77 Miss. 900, 28 So. 958; North v. Culpepper, 97 Miss. 730, 53 So. 419.
And if the judgment rendered is based upon an assessment in excess of the actual value of the taxpayer's property it is unconstitutional and therefore null and void.
City of Hattiesburg v. N.O. N.E.R. Co., 141 Miss. 497, 106 So. 749.
In this case the board of supervisors was without power to assess appellant's lands in excess of their true value; and because of this constitutional limitation on their power, their order was absolutely void.
61 C.J. 166, Sec. 117.
There being no valid and final judgment against the taxpayer, he owed no tax. He could ignore the tax levied, or he could pay same under a general protest and sue for its recovery.
Hattiesburg v. N.O. N.E.R. Co., supra.
Therefore, if the taxpayer, without resorting to the courts voluntarily came before the board and submitted himself to an assessment of his property at its full, actual value, it would have been absurd to say that the board could ignore his application.
Kuhn Bros. v. Warren County, 98 Miss. 879, 54 So. 442; Selig v. Price, Auditor, 167 Miss. 612, 142 So. 504; Board of Sup'rs of Jefferson Davis Co. v. Trexler Lbr. Co., 109 Miss. 372, 69 So. 181.
These decisions of our court, with many others, clearly declare that the right of the taxpayer under Section 3191 of our Code is not in the nature of a rehearing. Instead, there being no valid judgment fixing an assessment of his property, the taxpayer asserts an enforceable right to have an assessment placed upon his property at its actual value. The order of the board of supervisors of March 6, 1941, therefore, for the first time, gave to appellant a valid assessment of his lands at actual values; and no administrative body could deprive him of his rights thus accorded without complying with the requirements of due process of law.
Even if the assessment of appellant's lands at the September meeting had been valid, it was neither "final" nor "conclusive."
Appellees correctly state the general rule that due process has been accorded if opportunity to be heard at some stage of the proceedings is given "before final judgment is entered." Citing Gallup v. Schmidt, 183 U.S. 300, 46 L.Ed. 207, 22 S.Ct. 162. Other authorities use the expression "conclusive judgment."
But here, if the excessive assessment had been valid, it was not conclusive. For as to taxpayers whose lands were assessed for more than their actual value, the legislature provided that they might make their objection under Section 3191, at any time before they paid their taxes, and require the board to reduce the assessment down to actual values.
Hence as to such taxpayers, this was an opportunity to be heard and one which the court has repeatedly enforced.
Thus, as to appellant, his application to the board at its March session was an original hearing and not a rehearing.
There was no due process accorded appellant, nor was his property affected by an alleged horizontal raise. Appellees go out of the record in an effort to show that a horizontal raise of cut-over lands was made by the board of supervisors at the September meeting; and that the requirements of due process were (1) met at the September meeting or (2) evaded by the so-called horizontal raise. A sufficient answer to such argument is that regardless of how appellant's lands were assessed, the amount was 50 per cent in excess of their full actual value; the order entered at the September meeting was therefore, as to appellant, null and void; and his right to have his assessment fixed at actual values in a proceeding giving him an open, honest hearing was thereby unaffected.
A second reply would be that the notice to taxpayers and the board meeting following same in September was for the purpose of "equalizing" assessments; and no taxpayer who is willing to pay an assessment on the full actual value of his property need examine the rolls. The law of the land gives him the right to assume and presume that his lands will not be illegally assessed for more than their actual value. If they are, Section 3191 acts for him as a saving clause whereunder he can, at any time before he pays his taxes, go before the board and compel a reduction to actual values.
If the board declines to give him an assessment at actual values he can go into court by appeal or injunction and compel the reduction.
If the board grants his request and makes an assessment of his lands at actual values, may it then be said that the State Tax Commission can review the matter, and by arbitrary, whimsical and capricious action disapprove the board's action, defeat the appellant's rights, destroy the mandatory provision vouchsafed to all taxpayers, and with the finality of dictatorship deprive appellant of all redress in the courts? Of course not.
Greek L. Rice, Attorney-General, by W.D. Conn, Jr., Assistant Attorney-General, for appellee, State Tax Commission.
In response to the request of the court we submit this our brief directed to the questions contained in the memorandum which went out from this court in this cause.
From the request it appears that the court is disturbed as to the matter of due process or lack thereof in a procedure before the State Tax Commission in the administration of Sections 3191, 3192, 3193 and 3194 of the Code of 1930.
The board of supervisors made an assessment of appellant's property final as provided by Section 3165 of the Mississippi Code of 1930. At the meeting thus provided no exceptions to appellant's assessments were made by him or anyone else. He offered no objections to his assessment.
Code of 1930, Sec. 3166.
It was expressly stipulated and agreed at the trial that appellant was neither a minor nor a person non compos mentis.
Section 3179 of the Code of 1930 provides that any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessment shall have the right of appeal to the circuit court in the manner provided by law, within ten 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.
Section 62, Code of 1930, provides that a person appealing from an assessment of taxes is required to give bond in double the amount of taxes in dispute, such bond to be conditioned to perform the judgment of the circuit court, 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 percentum on the amount in controversy and all costs.
Thus, we see from the statute that when a person has allowed an assessment against his property to become final, has filed no protest and has taken no appeal to the circuit court, the assessment becomes final and there is nothing left for the taxpayer to do except to pay the taxes thus fixed.
The assessment roll is a solemn document, a final judgment. When placed in the hands of the sheriff and tax collector it constitutes a mandate directing him to collect the taxes calculated on the assessment and the tax levy as adopted by the legislature and the board of supervisors. If the taxes are not paid, the tax collector is required to sell the property for the taxes thus due thereon and may as a result thereof divest title out of the delinquent taxpayer and invest it in the purchaser at the sale.
Thus, we come to a consideration of the four statutes above referred to, beginning with Section 3191 of the Code of 1930, which was amended by Chapter 187 of the Laws of 1934, such amendment merely adding another circumstance by which an assessment may be increased or decreased after final approval, but in no sense disturbing subsection 14 of the statute as it appears in the 1930 Code, which provides for a change in assessment when the property has been assessed for more than its actual value. Another change was made in the 1934 law which fixed the time within which such changes could be made, but that amendment is not involved here since the application for change was made within the time limit thus fixed.
Just what was the purpose of the legislature in enacting the law contained in these four sections? Section 3191 provides that the board of supervisors "shall have power" to change assessments under certain conditions. Under this the board is not required to change any assessment — there is no way to require it to make a change, but it is given "the power" to do so under certain conditions there enumerated. It has the power but it is not necessarily required to exercise it. It may or it may not. It is a matter addressed to the discretion of the board, and the Tax Commission is given the right under Section 3194 to veto or approve the action of the board, this latter provision being inserted in the law apparently to prevent an abuse of discretion by the board.
The provisions of these four sections merely provide for or extend to certain taxpayers the sovereign's grace. The situation is similar, in my judgment, to an application filed with the Governor for a pardon following conviction of an offense. In the one case there is a final judgment for taxes. In the other, a final judgment of conviction of an offense. The governor has the power to pardon but he is not required to exercise it. That is a matter addressed to his own discretion, but as to him there is no higher or supervisory power. As to the board of supervisors, as respects a judgment for taxes, there is a higher power, viz., the State Tax Commission. This is in no sense, as we see it, a judicial proceeding, one in which the requirements of due process are applicable.
In the light of the above general observation, we come now to what we consider the most vital question in this case, and that is the question of jurisdiction of the chancery court to entertain this proceeding which was one seeking to enjoin the board of supervisors from having its judgment for taxes enforced.
The only jurisdiction of the chancery court to enjoin the collection of taxes is contained in what is currently Section 420 of the Mississippi Code of 1930.
Purvis v. Robinson, 110 Miss. 64, 69 So. 673.
This jurisdiction, however, is not absolute, because this court has heretofore construed it to be subject to the general doctrine that an injunction will not lie unless the party is without a plain, adequate and complete remedy at law.
Coulson v. Harris, 43 Miss. 728; McDonald v. Murphree, 45 Miss. 705; Anderson v. Ingersoll, 62 Miss. 73; Board of Supervisors of Noxubee County v. Ames (Miss.), 3 So.2d 37; Purvis v. Robinson, supra.
See also Madison County v. State Highway Commission, 191 Miss. 192, 198 So. 284.
The court is committed to the proposition that where the law has fixed a remedy, one must pursue it, and failing so to do, he cannot resort to chancery in an injunction proceeding. Thus we see any number of cases from this court where chancery jurisdiction has been denied if the party seeking the injunction has an otherwise adequate remedy at law.
Coulson v. Harris, supra; McDonald v. Murphree, supra; Anderson v. Ingersoll, supra; Board of Supervisors of Noxubee County v. Ames, supra; Purvis v. Robinson, supra; Reed v. Norman-Breaux Lumber Co., 149 Miss. 395, 115 So. 724; Western Union v. Kennedy, 110 Miss. 73, 69 So. 674.
Applying the rules set out in these cases, we have this situation: We have a final judgment as filed by the assessment roll and finally approved. There were no exceptions and no objections thereto by appellant. He had an adequate remedy at law to test the validity of his assessments. He failed or refused to follow the remedy afforded by law. Now, with the sheriff and tax collector demanding the payment of his taxes he files his application under the provisions of Section 3191, et seq., Code of 1930, and collaterally attacks the judgment — a thing which this court has never permitted, as was shown in the cases above cited and referred to.
We, therefore, assert that the chancery court is without jurisdiction to entertain this proceeding; that it was properly dismissed by the chancery court of Scott Connty, and that this court should affirm the judgment.
J. Knox Huff, of Forest, for appellees.
It is obvious even from a cursory study of this record that if the appellant's lands have been over-valued for assessments, it is due solely to his laches. Before he commenced his action he had declined to appear after due process and defend his position.
First, he made no objection to the assessments after the roll had been equalized in August, 1940. So to speak, he permitted a pro confesso decree as of the latter date to be made final against him by the order approving the roll on September 10, 1940. He made no objection. He prosecuted no appeal. He stands to have admitted that the assessments were correct; and he should be estopped from denying such admissions.
Hence, next, after his taxes were in default he brings a petition to the board under Section 3191 of the Code seeking the special privilege of an extraordinary exemption. He obtained an order which sought to nullify the judgment rendered against him by the same board six months before, and which was reviewed and approved as aforesaid by the State Tax Commission. Before the order of the board last above referred to could be made effective, under Section 3194 of the Code came the matter of approval of the State Tax Commission. Remember the commission had reviewed that same land roll. The business in which admittedly the board is non-expert, the commissioners are specialists. Therefore, knowing that appellant's lands were not assessed for more than their value and not subscribing to the policy of special privileges to large landowners the commission very promptly declined to approve the order of the board. The effect was to nullify the order of the board making the reduction.
Now, that happened on March 26, 1941. Again the appellant took no appeal. He sat down on his constitution and pondered his cumulation of evidence, obtained as a suppliant from the non-expert board of supervisors, to the effect that his lands actually were assessed for more than they were worth. At long last on August 25, 1941, he comes forth with the original bill in this suit to compel the board to do — what already they had done — all they could do — say that in their non-expert judgment the lands were assessed for more than they were worth.
The chancellor, wise in the ways of all such matters, seems to have thought that if the appellant had the right of further review, under the statutes, it should have been by appeal from the order of the Tax Commission in refusing to approve the board's order of reduction; and that again the appellant had "sinned away his days of grace" in failing to appeal from that order. Obviously his court was not open even to an appeal in the case. But the point is that is not a case in which the appellant has not had his day in court. Before he started the suit at bar all matters at issue timely and orderly had been concluded against him.
It may be that the statutes are not clear as to the procedure for reviewing the order of the State Tax Commission. But no effort has been made by the appellant for an appeal from the order of the commission. Again, it may be that no review statutorily is contemplated. In the latter event we are not without authority for the position that even if no review should be allowed by a proper appellate forum, this suit should not be maintained.
2 Am. Jur. 847, Sec. 6.
Appellant failed to avail himself of an appeal from the adverse order at which he is aggrieved.
The order of the court requiring additional briefs addresses one question which if correctly answered in the negative would seem to close further inquiry. That question is: "Did the disapproval of the State Tax Commission have the effect of increasing appellant's assessment so as to bring into play the text and authorities cited therefrom in 12 Am. Jur., Constitutional Law, Sec. 642, p. 334, among which cited cases is Beveridge v. Baer, 84 A.L.R. 189, which refers to the notes in 24 A.L.R. 331?" The correct answer should be in the negative, if prior to the time when he filed his petition to the board the lands of the appellant had been validly assessed, under statutes which afforded him due process and his day in court. One hearing is all the constitution requires.
Warren County v. Mississippi Ferry Co., 170 Mo. 183, 154 So. 349; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Pittsburg C.C. St. L. Ry. Co. v. Backus, 154 U.S. 421, 38 L.Ed. 1031; Simon v. Craft, 182 U.S. 836; Louisville N.R. Co. v. Schmidt, 177 U.S. 230, 44 L.Ed. 747, 20 S.Ct. 620; Henderson Bridge Co. v. Henderson, 173 U.S. 592, 615, 43 L.Ed. 823, 831, 19 S.Ct. 553; Taylor v. Secor, 92 U.S. 575, 23 L.Ed. 663; Kentucky Railroad Tax cases, 115 U.S. 321, 29 L.Ed. 414, 6 S.Ct. 57; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 33 L.Ed. 892, 10 S.Ct. 533; Gallup v. Schmidt, 183 U.S. 300, 46 L.Ed. 207, 22 S.Ct. 162; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Davidson v. New Orleans. 96 U.S. 97, 24 L.Ed. 616; Spencer v. Merchant, 125 U.S. 345, 31 L.Ed. 763, 85 S.Ct. 921; Code of 1930, Secs. 3121, 3161, 3162, 3164, 3183, 3191.
The general rule is not applicable except in original assessments; and not then in cases where only horizontal raises are ordered. The assessment at which appellant complains is the result of a horizontal raise.
The facts of record and those of which the court may take judicial notice do not bring this case within the general rule laid down in 12 Am. Jur., Constitutional Law, Section 642, page 334, as supported by the authorities cited, among them being Beveridge v. Baer, 84 A.L.R. 189, annotations thereunder and the notes at 24 A.L.R. 331.
Argued orally by O.B. Triplett, Jr., for appellant.
Section 3191, Code 1930, as amended by Chap. 187, Laws 1934, so far as material to the questions now before us, reads as follows:
"The board of supervisors of each county shall have power, upon application of the party interested . . . to change, cancel or decrease an assessment in the manner herein provided, at any time after the assessment roll containing such assessment has been finally approved by the state tax commission, prior to the ending of the fiscal year in which the taxes on such assessment are payable, under the following circumstances and no other:
". . . When the property has been assessed for more than its actual value; but the board shall require proof of the overvaluation by two or more persons who know of their own personal knowledge that the property is assessed for a higher sum than its true value."
Appellant is the owner of several separate parcels of land in Scott County. The board of supervisors, in passing upon the assessment rolls of the county for the year 1940 at its August and September, 1940, sessions, increased the assessment on appellant's land as made by the assessor, and the rolls thus increased were approved by the State Tax Commission Thereafter and on March 4, 1941, during a regular session of the board of supervisors, appellant presented his application or petition to the board praying that the assessment made against his lands, the lands being fully and definitely described in the petition, be reduced to the extent of $1 per acre, it being alleged that to that extent the lands were assessed at more than their true value. The petition was supported by an affidavit annexed thereto of two persons who affirmed upon their own personal knowledge, and at this point it may be appropriate to note that the petition was in all things strictly in compliance with all and singular the requirements of the law, and was within the statutory time.
This petition with the proof in support thereof was heard by the board of supervisors on March 6, 1941, and on that date the board entered its order reciting inter alia, "and it appearing to the board of supervisors from the evidence, both oral and documentary, offered in support of said application that the assessment as it now appears on said roll is incorrect in the following particulars: That the property listed as follows was assessed at values which hereinafter follow and should be allowed reduction as stated below:", and this is followed by the several descriptions and a reduction of $1 per acre for each description, and the order concludes with the recital that "The assessment of each separate tract listed by petitioner and made a part of this order by reference is assessed for more than its actual value to the extent shown by petitioner in the extreme right hand column thereof, the Clerk of this Board being directed to copy said schedule as an exhibit to this order."
The further details of the order will not be pursued, but we will summarize by the statement that in all respects the order was full, complete, and specific, complying with every requirement of the law, and it did reduce the assessment of appellant's several parcels of land to the extent of one dollar per acre on each of the said parcels.
Section 3194, Code 1930, requires that when an assessment has been reduced under Section 3191, the clerk of the board of supervisors shall certify two copies of the order of the board of the State Tax Commission and shall attach thereto the original and duplicate application; and the section further provides: "Upon receipt of the copies of the order and application . . . the state tax commission shall consider the same, and approve or disapprove the order, and enter its approval or disapproval thereon, and shall file one copy of the order . . . with the auditor of public accounts and shall return the other copy to the clerk of the board of supervisors. Upon receipt of the approved order . . . the clerk shall transmit a certified copy of the order to the tax collector of his county and shall file the application as a record in his office."
It will be noted that there is no provision for notice by, or for a hearing before, the Tax Commission, and no rule is laid down for the guidance of the commission, and that nothing is required to be done by the clerk or by the board in case the order is disapproved by the State Tax Commission.
All the required papers were filed with the State Tax Commission on March 12, 1941, and on March 26, 1941, the commission disapproved the order of the board of supervisors, but without any statement of the reason therefor, and sent the copy with the disapproval endorsed thereon to the clerk of the board of supervisors. Thereupon the board of supervisors and the other revenue officers of the county were adhering to and proceeding in the demand to collect taxes on appellant's land under the original assessment, rather than upon the reduced assessment, whereupon appellant paid to the tax collector, under protest, a portion of the taxes demanded and filed his bill for relief in the chancery court and paid to the clerk as register of the court the balance so demanded, to be held by him to abide the result of his suit.
When the suit came on to be heard, appellant proved by six witnesses upon a stipulation between the parties that the land of appellant was assessed in excess of its true value to the extent of one dollar per acre; and this evidence is undisputed. Appellant further proved that the State Tax Commission in its supposed action in disapproving the order of the board of supervisors had no evidence before it, gave no notice to the taxpayer, acted without any notice to him, and that when he learned of its attempted action, he went to the tax commissioner in charge and offered to make the proof by any competent evidence, and that the Tax Commission, through its vice-chairman, refused to permit him to be heard, and stated that the commission would not be interested in any evidence whatever; and all this also is undisputed. Appellant's bill was dismissed by the chancery court, and he appeals to this court.
Appellant contends, with the support of a wealth of authorities, that the provision of Section 3194, which confers upon the Tax Commission the jurisdiction to review a reduction made by the board of supervisors under Section 3191, is void on its face for the reasons, (1) that the legislative department has fixed in Section 3194 no standard by which the action of the tax commission shall be guided, and (2) has provided for no hearing before the commission, and for no notice to the petitioning taxpayer of the time when the commission will hear the issue or issues under review.
Under the familiar rule that a court will not denounce a statute as void when there exists another ground upon which the same result would be reached, we pretermit decision on the aforementioned questions and proceed rather to attend to the merits of this case upon the fundamental principle implicit in Section 112, Constitution 1890, that no parcel of real property and no piece of personal property shall be assessed at more than its actual value when the owner or other party legally bound to pay the ad valorem taxes thereon has shown in any manner provided by law, as the owner has done here, that the assessment or proposed assessment is at a sum in excess of actual value and how much the excess is, and this regardless of what any board or commission or other assessing authority may attempt to the contrary.
Had the board of supervisors denied appellant's petition in this case, he would have been entitled under Section 62, Code 1930, to appeal from its decision to the circuit court at any time within ten days after the adjournment of the meeting at which such adverse decision was made, and the circuit court would have tried the controversy anew, and if decided in favor of the taxpayer, the judgment to that effect would be certified to the board of supervisors who would thereupon be obliged to conform to the judgment so rendered, and the State Tax Commission in such case would have nothing to do with the matter.
In the trial anew in the circuit court on the appeal thereto, the taxpayer would be entitled to an instruction to the jury to the effect that under the Constitution of this state no specific parcel of real estate may be assessed at more than its actual value, and that if the jury believe from the preponderance of the evidence that the property in question has been assessed for more than its true value, the jury shall return a verdict for the taxpayer and shall in its verdict find and fix the amount of such excess.
Certainly, the rights of the taxpayer cannot be less in extent or effect when, as in this case, the decision of the board of supervisors has been in favor of the taxpayer. In the latter case the statute, Section 3194, has made the State Tax Commission a board of review, and the law under the Constitution writes the same instruction to the commission for its guidance which the court would have given to the jury, as aforestated. The jury could not have resorted to common or judicial knowledge as to the value of the particular parcels of land, whatever may be the rule as to land values generally, and neither may the Tax Commission. This issue is not within the permissible range of common knowledge, as we have recently had occasion to say. Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644, 645. And the jury could not have brought out a verdict, contrary to the evidence, on the theory that the assessment, as originally made, would equalize the value with other property of the same class throughout the state or county; for the jury had been instructed that the property could not be assessed on any theory or pretense beyond its actual value, and the law under the Constitution gives the same instruction to the Tax Commission. Assessing any particular parcel of property at more than its actual value is not a permissible device in any constitutional procedure for equalization. Compare State ex rel. v. Wheatley, 113 Miss. 555, 74 So. 427.
It follows, therefore, that before the State Tax Commission could lawfully reject or disapprove an order of the board of supervisors making a reduction under Section 3191, the commission must have before it competent evidence to the effect that the order of the board of supervisors is in fact erroneous. In the case in hand it is undisputed that the Tax Commission had before it no competent evidence whatever, and that when the taxpayer appealed to the commission to allow him to present the evidence before the commission, the offer was denied with the statement by the commissioner in charge that the Tax Commission would not be interested in any evidence. The action and order of the State Tax Commission declining to approve the order of the board of supervisors was, therefore, without legal support and was void, thus leaving the order of the board, made in response to the petition of the taxpayer, in full effect, and the chancery court should have so declared and adjudged, with such further orders in its decree as would furnish the taxpayer full relief in the premises.
We do not pursue the many contentions made in behalf of appellees other than to pronounce them untenable. We make an exception, however, in respect to the contention that appellant should not be allowed recourse to chancery, because, as it is said, he had a plain, adequate, and efficient remedy at law by appeal. There has been no assertion that the taxpayer should have appealed directly from the adverse decision of the State Tax Commission since the statute makes no provision whatever for an appeal from the decision of the commission, and certainly he could not appeal from the action of the board of supervisors, for that decision was favorable to him. But it is said that after the order of the Tax Commission disapproving the decision of the board of supervisors had been received by the board, the latter should have entered an order denying the taxpayer's petition so that the taxpayer could appeal from that order, and that the taxpayer should have sought such an order from the board and that not having done so is barred because not having appealed from the unentered order. There are several obvious answers to this, but it is sufficient to say, in this respect, that, as already mentioned, the statute makes no provision whatever for any further order to be entered by the board upon rejection by the State Tax Commission, and it is to state no more than an elemental proposition that a board of supervisors can enter only such orders as are authorized by statute.
Without further prolonging this opinion, we hold, as heretofore indicated, that the order of the State Tax Commission disapproving the action of the board of supervisors was void and that the order of the board of supervisors sustaining the petition of the taxpayer stands in final force and effect, and that equity has jurisdiction and the duty to afford full relief to the taxpayer in the premises.
We, therefore, reverse the decree and enter here the decree which the chancery court should have entered under the facts which, as already stated, are undisputed. The decree here will be that the order of the State Tax Commission made, or attempted to be made, on March 26, 1941, is void and is vacated and reversed; that the order made by the board of supervisors on March 6, 1941, stands in full force and effect; that the clerk and register of the chancery court shall, out of the money deposited in his hands by appellant, pay to the tax collector of said county the balance of the taxes due on the lands for the year 1940, calculated on the valuations shown in the said order of March 6, 1941, and without interest, cost or damages, the clerk delivering to the tax collector at the same time a certified copy of said last mentioned order, which certified order shall be the warrant to the tax collector for his collections on said land for the taxes of 1940 and also for the taxes of 1941, and the remainder of said money, after paying as aforesaid the balance of the taxes for the year 1940, the clerk and register shall return to appellant. And appellant shall have leave to file any supplemental bill to enforce the decree now entered if necessity therefor shall arise. Appellees to pay all court costs.
Reversed, and decree here for appellant.
DISSENTING OPINION.
Appellant filed his bill in the chancery court of Scott County against appellee, the board of supervisors of that county, to enjoin the latter from levying the 1940-1941 taxes on his lands in that county. Equity jurisdiction was invoked upon the ground there was no adequate remedy at law. That is the question, and the only question, in the case, although there are other questions leading into it which become a part of it. There is no dispute as to the facts. Before the bill was filed the equalization meeting of the board of supervisors had passed and so had the equalization meeting of the State Tax Commission and also the final meeting of the board of supervisors correcting and approving the rolls. The board of supervisors had complied with the statute requiring notice to the taxpayers of the latter meeting. Those meetings of the board of supervisors and the Tax Commission are provided for in Sections 3162, 3163, 3164, 3165, 3167, 3176, 3177 and 3178, of the Code of 1930. At the final meeting of the board, notice of which had been given appellant along with all other taxpayers, appellant made no objection to the assessment of his lands, as he had the right to do, therefore the rolls were approved so far as he was concerned. He waited and proceeded under Sections 3191 and 3194 of the Code. The applicable provisions of Section 3191 are the first and last paragraphs, which follow:
"The board of supervisors of each county shall have power, upon application of a party interested; or by the tax assessor on behalf of such party, or otherwise as prescribed herein to change an assessment in the manner herein provided, at any time after the assessment roll containing such assessment has been finally approved by the state tax commission, under the following circumstances, and no other:
. . . . . . .
"14. When the property has been assessed for more than its actual value; but the board shall require proof of the overvaluation by two or more persons who know of their own personal knowledge that the property is assessed for a higher sum than its true value."
He made application to have the assessed value of his lands reduced from $16,850 to $13,268, being a total reduction of $3,582, and made the necessary proof required by the statute for that purpose. The board of supervisors made the following order thereon:
"It is, therefore, ordered by the Board of Supervisors of Scott County, Mississippi, that the assessment on pages and lines be set forth in said schedule be reduced from $16,850.00 to $13,268.00, being a total reduction of $3,582.00 for the years of 1940-1941.
"It is further ordered, that the Clerk of this Board certify two copies of this order to the State Tax Commission, for its approval or disapproval; and, if the foregoing order be approved by the State Tax Commission, the Clerk of this Board is hereby authorized and directed to change the Original Assessment Roll in his office, and the Sheriff and Tax Collector of this County is hereby authorized and directed to change the Copy in his possession, to conform with the provisions of this order; and the Sheriff and Tax Collector be given the proper credit therefor, including district taxes."
Section 3194, Code of 1930, provides that the board of supervisors shall certify a copy of their order up to the State Tax Commission for approval or disapproval. That was done, and the State Tax Commission entered the following order, which they certified back to the board of supervisors as required by the statute:
"The order of the Board of Supervisors, on the reverse side hereof, reducing or changing an assessment, is on Mar. 26, 1941, by the undersigned, hereby Disapproved.
"The State Tax Commission "By M.C. Young, "Vice Chairman
"Filed Mar. 12, 1941 "The State Tax Commission "By A.S. Coody, "Secretary"
The board of supervisors entered no further order in the matter. However, they were proceeding to levy taxes for the years involved on the assessment as originally approved and not on the reduced assessment disapproved by the Tax Commission; in other words, treating the action of the State Tax Commission as final. Thereupon appellant filed his bill to enjoin the levy. The cause was heard on bill, exhibits, answer, demurrer and evidence, resulting in a decree in favor of the board of supervisors.
Sections 62 and 3179, Code of 1930, give any taxpayer aggrieved at the action of the board of supervisors in fixing the value of his land for taxation, the right of appeal to the circuit court. There is no merit in the argument that there was no adverse order of the board of supervisors from which Stuart could appeal, as provided by the statute. What occurred between the board of supervisors and the Tax Commission amounted to nothing less than a refusal by the former to grant the relief asked. That judgment was final. In other words, the board of supervisors said to Stuart, by its order, the relief is granted provided the Tax Commission concurs, if the Tax Commission refuses to agree it is denied. The Tax Commission refused and certified its judgment so doing to the board of supervisors, as required by the statute. The order of the board of supervisors was conditional and the condition was not complied with. It necessarily followed that the order was revoked. Furthermore, Stuart began the proceeding before the board of supervisors. The proceeding, therefore, was not against him but by him. He was affected with notice that the action of the board was not final but subject to approval by the Tax Commission. He was, therefore, due to keep watch on the proceedings of the board of supervisors in order to ascertain when the judgment of the Tax Commission should be certified back, thereby making the order of the board one of denial instead of a grant of relief. If Stuart had any doubt about whether the order of the board was final from which he had the right to appeal to the circuit court, he was due to ask the board to make it final, and if the board had refused to act certainly it would have amounted to a denial of his claim of overvaluation.
The taxpayer's remedy is by appeal to the circuit court, which is exclusive. In Madison County v. State Highway Commission, 191 Miss. 192, 198 So. 284, 287, the court said: "Moreover, the almost universal test of the jurisdiction of a court of equity to issue injunctions is the absence of a legal or other remedy by which the complaining party might obtain the full relief to which the facts and circumstances may warrant." See Coulson v. Harris, 43 Miss. 728; McDonald v. Murphree, 45 Miss. 705; Anderson v. Ingersoll, 62 Miss. 73; Board of Supervisors of Noxubee County v. Ames (Miss.), 3 So. 37; Purvis v. Robinson, 110 Miss. 64, 69 So. 673.
The only authority of the chancery court to enjoin the collection of taxes is Section 420 of the Code of 1930. That section provides that the chancery court shall have jurisdiction of suits by one or more taxpayers to restrain the collection of any taxes levied or attempted to be collected " without authority of law." (Emphasis ours.) Where the action of the board is on a subject matter over which it had no jurisdiction, the chancery court has jurisdiction under Section 420. If the converse exists, as in the present case, the remedy by appeal is exclusive. Those principles were emphasized in Purvis v. Robinson, supra.
It is argued that Stuart was entitled to resort to a court of chancery because he had been denied due process before the State Tax Commission, such denial consisting in the failure of the Tax Commission statute to provide for a time and notice to the taxpayer of the hearing by it. It is true that the statute contains no such provision. Nevertheless, under the law there was no denial of due process. Due process in proceedings before boards and commissions is applied with more liberality in favor of the public than it is in private litigation. 12 Am. Jur. 307, sec. 612; Bourjois v. Chapman, 301 U.S. 183, 57 S.Ct. 691, 81 L.Ed. 1027; Lehigh Valley R.R. Co. v. Board of Public Utility Commissioners, 278 U.S. 24, 49 S.Ct. 69, 73 L.Ed. 161, 62 A.L.R. 805; Wadley Southern R. Co. v. Georgia, 235 U.S. 651, 35 S.Ct. 214, 59 L.Ed. 405.
In the Bourjois case, a statute of the state of Maine prohibited the sale and use in the state of cosmetic preparations unless registered with the State Board of Health and certain fees paid. It provided for no hearing by persons and corporations seeking to sell such preparations in the state; however, they were given a remedy in the courts after the Board of Health had acted, in which the protection of their rights was fully provided for.
In the Lehigh Valley Railroad case, a New Jersey statute authorized the State Public Service Commission to require the railroads of the state to eliminate certain highway grade crossings. The expense of doing so was large. The statute made no provision for a hearing by the railroad companies before the Public Service Commission. The whole matter though, under the laws of the state, could be reviewed on certiorari. The Supreme Court held that the fact that no hearing was provided for before the Public Service Commission was not a denial of due process.
In the Wadley case, the Georgia statute authorized the imposition upon a railroad company of a penalty of $5,000 per day for violating an administrative order of the State Railroad Commission. The Supreme Court held that it did not deny the railroad due process because under another statute of the state the railroad company had a right to a judicial review of the validity of the order.
In Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872, the decision was to the same effect.
In the Wheatley case, State ex rel. v. Wheatley, 113 Miss. 555, 74 So. 427, one of the questions involved was whether a taxpayer, the valuation of whose land had been increased by the Tax Commission at its equalization meeting, was denied due process because the Tax Commission statute provided for no notice or hearing before it. The court held there was no denial of due process because under Section 81, Code of 1906, he was authorized to appeal to the circuit court from the order of the board of supervisors approved by the Tax Commission at its equalization meeting. The court held one opportunity for a hearing was enough.
Stuart had three opportunities for a full hearing, one, when the tax rolls came back from the equalization meeting of the Tax Commission; two, under Sections 3191 and 3194 of the Code; three, on appeal from adverse decision of either of those meetings of the board to the circuit court.
DISSENTING OPINION.
I also am of the opinion that the decree of the court below should be affirmed, but my reason therefor is somewhat different from that of Judge ANDERSON. In order that my position may clearly appear, I will partially restate the case.
In 1940 the appellant's land in Scott County was assessed for taxation in the manner provided by law. His bill of complaint alleges that the value placed on his land, when the assessment roll was finally approved by the board of supervisors, is too high; that he is without adequate relief at law; and prays that the assessment be reduced to the true value of the land, and that the board of supervisors be commanded to enter said reduction and be restrained from levying a tax on the complainant's land until this is done; in other words, that the court reassess the land at its true value. The case was heard on bill, answer, and proof, and the bill was dismissed.
It appears from the bill of complaint, and the evidence in support thereof, that sometime after the approval of the assessment roll, the appellant, acting under Sections 3191, 3192, and 3194, Code of 1930, requested the board of supervisors to reduce the assessed value of his land. The board attempted to do so by an order to that effect on its minutes, but the State Tax Commission declined to approve the order. No claim appears in the bill of complaint nor in the evidence in support thereof, but this order of the board of supervisors reducing the assessed value on this land is still in force. Nor does such a claim appear in the original brief of counsel for the appellant. That question was raised by this court, as it had the right to do, and then submitted to counsel for argument. What the court now holds is that the order of the State Tax Commission declining to approve this order of the board of supervisors is void, leaving that order in full force and effect, resulting in the assessed value of the land now being that fixed on this order of the board of supervisors.
The order of the Tax Commission refusing to approve the order of the board of supervisors reducing the assessed value on this land was made in full compliance with the provision therefor in Section 3194 of the Code, and, therefore, under all of the authorities of which I am aware, is valid, unless the provision that a reduction in the assessed value of land made by a board of supervisors becomes effective when, but not unless, it is approved by the State Tax Commission, violates either the state or federal constitution. The refusal of the State Tax Commission to approve this reduction in the assessment of the appellant's land is said by my associate to be void for the reason that when it was made the commission had no evidence before it bearing thereon. This is but another way of saying that this refusal of the Tax Commission was made in violation of the due-process-of-law requirements of the state and federal constitutions — that the provision of Section 3194 of the Code permitting the Tax Commission to do what it here did, violates the requirements of due process. To that question I now come.
Section 112 of our State Constitution requires that property "be taxed in proportion to its value," and that it "be assessed for taxes under general laws, and by uniform rules, according to its true value." This is the constitutional, and therefore exclusive, method for ascertaining the value of property for taxation. In obedience to this section of the Constitution, the legislature enacted Chapter 61 of the Code, making it apply to all property and providing therein uniform rules for determining the true value thereof for taxation. The appellant's property was assessed for taxation strictly in accordance with the provisions of this chapter of the Code, the final act in which was the approval of the assessment roll for the year 1940
The appellant, in the language of his counsel's brief, "does not complain here of any irregularity of the statutory method by which the authorities made up and completed the land rolls for 1940 and 1941. The various notices were given, and the orders were in the usual form:" to which may be added he did not appear before the board of supervisors pursuant to any of the notices for the consideration of the assessment, and made no sort of objection thereto, until long after the assessment roll had been finally approved. When property has been assessed in accordance with the statutory method therefor, the value placed thereon by the assessing authorities is conclusive on both the public and the owner of the land. Adams v. Clarke, 80 Miss. 134, 31 So. 216; Miller v. Citizens' National Bank, 144 Miss. 533, 110 So. 439; Sections 3172 and 3178 of the Code of 1930, except in a proceeding before the board of supervisors under Sections 3191, 3192, and 3194 of the Code.
The legislature having provided taxpayers with a plain and adequate procedure, meeting all of the requirements of due process, for preventing their lands from being overvalued for taxation when the assessment roll is being made up and approved, was under no duty, constitutionally or otherwise, to provide taxpayers who neglected to avail themselves thereof with another and later procedure for that purpose; and the above sections of the Code, in so far as they provide for the reduction of the assessed value of land after the approval of the assessment roll, are purely gratuitous and can be repealed by the legislature without violating any constitutional right of taxpayers, from which it follows that the legislature had the right, when enacting these sections of the code, to require the reduction in the assessed value of the land to be made in such manner and on such terms as it wished to prescribe. Consequently, no constitutional right of taxpayers was violated by not requiring the Tax Commission to act on evidence when determining whether it would approve or disapprove a reduction in the assessed value of land made by a board of supervisors.
But if I am mistaken as to this, and due process of law does require the Tax Commission to act here only on evidence, and, therefore, the provision to the contrary in Section 3194 is void, then that section, as well as Sections 3191, 3192, is void in toto, and the entire legislative plan outlined therein must fail. The order of the board of supervisors reducing the assessed value of land and its approval vel non by the Tax Commission are both essential to the consummation of the legislative purpose to permit the assessed value of land to be reduced only when both the board of supervisors and the State Tax Commission concur in so doing, and nothing in the sections, or their legislative history, indicate that the legislature would have enacted either of these essential elements without the other. Their legislative history demonstrates the contrary.
The sections of the Code of 1930 here under consideration formerly appeared as Section 4312, Code of 1906. Some years after the adoption of that Code, the State Tax Commission was created and given supervisory power over the assessment of property for taxation by boards of supervisors, and this court held in Board of Supervisors v. Laurel Mill, 130 Miss. 454, 94 So. 448, that the State Tax Commission had been given no supervisory power over reduction in the assessment of property made by the board of supervisors under Section 4312, Code of 1906. When the Code of 1930 was thereafter adopted, the legislature declined to re-enact Section 4312 as it appeared in the Code of 1906 and cured this defect in the legislative plan for giving the Tax Commission full supervision of the assessment of property for taxation by expressly providing that reductions in the assessed value of property could be made by boards of supervisors with, and only with, the approval of the State Tax Commission.