McGehee v. Mathis

Mr. Justice Compton delivered the opinion of the Court. This was a bill in chancery, brought by Edmund McGehee, the appellant, against Martin R. ,P. Mathis, as and in his capacity of sheriff and tax collector for the county of Chicot. The bill alleges that the appellant, during the years 1855, 1856 and 1857, entered and located with scrip, which had been 'issued upon levy contracts, made prior to the 11th day of January, 1855, a large quantity of swamp lands, amounting in the aggregate to over ninety thousand acres, situate in Chicot county. That the lands having been entered with such scrip, were, under the 14th section of the act of the 5th January, 1851, exempt from all taxation whatever, for the space of ten years. That the 14th section of this act was repealed by the act of the 11th January, 1855, and the lands made subject to taxation for State and county purposes, as other taxable property. That by an act passed on the 7th of January, 1857, the State authorized a special levee tax to be levied in that county, under which no lands could be assessed at less than ten dollars per acre. That the levee tax on the lands of the appellant, under that law, amounted to the sum of $4,744 45 annually, and that the sheriff was proceeding to assess and collect the same. The prayer of the bill is, that the sheriff be restrained from collecting any taxes on said lands until after the lapse of ten-years from the date of entry; that the act of January 11th, 1855, be declared void, as impairing the obligation of contracts, and that the special levee tax laid be declared unconstitutional and likewise void. An injunction was granted in strict accordance with the prayer of the bill. The appellee answered, averring that the lands in the bill mentioned, were subject to taxation, and had been regularly-assessed under the levee act. ' He also, in his answer, specially insisted that there was no equity in the bill — that the court had no jurisdiction to restrain by injunction or decree, the collection of a tax levied under the authority of law, and that at the hearing, he would rely on these defences. To expedite the cause, the following agreement, in writing, was entered into by counsel representing the parties, which was filed and became a part of the record in the cause, viz: “ 1. The lands mentioned in the bill, situate in Chicot county, are confirmed swamp lands, and were purchased by the complainant with scrip issued upon levee contracts made prior to the llih January, 1855, but were actually purchased and entered after the passage of that act. They are what are known as alluvial lands, and are owned by MeGehee, who is a non-resident, and a citizen of the State of Tennessee. “2. Under the act of the 11th of January, 1855, the said lands were furnished to the defendant, as assessor of Chicot county, by the auditor, in due form of law, and by such assessor regularly assessed for the year 1858, for State and county taxes, and those taxes being stricken out by the County Court, leaves only the levee tax as the subject matter of controversy. “3. Under the act of the 7th January, 1857, concerning levees in Chicot county, levee inspectors were elected, a levee board instituted, meetings held, the county divided into levee districts, the assessment list made out and returned, and passed on by the County Court, the valuation and tax fixed,- as appears by the exhibits to the answer, and the levee tax book delivered to the defendant as sheriff, all in due time and according to that act. The levee tax thus assessed, being unpaid, publication and advertisement was made in strict accordance with that act, and the sale prevented by the injunction. “ 4. The steps taken and the proceedings had, have been in accordance with said act; but the complainant insists that the act is unconstitutional and that said lands are not taxable for levee purposes, the defendant affirming that they are. “ 5. The levee tax assessed on said lands amounts to the sum named in the bill. “ 6. Replication to the answer, in short, and the cause to be heard by consent at the present term, on bill, answer, exhibits, replication and this agreement.” On the final hearing the injunction was dissolved, and the bill dismissed for want of equity. In disposing of the several question's raised and argued, we will first consider the objections taken to the validity of the act of 7th January, 1857. That act provides'that the county of Chicot shall be laid off into levee districts. That for each district there shall be elected one inspector, who shall reside therein, and that no person shall be entitled to vote in such election who does not reside on or cultivate alluvial lands in the county. After providing for the qualification of the several inspectors, and their organization as a board, it is further enacted, in substance, by the 14th section of the act, that there shall be levied and collected in the county of Chicot, an annual levee tax on all alluvial lands in said county, that would be benefited by levees, and which are or shall be taxable for State revenue, the rate thereof to be fixed by the County Court for each year— commencing with 1857 — at not less than one-fourth of one per centum upon the assessed value of said lands — provided that no lands so taxed, shall be valued at less than ten dollars per acre; that each levee inspector shall assess the lands in his district, and shall be the sole judge of what land would be benefited by levee work, and shall embrace in his assessment list only such as he shall deem-of that description, and that they shall make out and certify under oath, their respective assessment lists, and make due return thereof. By the 15th section of the act, it is made the duty of the Court upon the return of the assessment lists, to make an order levying the tax, in which the amount per acre and time of payment are. to be designated, which order is tc be published in the manner prescribed by the act, and on such publication being made, all the lands in said county subject to the tax, are to be considered as duly and legally assessed, and the tax duly levied thereon; and such order being recorded by the clerk of the Circuit Court,it is made his duty to attach a copy of the same to each tax list o'f the State and county revenue — made out annually — and to extend the said tax against all lands subject thereto, contained in such list, in a separate column, to be provided for that purpose. Then comes the last clause of section 15, which is as follows: “ And said board of levee inspectors shall have power, and it is hereby made their duty, at their annual meeting in-May, to adjust the assessment and levy of said tax, by hearing and deciding all questions relating to the improper assessment and location of any land, or the omission to assess and tax any legally taxable, under the provisions of this act, and make additions to or deductions from the taxes, as charged in such list, upon any land or against any person whatsoever, and such correction and deduction may be made upon the affidavit of the person applying therefor, stating the ground upon which it is claimed, or any other information or evidence, satisfactory to the board of inspectors, whose decision thereupon' shall be final; such board shall make a list of all such corrections and deductions, and deliver the same to the clerk, who shall certify and attach a copy thereof to such tax list made out by him, wdiether the same shall have been previously delivered to the collector of the State and county taxes, or otherwise, and so reform such lists as to make them conform thereto, and the collector of the taxes shall collect,” etc., etc. The first objection relied on is, that so much of the act as requires the lands to be assessed at not less tha.n ten dollars per acre, is in conflict with that clause of the constitution which says: “ all property subject to taxation shall be taxed according to its value — that value to be ascertained in such manner as the General Assembly shall direct; making the same equal and uniform throughout the State.” In answer to this, it is sufficient to say that this clause of the constitution applies to taxation for State purposes, as held by this Court, on a careful review of its former decisions, in Washington vs. The State, 13 Ark. 752. It is next insisted, that so much of the 15th section of the act as confers on the board of inspectors certain powers therein mentioned, conflicts with section 9, Art. 6 of the constitution, which declares that the County Court “ shall have jurisdiction in all matters relating to county taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” The term “ taxes,” as employed in this clause of the constitution, must be construed to have reference to taxation for general county purposes, which is a common burden imposed for the common welfare, and not to special local assessments (as provided for by the act of 7th January, 1857,) where the fund raised is expended for the improvement of the property taxed. Legislative sanction of. such, assessment is ordinarily procured by the action of the parties interested; and that they are widely distinguishable from taxation for governmental purposes, is well established by the authorities. In the Egyptian Levee Co. vs. Hardin, 27 Missouri 495, it appears that, for the purpose of reclaiming from liability to inundation a district of country between the Des Moines, Fox and Mississippi rivers, in Clark county, a company was chartered by the legislature of Missouri, authorized to construct levees and dig canals, and raise the fund necessary for such construction by a tax, not to exceed fifty cents per acre, upon the landholders in the district embraced within the charter'. Each land-owner was allowed a vote, in the control óf the work, for every forty acres of land he owned in the limits. The towns of Alexandria and Churchville, with their additions, were excepted from the operation of the charter, although within the district of country embraced by it. Suit was brought to recover so ue of the assessments, and the defence was, that the act of the legislature was unconstitutional, because the land was taxed by the acre, and not in proportion to its value. The Court said: “that provision of our State constitution, which requires taxation to be proportioned to the value of the property on which it is laid, is only applicable to taxation in its usual, ordinary and received sense, and is therefore limited to taxation for general purposes alone, where the money raised by the tax goes into the State treasury, or the county treasury, or the general fund of some city or towm, and is applicable to any purpose to which the legislative body of such State, county or town may choose to apply it; and is not intended to apply to local assessments, w'here the money raised is to be expended on the property taxed.” In The matter of the Mayor of New York, 11 John. 80, certain churches insisted that their lots were exempt from assessments for opening, enlarging, or otherwise improving streets in the city of New York, made pursuant to an act of the legislature passed in 1813. The Court said in that case: “These assessments are intended and directed to be made upon the owners of lands and lots who may receive ‘ benefit and advantage ’ by the improvement. The exemption granted by the act of 1801, was in the general act for the assessment and collection of taxes; and the provisions of that act refer to general and public taxes to be assessed and collected for the benefit of the town, county, or State at large. The words of the exemption are, that no church or place of public worship, nor any school house ‘should be taxed by any lawr of this State.’ The word ‘ taxes ’ means burdens, charges, or impositions, put or set upon persons or property for public uses, and this is the definition which Lord Coke gives to the word talliage; (2 Inst. 532,) and Lord Holt, in Garth. 438, gives the same definition, in substance, of the word “ tax:n To pay for the opening of a street in a ratio to the benefit or advantage derived from it, is no harden. It is no talliage or tax within the meaning of the exemption.” In Northern Liberties, etc. vs. St. John's Church, 1 Har. 104, the same question arose, and the Supreme Court of Pennsylvania put the same construction on the word tax, and held that the church property, though exempt from taxation, under the general revenue law, was, nevertheless, subject to local assessments appropriated to the improvement of the property itself. The Court said: “ Taxes are a public imposition, levied by authority of the government, for the purpose of carrying on the government in all its machinery and operations. They are imposed for a public purpose; whereas municipal charges are often for the benefit of lot holders on a particular street, and the assessment, as in this instance, induced by the request, made known according to the charter, of a majority of the inhabitants.” Mr. Justice Martin says, in the case of The State vs. New Oilcans Nav. Co., 11 Mart. 309, “These words (impost, tax or duty,) must be confined to the idea which they commonly and ordinarily present to the mind, exactions to fill the public coffers, for the payment of the debt, and the promotion of the general welfare of the country, not to a contribution provided to defray the expenses of building bridges, erecting cause-ways or removing obstructions in a water-course, to be paid by such individuals only who enjoy the advantages resulting from such labor and expense.” The Ordinance of 1787 declared that “all the navigable waters leading into the St. Lawrence and Mississippi, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the territory as the citizens of the United States or those of any other State that may be admitted into the confederacy, without any impost, tax or duty therefor.” This provision was literally copied in the act of Congress of March 2, 1805, and it was held, in the-case from which Judge Martin’s remarks are quoted, that the charter of the New Orleans Navigation Company, which authorized a tax to be levied on vessels navigating the Mississippi for the purpose of raising a fund to be applied to the improvement of that navigation, was not a tax or impost or duty, within the meaning of the act of Congress or the ordinance from which It was copied. The same principle was decided in Crowley vs. Copley, 2 Louis. Ann. 329. Under a law of that State, the owner of land on the Mississippi, was required to construct levees or embankments; and if the'owner failed to construct or keep in repair, his portion of the levee, an officer, called the district inspector, had the levee built or repaired, and assessed the cost upon the land of the delinquent proprietor. This assessment was held not to be' within the act of Congress, which exempted from State taxation all public lands of the United States for five years after they were sold under the direction of Congress. These, and other authorities which might be cited, show the construction which our sister States, through the judiciary, have put upon the term “ taxes,” as employed in their constitution and revenue laws; and it is not reasonable to suppose that the framers of our constitution intended to use the term in a different sense in.that instrument. Nor are the levees provided for by the act of 7th January 5 1857, an “internal improvement and local concern” within the meaning of that clause of the constitution last above stated. Those terms, as there employed, relate to public internal improvements and local concerns for general county purposes — which appertain to the county at large as a body politic — and not to improvements for special local purposes, where the funds expended in making the improvement, are raised by assessments imposed only on the particular property improved. None of these co’nstitutional provisions apply to the exercise of the taxing power of the government in the form provided for'by the act under consideration; and it follows, as a consequence, that the power conferred on the board of levee inspectors, “to adjust the assessment and levy” of the tax “by hearing and deciding all questions” in relation thereto, was legitimately conferred — and, by conferring such power, the legislature did not constitute them a court, as seems to be supposed in the argument. There is, as has been seen, no constitutional provision requiring such assessments to be made and enforced through the instrumentality of a Court; and there is nothing in the nature of taxation itself, in whatever form exercised, which makes it indispensably necessary that the acts of assessment and collection should be performed under the sanction of a judicial tribunal. Parham vs. Decatur County, 9 Geo. 352; McCarroll vs. Weeks, 2 Tenn. 213; 6 Monroe 643; 1 Peters 669. The power of taxation and the mode and manner of exercising the power, in the absence of constitutional restrictions, belong to the legislature. In the performance of their duties, the board of inspectors acted, therefore, as ministerial and not as judicial officers. But it is objected that, by the 15th section of the act, the decision of the board of inspectors, touching the matters confided to their jurisdiction, is made final, and concludes all further investigation as to the legality of the assessments— which, it is contended, is unconstitutional. If this were conceded, it would not destroy the validity of the whole act, because it is well settled that'one part of an act may be unconstitutional and void, and other parts of the act, not necessarily dependent on it, valid. Hence., those provisions of the act which authorize the assessment and collection of the tax would remain unimpaired, because not obnoxious to the objection; while so much of the act as denies the right to test the legality of the assessment by judicial investigation, would be declared void. So that if this objection were well taken, it would only secure to the appellant the right to impeach the assessment for illegality — if any in it — notwithstanding the decision of the inspectors. The construction contended for, however, is not a sound one. The act, after stating what the inspectors shall hear and decide, provides that their “ decision thereupon shall be final.” From this we do not understand that the legislature intended to close the door of the Courts against a party whose land had been illegally assessed. Suppose the land of A is assessed when it is not liable to taxation, by reason of an exemption, or of its not lying in the alluvial district. He appears before the board of inspectors — raises the question, and it is decided against him. Was it the design of the legislature, in such a case, to deny A the right to apply to the Courts' for relief? But suppose the land is sold for the taxes assessed, and the purchaser brings ejectment. Was it intended that A should be precluded from setting up the illegality of the assessment as a defence to the action? The power of the legislature so to enact has been gravely doubted. But whatever may be the power of the legislature, the moral injustice of such a law would be so monstrous, that such a construction should not be put on the statute in question, if, by a strict construction, confined to its very words, one more just and reasonable can be adopted. Blackwell on Tax Titles,p. 102, 103, 104, and authorities there cited. True, the decision of the board of inspectors in the matters which they are authorized to hear and determine, is declared to be final. But this is to be understood in that sense which makes it final so far only as to conclude further investigation by the ministerial officers acting in the assessment and collection of the tax. The decision of the board is pronounced in a ministerial proceeding, and so far as regards its conclusiveness, must be understood to have reference to proceedings of that character — and not to judicial proceedings. It is no where expressly provided in the act, that a party, feeling himself aggrieved in the assessment of his land, shall be debarred the privilege to prosecute or defend his rights in the courts; and we will not extend, by implication, the operation of the act, and thus impute to the legislature the intention to exercise a power so arbitrary and unjust. By express provision of the act of 7th of January, 1857, such lands only as are taxable for State revenue, are made subject to the special assessments provided for by that act; and this involves the further question, whether, under our revenue laws, the lands of the appellant are subject to taxation for State purposes. He affirms that they are not, and relies for their exemption on the 14th section of an act of the legislature, passed on the 6th January, 1851, to provide for the reclamation of the swamp and overflowed lands of'the State. By this act the swamp land commissioners were required to let out the making of levees and drains by contract, at a stipulated price per cubic yard, to the lowest bidders; payment for which was to be made in the lands reclaimed, or the proceeds of the sales thereof, at the price previously fixed by the commissioners, and the contractor might, at his option, demand and receive in payment the land reclaimed in kind, or land scrip representing quarter section tracts — which scrip was transferable by assignment, and might be located on any portion of the unselected swamp and overflowed land. And when any contractor had selected land in payment for his work, or having received scrip, had located it upon unselected land, he was required to furnish the numbers to the commissioners, and, on their certificate, the Governor was directed to execute a deed to the contractor, or his assignee, in due form'of law. Secs. 3, 4, 5, 6, Swamp Land Laws, p. 6. The 14th section of the act is as follows: “ That to encourage, by all just means, the progress and Completion of the reclamation, by offering inducements to purchasers and contractors to take up said lands, the swamp and overflowed land shall be exempt from taxation for the term of ten years, or until said lands are reclaimed.” By the act of the 11th of January, 1855, (Acts 1854, p. 127,) this section was repealed, and all swamp and overflowed lands, sold or located, made subject to taxation, as, under the revenue laws, other lands were'. It is insisted for the appellant, that, although his lands were not actually purchased until after the passage of the repealing act, yet, being purchased with scrip which issued on levee contracts made prior to the passage of that act, they were, by contract between him and the State, brought within the exemption provided for by the 14th section of the act of the 6th January, 1851. We do not think so. The 14th section of that act underwent discussion and was construed by this Court in The State vs. County Court of Crittenden County, 19 Ark. 360. In that case the Court held that the 14th section was, in legal effect, an offer, on the part of the State, to sell her swamp lands, in which she proposed, as an inducement to purchasers, to exempt them from taxation for ten years, or until 'they were reclaimed; that such of them as were sold under the provisions of the act, while the 14th section thereof was in force, were, by contract between the State and the purchaser, exempt from taxation; and that the period of exemption began at the date of the purchase from the State, and continued for ten years, if the lands were not sooner reclaimed, and if they were, ceased upon their reclamation; and in no event continued longer than ten years, whether reclaimed or not. The Court did not decide that the 14th section of the act of 1851, was irrepealable, but did decide, that it could not be repealed so as to affect the exemption’ in favor of those who had purchased swamp lands prior to the passage of the repealing act, and in this was well warranted on principle and by authority. In the offer of the State, the exemption was held out as an inducement to purchasers and contractors to purchase, or, in the language of the act, “ to take up ” the lands, and not as an inducement to contractors to take scrip. Until the offer was accepted, or, in other words, until a purchase was made, there was no contract. Did the State not have the right to withdraw her offer? Was she bound to wait, in order that the holders of the scrip, after speculation had ceased to be desirable, might have an opportunity to secure the exemption? The State was under no obligation, legal or moral,-to do so. According to the plain provisions of the act of 1851, the contractor might take land in kind, or take land scrip. It was left to his choice to do either. Various considerations might, and doubtless in many instances did, influence the contractor to take scrip instead of land in kind. If he took land, it was to be at the price per acre previously fixed by the commissioners, and he was confined, in his selection, to such lands only as were reclaimed, however undesirable they might be; But if he took scrip, it could, as the law then was, be floated, and with it, the contractor could purchase unselected swamp land, lying any where within the limits of the swamp land grant, at the same price per acre, even though the land, thus purchased, should be intrinsically more valuable than those which had been reclaimed. Again: The lands being wild and productive of no present income, the contractor might not be willing to invest the proceeds of his labor in them, and wait indefinitely for the fruits of the investment — whereas, the scrip being assignable, he could, by receiving and selling it, realize its then present cash value. To take land in kind was one thing, and to take scrip was quite another. If the contractor took land, he became a purchaser, and acquired the exemption. But if he took scrip, he did not become a purchaser, and did not acquire the exemption. To hold that the State, in the offer to sell her swamp lands, as expressed in the 14th section of the act of 1851, proposed, as an inducement to contractors to take scrip, that the lands which they might afterwards purchase with it, should be exempt from taxation, would not only do violence to a settled rule of construction — which is, that privileges and exemptions, granted by the State, shall be strictly construed, and that nothing shall be held to have passed except what is clearly and explicitly granted, (State vs. County Court of Crittenden county, supra.) • but would also be at war with what seems to us to be the plain reading of the statute. Leaving the question of jurisdiction an open one, we are of opinion that the appellant’s bill was properly dismissed for want of equity. Let the decree of the court below be affirmed with costs. Absent, Mr. Justice Rector.