Opinion
No. 31186.
April 30, 1934.
1. TAXATION.
Circuit court held without jurisdiction of appeal taken by taxpayer from order of board of supervisors overruling protest against assessment, where, at time of taking appeal, state tax commission had not acted on assessment.
2. TAXATION.
Parties representing county on taxpayer's appeal from order overruling protest against assessment could not waive jurisdictional requirement of final order as basis for appeal.
3. COUNTIES.
County is only bound by acts of its officers within scope of their powers and duties.
4. TAXATION. Boat owned by Tennessee corporation registered for navigation in Louisiana, but located in Mississippi, where corporation did all its business, aside from operating ferry across river to Louisiana, held taxable under evidence in Mississippi.
Evidence disclosed that the corporation's entire office force and business were located in the state of Mississippi, and that it had other boats which were not assessed there. The principal business of the corporation was operating a ferry between Vicksburg, Mississippi, and Delta Point, Louisiana, but it also ran some excursions up and down the river, starting from and returning to the Mississippi side.
5. TAXATION.
Taxpayer which failed to appeal from order of board of supervisors after assessment became final held bound by judgment of assessment, though taxes were paid under protest.
6. TAXATION.
Property situated partly in one state and partly in another may be taxed in more than one jurisdiction.
ON SUGGESTION OF ERROR. (Division B. June 11, 1934.) [155 So. 349. No. 31186.]1. APPEAL AND ERROR.
Supreme Court would not consider on suggestion of error point expressly withheld by agreement of parties on original submission, and which agreement had been observed by court in arriving at its original opinion.
2. APPEAL AND ERROR.
Supreme Court which under stipulation only decided that appellant's property was taxable within state would not on suggestion of error consider alleged lack of jurisdiction of county to assess taxes, since such question went to merits of what judgment of circuit court should be, and did not go to jurisdiction of circuit or Supreme Court.
APPEAL from the Circuit Court of Warren County.
Wm. I. McKay and Leonard E. Nelson, both of Vicksburg, for appellant.
The record conclusively shows that appellee's attempted appeal from the assessment for the year 1928 was premature, taken September 5, 1928, from a merely interlocutory order, long before the final approval of the roll and assessment by the state tax commission and board of supervisors of appellant in November, 1928. Under the decisions of this court, the attempted appeal was void, and the judgment rendered thereon void also.
Moller-Vandenboom v. Board of Sup'rs., 135 Miss. 249, 99 So. 823; Wilkinson County v. Foster Lbr. Co., 135 Miss. 616, 100 So. 2; State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Marathon Lbr. Co. v. State, 139 Miss. 125; Edward Hines Yellow Pine Trustees v. State, 146 Miss. 101, 112 So. 12.
Appellee pleads the conclusion of law that the appellant waived the want of jurisdiction of the attempted appeal in the circuit court. No proof whatever of any vain attempt at such a waiver was offered by the appellee, or otherwise appears of record. All the law is the other way.
3 C.J. 369-370; Switzer v. Benny, 94 Miss. 209; Kelley v. Ladies Aid Society, 140 Miss. 580, 106 So. 627; James v. Williams Furniture Co., 161 Miss. 358; Moller-Vandenboom v. Attala County, 135 Miss. 249, 99 So. 823.
In such a proceeding, it is necessary to its maintenance to show that the taxes sought to be refunded were paid under protest and involuntarily.
Schmitter v. Sunflower County, 156 Miss. 227, 126 So. 39.
The only protest attempted in the case at bar consisted only of writing on the checks given in payment of the taxes the words, "Paid under Protest." No ground or reason was hinted at as the basis of the protest; and no defect in the assessment was even suggested. Such a general protest was legally insufficient, in legal effect, no protest at all.
Pearl River County v. Lacy Lbr. Co., 124 Miss. 85; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 279; Schmitter v. Sunflower County, 156 Miss. 227, 125 So. 534; Ann. Cas. 1913d 568.
Appellee was doing business in this state.
14a C.J. 1273; Peterman Const. Co. v. Blumenfeld, 125 So. 548; Sprout v. South Bend, 277 U.S. 163, 72 L.Ed. 833, 48 Sup. Ct. Rep. 502, 62 A.L.R. 45; 12a C.J. 1284; City of Vicksburg v. Streckfus Steamers, 150 So. 215.
Taxpayers failing to appeal from an order of the board of supervisors approving an assessment are concluded thereby.
Investment Co. v. Suddoth, 70 Miss. 416; Rev. Agt. v. Clarke, 80 Miss. 134; Rev. Agt. v. Bank, 108 Miss. 346; Adams v. City of Clarksdale, 95 Miss. 88; North v. Culpepper, 97 Miss. 730; Reed v. Lbr. Co., 149 Miss. 395; Pearl River County v. Lacy Lbr. Co., 124 Miss. 104.
Kennedy Geisenberger, of Natchez, for appellee.
Appellee has confused the rule of law applying to premature appeals from interlocutory orders with the rule applying to appeals that are absolutely void because of inherent lack of jurisdiction of either the inferior or appellate court. Under the latter there is no life whatsoever in the appeal, but in the former the appeal, though erroneous, is not a nullity and is not subject to collateral attack.
Sherman v. Sherman, 139 Mich. 180, 102 N.W. 630; 3 C.J., Appeal and Error, sec. 1363.
When payment of the taxes was made, the rights and privileges of the taxpayer granted him under section 8270, Hemingway's Code of 1927, section 3276, Code of 1930, were ingrafted thereon. And neither of said sections require payment to be made under protest, but specifically provide that protest shall not be necessary.
The language of the statute is as positive and comprehensive as any that could be employed to manifest the intention of the Legislature to make it mandatory upon the county board of supervisors to issue a proper warrant covering refund to the taxpayer.
Sufficient protest was made by appellee in the payment of its taxes, when it noted upon its check that it was tendered under protest.
Ayer Lord Tie Co. v. Commonwealth of Kentucky, 202 U.S. 409, 26 Sup. Ct. Rep., 679.
The assessment was void for the further reason that the tax assessor of Warren county was without jurisdiction or authority to make the assessment.
Powder River Cattle Co. v. Board of Commissioners of Custer County, 45 Fed. 323.
Admitting solely for the purpose of argument that appellee's ferry boat was subject to assessment for taxation in the state of Mississippi, we contend that the state tax commission and not the tax assessor of Warren county had power to make the assessment.
Chapter 138, Laws of 1918; Section 9368, Hemingway's Code of 1927; Section 3200, Code of 1930.
The proof in the court below showed without conflict that the Mississippi River Ferry Company is and was a service corporation, operating (its ferry boats) as public utilities.
Mayor and Board of Aldermen of Vidalia v. McNeely, McNeely v. Mayor and Board of Aldermen of Vidalia, 47 Sup. Ct. Rep. 758, 71 L.Ed. 1292.
The case of Helena-Glendale Ferry Co. v. State, 101 Miss. 65, 57 So. 362, Ann. Cas. 1914D 682, denies the right of the state of Mississippi to levy a privilege tax on the operation of a ferry where the company owning it is exclusively engaged in ferrying passengers across the Mississippi River between Helena, Arkansas, and Glendale, Mississippi, and is practically on all-fours with the case at bar.
The action brought by appellee for the recovery of taxes is not one growing out of any contract made in pursuit of "business done in Mississippi," and therefore falls beyond the prohibition of the statute.
Quartette Music Co. v. Heygood, 108 Miss. 75, 67 So. 211; Item v. Ship, 106 So. 437.
The tax commission had the sole and exclusive authority, if any existed, to make the assessment here complained of.
Section 3200, Code of 1930; Section 9368, Hemingway's Code of 1927; Teche Lines v. Board of Supervisors of Forest County, 143 So. 486; City of Hattiesburg v. New Orleans, 106 So. 749; Laws of 1932, chapter 291; Section 3204, Code of 1930; Section 9371, Hemingway's Code of 1927; Section 3208, Code of 1930; Section 9376, Hemingway's Code of 1927; Section 3209, Code of 1930; Section 9370, Hemingway's Code of 1927; Gully, State Tax Collector, v. Eastman-Gardiner Lbr. Co., 151 So. 170.
The inescapable conclusion of section 3200 et seq., of the Code of 1930, and the constructions placed thereon by this court is, that all public utilities are assessable by the state tax commission with the limitation, however, that electric light and power companies situated wholly in one county are assessed by the county authorities. This limitation applies only to electric power and light companies.
Gully v. Eastman-Gardiner Lbr. Co., 151 So. 170.
The Mississippi River Ferry Company, at the time of the assessment, was a public utility.
Teche Lines v. Board of Supervisors, 143 So. 486; 51 C.J., page 4, et seq.
A ferry engaged in the transportation of freight and passengers across the Mississippi River for hire has repeatedly been held to be a public utility by the Supreme Court of the United States.
Town of Vidalia v. McNeely, 274 U.S. 676, 47 Sup. Ct. Rep. 758; Chapter 113, Code of 1930; 25 C.J., page 1074.
The question here is the situs of the boat, George W. Miller, for purposes of taxation. If the boat has a situs of its own in Mississippi, it is subject to taxation, regardless of the domicile of its owner or that it is engaged in interstate commerce. If the boat has no situs in Mississippi, then it is not any more subject to taxation than the property of Henry Ford, and the board of supervisors was without jurisdiction.
26 R.C.L. 151.
There is no contention that the boat is not assessable in Mississippi because of being engaged in interstate commerce, but on the contrary the contention is that it is not assessable in Mississippi because it has no situs in Mississippi or elsewhere separate from the domicile of its owner.
Ayer Lord Tie Co. v. Kentucky, 202 U.S. 409, 26 Sup. Ct. Rep. 679; Hayes v. Pacific Mail Steamship Co., 15 L.Ed. 254; St. Louis v. Wiggins Ferry Co., 20 L.Ed. 192; Old Dominion Steamship Co. v. Virginia, 49 L.Ed. 1059; North American Dredge Co. v. Taylor, 29 L.R.A. (N.S.) 105.
The Mississippi River Ferry Company is incorporated under the laws of the state of Tennessee; its address being room 600, Bank of Commerce building, Memphis, Tennessee. It has offices in Vicksburg, Mississippi, however, and does its business between Vicksburg and the state of Louisiana, and also between different points wholly within this state. It had never paid any taxes either in Louisiana or Tennessee. The boat was registered for navigation purposes at Baton Rouge, Louisiana, but it had never been there, and engaged in no business at that point. The principal business of the corporation was operating a ferry between Vicksburg, Mississippi, and Delta Point, Louisiana. However, it ran some excursions up and down the river, from one point in Mississippi, returning to that point, the passengers remaining on the boat all the while. Its officers and its general business transactions were in Vicksburg, Mississippi. There was an annual stockholders' meeting in Tennessee, but no other business transactions were had in that state.
The Mississippi River Ferry Company owned, at all times, two boats, and part of the time three boats, which were used in its business.
The proof shows that, when the boats were not being used, they were kept on the Louisiana side of the canal in front of Vicksburg, by the city requirements, to prevent an undue accumulation of vessels in front of the city.
In 1928 the tax assessor of Warren county assessed one of the boats owned by the appellee, the George W. Miller, for state and county taxes. The appellee protested this assessment before the board of supervisors at its August, 1928, meeting, but such protest was overruled, and an appeal was taken from this order overruling the protest to the circuit court, and was there undisposed of until 1932, when the circuit court entertained jurisdiction, and reversed the judgment of the board of supervisors.
In the meantime, the Mississippi River Ferry Company paid the taxes under the assessment, as required by law, pending appeal, claiming that such taxes were paid under protest, but the evidence of such protest does not appear in the record in writing. It seems from the argument that the taxes of 1928 were paid under protest under the general term "paid under protest," but this was not in the record, and is not shown on the tax receipt introduced in evidence.
After the rendition of the judgment of the circuit court, the Mississippi River Ferry Company, appellee here, presented an application to the state auditor and the attorney-general for a refund of the taxes so paid, which was approved by those officers. Thereupon the appellee filed an application with the board of supervisors of Warren county for a refund of the taxes so paid, which the board of supervisors refused to allow. Upon that refusal, suit was instituted in the circuit court to recover the taxes paid for 1928, 1929, and 1930. The circuit court rendered judgment for the amount of the taxes, with interest, from which this appeal is prosecuted.
The appeal was taken prior to the order of the state tax commission acting upon the assessment made by the board of supervisors of Warren county. We held in the case of Moller-Vandenboom Lumber Co. v. Board of Supervisors of Attala County, 135 Miss. 249, 99 So. 823, that such an appeal could not be taken until there was a final order entered on the minutes of the board of supervisors approving the assessment; that all statutes were to be construed together upon the same subject, and, so construing, an appeal was not authorized in that case, and the appeal was dismissed upon a motion being made to dismiss upon that ground.
The same was held in the case of Wilkinson County v. Foster Creek Lumber Mfg. Co., 135 Miss. 616, 100 So. 2; State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Marathon Lumber Co. v. State, 139 Miss. 125, 103 So. 798, and was approved in Edward Hines Yellow Pine Trustees v. State, 146 Miss. 101, 112 So. 12. In Madison County v. Frazier, 78 Miss. 880, 29 So. 765, it was held that an appeal could not be taken from an order of assessing taxes until final judgment was entered.
Therefore the circuit court had no jurisdiction, on appeal, to try this case and reverse the order of the board of supervisors made at the August, 1928, meeting, having no authority to entertain such an appeal, and it was not competent for the parties representing the county to either consent or to waive the question. The county is only bound by the acts of its officers within the scope of their powers and duties.
The assessment made in 1928 still stands as a judgment and conclusive upon the parties.
It is contended here that the state is without power to tax vessels registered for navigation in Louisiana, and belonging to a Tennessee corporation, and that they were engaged in interstate commerce, and could not be taxed because it would be a burden upon interstate commerce.
The assessment here involved does not undertake to assess interstate commerce. The assessment is upon physical property engaged partly in interstate and partly in intrastate commerce. We think the board of supervisors was warranted in holding that the boat was situated in Mississippi. The entire business of the company, as reflected in its situs, was in Vicksburg, Mississippi. The vessels were partly in Mississippi and partly in Louisiana; but the entire office force, business, etc., was located in the state of Mississippi. The company also had other boats which were not assessed, and it could not be contended that a fair portion of the property of the appellee was not assessable in Mississippi. The board of supervisors had the power, and was under the duty, to determine which property was situated in Mississippi, and all the facts warrant the finding that the company was domiciled, for business purposes, in Mississippi, and did no business outside of operating the ferry between Vicksburg, Mississippi, and Delta Point, Louisiana, except entirely in the state of Mississippi, and was taxable here.
It was the duty of the company to appeal from the order of the board of supervisors when the assessment became final, if appeal was desired, and, not having done so, it was bound by that judgment. This being true, it is unnecessary to decide the other questions presented by this record. The assessment being a valid assessment, it is immaterial whether the taxes were paid under protest or not, because, even if paid under protest, the judgment of assessment bound the appellee.
Property situated partly in one state and partly in another may be taxed in more than one jurisdiction. See cases in volume 8, United States Digest (L.C.P. Co. Ed.) title "Taxes," section 171. See, also, State v. Gulf, M. N.R. Co., 138 Miss. 70, 104 So. 689.
There being no appeal from the original assessment, and the company, appellee here, being bound by that assessment, the judgment of the circuit court directing a refund of the taxes was erroneous. The court should have dismissed the suit.
The judgment will be reversed, and the suit dismissed.
Reversed and dismissed.
ON SUGGESTION OF ERROR.
As appears from the original opinion herein, the county assessing authorities of appellant county assessed one of the steamboats of appellee for ad valorem taxes for the years 1928, 1929, and 1930. Appellee attempted to appeal from the assessment, but the appeal having been prematurely taken was abortive and ineffectual. In the meantime, appellee paid the taxes under protest, and later filed this present and independent suit in the circuit court to recover the money as in an ordinary action for money had and received. In the trial of the case now before us it was agreed between counsel that the principal issue for determination was whether the property was taxable in this state, and that no question would be raised or urged as to whether, if assessable, the county assessing authorities should assess or whether the assessment should be made by the state tax commission. During our consideration of the case, we were especially reminded of this agreement by a formal communication from counsel for appellee, and, agreeably thereto, we did not enter upon further consideration of the question waived by agreement of counsel, as aforesaid.
Nevertheless, since our decision adverse to appellee on the principal question and that the property was subject to taxation in this state, counsel for appellee has filed a suggestion of error, and seek now to recur to the point, and for the first time to argue out the same before us, that the county assessing authorities were without jurisdiction to make the assessment, and that under section 3200, Code 1930, the jurisdiction is vested solely in the state tax commission; and counsel justify this course on the argument that a jurisdictional question may not be agreed upon nor waived by the parties and may be raised at any time and at any place regardless of any agreement or previous request.
In Eady v. State, 153 Miss. 696, 122 So. 199, 200, we said: "It is rarely the case that this court will notice, on a suggestion of error, a new contention, one not assigned or argued on the submission of the case. As a general rule it is no more permissible on appeal to present a case in halves or by piece-meal than it would be on the original trial" — citing many previous cases. For the stronger reasons, we would not consider on a suggestion of error a point expressly withheld by agreement of the parties on the original submission, and which agreement had been observed by the court in arriving at its original opinion. The present suggestion of error is not saved from the stated rule by the argument that a jurisdictional question is involved, for there is involved no jurisdictional question so far as concerns the rule as to when and how jurisdictional questions may be raised. The circuit court had full and undoubted jurisdiction of this case; and the particular jurisdictional question, namely, whether the county assessing authorities had jurisdiction to make the assessment, was a question which went not to the jurisdiction of the circuit court, but to the merits of what the judgment of the circuit court should be. If an appeal from the assessment made by the county assessing authorities had been taken to the circuit court, and from the circuit court to this court, then, if the county assessing authorities had no jurisdiction, it might well be argued that the only jurisdiction that the circuit court or this court would have would be to adjudge and declare the want of jurisdiction; but this is no such appeal. This case is upon an ordinary circuit court declaration for a money judgment, and we must repeat that the question whether the county assessing authorities had jurisdiction to make the assessment under which the money was paid by appellee and which is sought to be recovered back is one going to the merits of the instant case, and not to the jurisdiction either of the circuit court or of this court.
Overruled.