Illinois Cent. R. Co. v. Miller

Ethridge, J., delivered the opinion of the court. (After stating the facts as above.) The appellant assigns numerous errors in the holding of the court below, among which are: That the court erred in sustaining the *244 motion of the revenue agent that the order of the state tax commission be canceled, annulled, set aside, and held for naught; that the court erred in requiring the clerk to certify to the tax commission its finding and opinion; that the court erred in awarding’ costs against appellant in the circuit court; that the court erred in holding that the state revenue agent had brought to the attention of the tax commission any property belonging to -appellant which had escaped taxation for the years 1917,■ 1921, and 1922, the court below having found that during the years 1918,1919, and 1920 such line of railroad was operated by the Director General of Eailroads, and that the railroad company was not assessable for tax during such years on that account; that the 'court erred in holding that the assessment by the tax commission, made for the years 192.1 and 1922, was not res ad judicata, and for making a like holding for the year 1917, as to the assessment by the Bailroad Commission, which, at that time, was state assessor of railroads; that the court erred in not holding that the notice given by the state revenue agent and the tax commission was void for uncertainty of the description of the property. Section 112 of the Constitution of 1890 reads as follows : “Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. The legislature may, however, impose a tax per capita upon such domestic animals as from their nature and habits are destructive of other property. Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value. But the legislature may provide for a special mode of valuation and assessment for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county. But all such property shall be assessed at its true value, and no county shall be denied the right to levy county and special taxes upon such *245 assessment as in other cases of property situated and assessed in the county.” This section authorizes the legislature to provide for a special mode for the valuation and assessment of railroad and other similar property. In pursuance of this power, the legislature has enacted a special scheme for assessing- railroads, which for the year 1917 was done under section'7021, Hemingway’s Code (chapter 247, Laws of 1914, amending section 4382, Code of 1906). By section 7023 of Hemingway’s Code (section 4384, Code of 1906), the state Railroad Commission was made state railroad assessors, and, these sections being in force at the time the assessment of 1917 was made, constitute the law applicable to that assessment. In 1918', the legislature by chapter 138, Laws of 1918 (section 7769Í, Hemingway’s Supplement 1921), constituted the state tax commission, state assessors of railroads, and other public service corporations. By section 7769m, Hemingway’s Supplement 1921 (chapter 138, Laws of 1918, section 2), the scedule was provided to be made for the state assessing board by the railroad upon which the assessment of railroad property was to be made. These last sections are substantially the same as the {Laws of 1914 (Hemingway’s Code), supra. The differences between the law applicable to 191.7 and the other years involved do not materially affect the decision of the case. Section 77691, Hemingway’s Supplement 1921, reads as follows: “The members of the state tax commission are constituted state assessors of railroads and other public service corporations, and they shall, upon the receipt or making of the schedules hereinafter provided for, assess the property of railroad, telegraph, telephone, sleeping car, express company and other public service corporations liable to taxation in the state, affixing its true value so that such property shall bear its just proportion of taxation, talcing into consideration the value of the franchise, the capital stock engaged in the busi *246 ness in this state; and the state assessors of railroads and other public service corporations may adopt other and further rules necessary and proper to ascertain the value of property to be assessed by them, including' the amount of capital engaged in the business in this state. ’ ’ Section 7769m, Hemingway’s Supplement of 1921, reads as follow's: “Each railroad company owning and operating a railroad, shall, on or before the first Monday in April, in each year, file with the state tax commission, a completo schedule, under oath, of all its property, real or personal, .taxable and nontaxable, setting forth therein the length in miles or fractions thereof, of its entire roadbed, switches and side tracks, and showing how many miles or fractions thereof lie in this state, and each county of the state, and in each city, town, village, levee district, road district, and in each separate or consolidated school district, and where a separate school district is composed in part of the corporate limits of a city, town or village, and in part of separate, adjacent annexed territory, then in that event, what part of its roadbed, switches and side tracks lie in such separate, adjacent annexed territory so constituting a part of such separate school district, and the value of the whole and each part thereof, as subdivided herein; the total amount of capital stock, its par value and its actual value, and the value of its franchise, the number of engines and their respective values; the gross amount of receipts in the year pre ceding; the number of cars of all kinds, their class and value; the number of depot buildings and warehouses and other buildings; in what county, and city, town, village, levee district, road district or separate or consolidated school district, and the value of each, including' the lands and lots upon which the same are built; the value of all machinery and car shops and stationary machinery and tools therein, and in what county and city, town, village, separate or consolidated school district, road district, or levee district located, including the lands *247 upon which the same are built; all real, personal or mixed property belonging to the company within the state, not enumerated, with its value; the number of bridges and ferries, in this state, in what county and city, town, village, separate or consolidated school district, road district, or levee district located and the value of each, and specifying whether such value is or is not included in the value of the road bed; a list of all lands in this state owned, describing the same and giving the location and value thereof, the quantity of land used for depots and machine shops, and its value aside from the buildings thereon; the gross amount of receipts the year preceding from passengers and freight separately, and the proportion thereof earned within and from this state, and if any of said property is claimed to be exempt from, taxation, it shall be separately stated and the law cited under which the claim is made.” It will be seen from these sections that the state tax commission, in the years in which it assessed and the state railroad commission as state assessor, in 1917, were required to take into consideration the value of the franchise and capital stock engaged in business in the state, and the amount of capital engaged in business in the state. It will be further seen from the reading of these sections that the railroad is required to render a complete statement of all its property, real or personal, taxable and nontaxable, and the value of the latter and of each part thereof, the total amount of its capital stock, its par value and its actual value and the value of its franchise, the gross amounts of receipts for the preceding year, and the various amounts and kinds, and the value of its other physical property. The state also provides for notice of hearing of said assessments and the objections thereto. Section 73, Hemingway’s Code, reads as follows: “Like proceedings as provided in the last section [section 72 which see] may be liad to review the judgments of all tribunals inferior to the circuit court, wheth *248 er an appeal be provided by law from the judgment sought to be reviewed or not.” In Gulf & Ship Island Railroad Co. v. Adams, State Revenue Agent, and Yazoo & Mississippi Valley Railroad Co. v. Adams, State Revenue Agent, 85 Miss. 772, 38 So. 348, it was held that the Railroad Commission is an inferior tribunal within the meaning of these sections, and certiorari may be had to review the tribunals inferior to the circuit court; that certiorari lies -to correct mistaken findings of fact by the Railroad Commission, induced by error of law apparent on the record, the finding of a fact contrary to law, or the making of an order beyond its power. It was also held in that opinion that,-, where the railroad assessors have assessed railroads for ad valorem taxes pursuant to the laws then in force,' making it their duty to take the value of their franchises into consideration, and where the taxes have been paid, the assessment is conclusive in the absence of fraud. In the course of the opinion in that case, the court said: “ Appellee undertakes to escape the force of this reasoning" by contending’ that the franchise here sought to be taxed is property; that a privilege tax is ultimately a tax upon the use of the property, and is, in effect, a tax upon the property. We do not concur in this, but hold that the tax: sought to be collected is a privilege tax proper. But, if appellee’s contention in this regard were correct, and the tax sought to be collected were indeed essentially a property tax, still the commission would beestopped now to back-assess this franchise for a property tax. It is a matter of which this court will take judicial notice that these railroads were assessed for ad valorem taxation, for the years 1898 to 1903, agreeable to provisions of Code 1892, section 3877, and that they have paid .the taxes assessed against them. It 'was by the statute made the duty of the railroad assessors, in fixing the assessments of the said railroads, to take into consideration the value of the franchise; and by the franchise, in this connection, we understand the right of *249 the railroad companies to operate their railroads in the manner, on the conditions, and with the powers prescribed and granted in their several charters. They are conclusively presumed to have taken the value of the franchise into consideration in fixing’ the assessment of these railroads for the years in question, and this cannot now be questioned in any tribunal. It is res adjudicata. It has been expressly adjudicated by this court that, as to all other matters (than exemptions) in the assessment and valuation of the property of railroads, the judgment of the railroad assessor is conclusive. Railroad Company v. Adams, 81 Miss. 105, 32 So. 937. See, also, especially, Railroad Company v. Adams, 77 Miss. at p. 778, 25 So. 355, and note authorities there quoted. But, of course, this doctrine is not to be extended to assessments procured to be made by fraud nor to assessments made in conscious and deliberate defiance of law. As to all such, whether the property withheld from or escaping assessment be franchise or other property, we adhere to and reaffirm the wholesome doctrine announced in Revenue Agent v. Clarke, 80 Miss. 134, 31 So. 216. The franchise of these railroads having been assessed for ad valorem taxation (and for this, in the absence of fraud and the like, as indicated, we have a conclusive presumption of law), it is not now in the power of the railroad assessors to single out some constituent element' of their franchise, or some mere incident thereto, and impose an ad valorem or property tax upon it. This would be double taxation and violative of the constitutional provision that taxation shall be equal and uniform.” In Adams v. Clarksdale, 95 Miss. 88, 48 So. 242, the court was called upon to deal with a suit brought by the state revenue agent against the city of Clarksdale and the city tax collector of that city. The board of mayor and aldermen at its March session approved an assessment made by the city authorities. In May, the board of mayór and aldermen undertook to cancel the assessment made in March and to make a new assessment. *250 This court held, under section 4296; Code of 1906, that, where an assessment roll had been properly approved, the taxpayer is precluded from questioning* its validity afterwards, and the effect of the approval is to render it final against taxpayer, unless subject to be reopened under section 4312, Code of 1906, and that said judgment rendered approving an assessment is more open to further action than is that of any' other tribunal. To the same effect, the court held in North v. Culpepper, 97 Miss. 730; 53 So. 419; Miller v. Copeland, 104 So. 176; Adams v. Luce, 87 Miss. 220; 39 So. 418. In Western Union Telegraph Co. v. Kennedy et al., 110 Miss. 73, 69 So. 674, the court held that certiorari was the proper remedy available to the taxpayer to review an assessment made by the state Railroad Commission (then acting as state assessor), and that such assessment was binding upon the person assessed as to ownership of property, unless he availed himself of the remedy provided by certiorari under section 73 of Hemingway’s Code, supra, and that an injunction would not lie under section 533, Code of 1906, to enjoin an assessment so made. Both the case of the Gulf & Ship Island Railroad v. Adams, 85 Miss. 772, 38 So. 348, and the Western Union Telegraph Company v. Kennedy, supra, held that the state tax assessor, in assessing and valuing* property, was acting in a gwasi-judicial capacity, and certiorari would lie to review its judgment. See, also, Forest County v. Melton, 123 Miss. 615, 86 So. 369; section 61, Hemingway’s Code; section 81, Code of 1906; section 156 of the state Constitution. We think that the authorities above cited show that, where property is brought before the assessing board or authority, and where it has made an assessment upon the statement rendered in compliance with law, that the assessment so made is binding and conclusive, unless the statute gives some board, or officer, or court the power to review it and change it, and unless it falls *251 ■within the exceptions noted in these cases, none of which exceptions, we think, are applicable to the present case. It is manifest, from the consideration of the statutes above set out, that it was the purpose of the legislaure to assess railroads on the unit basis in order to reach their value, and the tax assessors charged with the duty of assessing them reached their conclusion of value as a whole by considering all of the matters returned in the schedule together, taking all of the kinds of property and value, as well as the franchise and capital employed in business, into consideration, and forming their judgment thereon. It, of course, would be possible for the legislature to enact a different scheme, and, if a different scheme were enacted, then the provisions of said scheme would control. All the legislature intends for the property owner to do is to bring all of its property to the attention of the assessing board or body and disclose the things required by law. It then becomes the duty of the assessing body to find its value and make up the assessment roll reflecting that value. It is true that the property placed on the roll names specific thing's, to-wit: First, main track; second, second main track; third, side track;- fourth, depots; fifth, cotton platforms; sixth, stock pens; seventh, toolhouses; eighth, water stations; ninth, coal -chutes; tenth, warehouses; eleventh, section houses; twelfth, machine shops.; thirteenth, signal towers; fourteenth, telephone booths; fifteenth, tools; sixteenth, office furniture; seventeenth, material and supplies; eighteenth, real estate — with the notation at the botton of the roll, “Main track includes value of waylands, station grounds, yards, roadbeds, bridges, rolling stock, telephone and telegraph, and franchise.” The assessment made must be interpreted in the light of the statutes and the returns required to be made by the statutes above set out, and, when an assessment is made on returns made in accordance with the statutes, we must construe the assessment to contain all of the items brought to the attention of the Railroad Commission by *252 the returns made, considering them, as being’ integrated into the assessment. It would be manifestly inconvenient to have a roll list of the various items of property and value shown in the return, and the statute does not contemplate this. The assessor assesses the railroad as a unit, and it is not necessary for the roll to show all of the items shown on the return. The cases relied on by the appellee to sustain his position (taxing private corporations and individuals) are not applicable here, for the reason that the special scheme of assessment provided by the legislature is different from that of individuals and private corporations. Individuals are assessed upon items reflected by the assessment roll and the list required to be returned by individuals. In the case of railroads, it is manifest that the railroad assessors knew that the Illinois Central was operating the line of railroad assessed upon the rolls, and that it was the lessee of the property and franchises of the Chicago, St. Louis, & New Orleans Railroad, and that the assessment returned by the railroad reflected all of the thing’s contemplated in the return required to be made. It assessed itself with the entire property, although the roll shows that the line was owned by the -Chicago, St. Louis & New Orleans Railroad. In the view that we have taken of. the matter, it is not necessary to consider what practice would be proper or what power the circuit court would have to try the cause de novo, or whether the circuit court would have power to remand it to the tax commission for further proceedings, should it find it necessary to reverse the judgment of. the tax commission. "We are of the opinion that the Railroad Commission properly refused to make the assessment, and that the circuit court erred in holding the railroad liable to back assessment on the fact con-' tained in this record. The court here is in agreement with the taxi commission and the attorney-general upon the law, and the circuit court judgment will be reversed, *253 and judgment rendered affirming the judgment of the tax commission. Keversed, and judgment here for appellant. Affirmed on cross-appeal. Reversed. Affirmed. Footnotes [*] Corpus Juris-Cyc. References; Taxation, 37 Cyc., pp. 724, n. 33; 742, n. 52; 1020., n. 10; 1036, n. 4; 1108, n. 62; 1120, n. 23.