Adams v. Kuykendall

Decision Date25 January 1904
Citation83 Miss. 571,35 So. 830
CourtMississippi Supreme Court
PartiesWEST ADAMS, STATE REVENUE AGENT, v. LETITIA A. KUYKENDALL

FROM the circuit court of Warren county. HON. GEORGE ANDERSON Judge.

Adams state revenue agent, appellant, was the plaintiff, and Mrs Kuykendall, appellee, defendant, in the court below.

The opinion of the majority of the court states the controlling facts of the case.

Reversed and remanded.

McLaurin Armistead & Brien, for appellant.

The assessment of taxes is sought to be avoided on two grounds, first, that under the charter of the city of Vicksburg the notes are exempt, and second, that under its charter the city of Vicksburg has no power to levy back taxes.

The asserted exemption is unconstitutional and void for the reason that upon an examination of this charter and the property liable for taxation as set out in sec. 31 thereof, the court will see that all solvent credits are made liable to taxation.

We have here a charter undertaking to assess and tax all solvent credits and at the same time undertaking to exempt that class of solvent credits which represents the purchase money of lands within the city limits. Such an attempted exemption is violative of the provisions of the constitution of 1869, found in art. 12, sec. 20, which is in these words: "Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law."

The corresponding section of the constitution of 1890 is sec. 112, which contains similar language with the omission of the word "all."

It was held in the case of Daily v. Swope, 47 Miss. 367, that this provision of the constitution of 1869, which we have quoted above, was taken from the constitution of California as a literal transcript, and looking at the decisions of California we find the case of People v. Eddy, 43 Cal. 331; S. C., 13 Am. Rep., 143, in which this question is discussed with great clearness, the court says: "Is any argument needed to make it apparent that where the general law subjects all solvent credits to taxation that another law which singles out one class of debts, whether the classification is based on the circumstances that their payment is secured by mortgages or that they are owing to savings banks, or to a particular bank, corporation or person, whether natural or artificial, or a particular class of persons, and exempts such debts from taxation is repugnant to the constitution?" Burroughs on Taxation, sec. 53; Knowlton v. Rock County, 9 Wis. 410.

The constitutional requirement that taxation shah be equal and uniform is violated by the pretended exemption found in the charter of the city of Vicksburg. Besides, it has been uniformly held as laid down in Railroad Co. v. Adams, 73 Miss. 648, and in Cooley on Constitution Limitations (7th ed.), 228, et seq., that the rights and franchises of such a corporation (municipal corporation), being granted for the purpose of government, can never become such vested rights as against the state that they cannot be taken away.

R. V. Boothe, for appellee.

Section 31 of the charter of the city of Vicksburg especially provides that notes given for the purchase money of real estate shall be exempt from municipal taxation in all cases, when the property itself is assessed and pays taxes. Laws 1884, p. 445.

Opposing counsel insist that this exemption in the charter is in contravention of sec. 90 of the state constitution, and rely upon the case of Chidsey v. Scranton, 70 Miss. 449, in support of their contention, but we doubt the applicability of the rule announced in that case to the one now under consideration.

Constitutions, in their interpretation, are governed by the same canons of construction as other laws, and the framers of our organic law intended to give to sec. 90 a prospective operation only, except as to those things especially enumerated in paragraph k, which was the only portion of said section involved in Chidsey v. Scranton, supra.

Now, what is the language used? "The legislature shall not pass local, private or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz.:

"(k) Exempting any person from jury, road, or other civil duty (and no person shall be exempt therefrom by force of any local or private law)."

From the import of the language used it is absolutely certain that the makers of the constitution, when they framed this section, intended to mean, and did mean, that it was to have a prospective operation as to all the matters enumerated, except those mentioned in subdivision (k), and others of like character (ejusdem generis).

That the framers of the constitution did not intend to give a retroactive effect to sec. 90, except as indicated, and did not mean to repeal the charters of existing municipalities, is demonstratably clear from secs. 80 and 88, of the same instrument, as interpreted by this court. Lum v. Vicksburg, 72 Miss. 955.

The charter of Vicksburg is not in conflict with the uniformity and equality clause of sec. 112 of the constitution, for sec. 31 of the charter is uniform, and operates alike on all the inhabitants of the city holding the particular class of securities mentioned, to wit, notes secured by vendor's lien.

But suppose the court should differ from us on this question, then we come to the second proposition: Can the revenue agent, under the charter of Vicksburg, have solvent credits assessed for the taxation of back years at all?

Our position on this question cannot be successfully assailed, for it would seem to follow, as the night the day, that if the city assessor, himself, is without power or authority to make such an assessment under the terms of the charter, then, clearly, the revenue agent cannot force him to do that which he cannot do of his own motion. Argument upon this question would seem to be a work of superogation.

The court will take notice that the city of Vicksburg is operating under its own charter, as provided by § 3035 of the code, and not under the chapter on municipalities.

Now, the code makes ample provision for the assessment by the sheriff of property which has escaped taxation, for the taxes due the state and counties for past years, Code 1892, § 3804. A similar provision will also be found authorizing municipalities to collect back taxes on property which has escaped taxation. Code 1892, § 3018. But the charter of Vicksburg will be searched in vain for any like authority given either to the assessor or any other official, and if the charter does not give the right it does not exist.

Nor can the revenue agent claim the right to levy these taxes under the act approved February 6, 1894, creating the office of revenue agent and prescribing his duties. The very title to this law declares its scope and purpose, and by no possible stretch of the judicial imagination can it be construed to be an amendment to the charter of the city of Vicksburg, and where municipalities are mentioned in the act it must of necessity be held to mean that class of municipalities which are operating under the code chapter, and not to those which, by its very terms, are under their own charters. Besides, if anything further was necessary to answer the argument, the constitution itself answers in sec. 61, which reads as follows: "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length."

Greenville, like Vicksburg, is one of the few cities in the state which took advantage of the special provision, code chapter allowing it to do so, and is operating under its separate charter, and this court, in the case of State Revenue Agent v. Greenville, 77 Miss. 781, has settled the question for which we contend, that the revenue agent has no power to assess solvent credits for the municipal taxes for past years at all.

It is claimed that the Greenville case is unlike the one under consideration, in that it was a proceeding by mandamus. So it was. Courts sometimes draw very shadowy distinctions, but none has ever gone so far as to say that the form of action changes the principle of law involved. It was in that case, as in this, one of power simply, and the court say "that such property in a municipal corporation must be clearly given before it can be exercised." This language settles the question at issue. Sections 30, 31, 33 and 35 of the charter of Vicksburg, the only ones bearing on the question.

The exemption of this class of securities from taxation is consonant with the plainest principles of equity and justice, for when a piece of real estate itself is taxed, and the notes given for the purchase money of it are also taxed, it is tantamount to double taxation.

The preponderance of authority is against us, but those courts holding to the view herein expressed are supported by the soundest reasoning.

Catchings & Catchings, on same side.

This is a suit wherein the revenue agent, acting under the acts of 1894, has directed the assessor of the city of Vicksburg to make an assessment by way of an additional assessment (under general levy) on the roll or list in his hands for property that had escaped taxation, and serving the notice provided in this chapter, whereby objections to the additional assessment may be heard at the next meeting of the board of mayor and aldermen of the municipality. This was done in this case, and it is claimed that under the acts of 1894, ch. 34, empowering the revenue agent to require the assessor to make additional assessments, that it was within the power of the legislature to confer upon the revenue agent the power to make this additional assessment regardless of...

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