City of Hattiesburg v. New Orleans & N. E. R. Co.

• Decision Date: 18 January 1926
• Docket Number: 25252
• Parties: CITY OF HATTIESBURG v. NEW ORLEANS & N. E. R. CO. [*]
• Court: Mississippi Supreme Court

106 So. 749

141 Miss. 497

CITY OF HATTIESBURG v. NEW ORLEANS & N. E. R. CO. ^[*]

No. 25252

Supreme Court of Mississippi

January 18, 1926

Division A

1 TAXATION. Order of state tax commission, assessing railroad for municipal taxation at higher value than assessed for county and state taxation, held void.

An order of the state tax commission, assessing the property of a railroad company for municipal taxation at a higher value than it assessed the same property of such company for state and county taxation, is void.

2 TAXATION. Railroad paying under protest taxes on void assessment may recover them regardless of failure to appeal from order of state tax commission making assessment.

Where a railroad company has paid taxes to a municipality under protest on a void assessment of its property by the state tax commission, it may recover from the municipality the taxes so paid, although no appeal was taken by the railroad company from the order of the tax commission by which the assessment was made.

3. MUNICIPAL CORPORATIONS. General protest against payment of taxes to municipality on void assessment is sufficient as basis of recovery of such taxes.

A specific protest against the payment of taxes to a municipality on a void assessment of property is not necessary in order for a taxpayer to recover from the municipality the tax paid it by him on such assessment. A general protest is sufficient.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by the New Orleans & Northeastern Railroad Company against the city of Hattiesburg to recover taxes paid under protest. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

D. E. and C. W. Sullivan, for appellant.

We submit that the state tax commission had the right to make this raise of forty per cent on railroads and other public service corporations for municipal taxation in the interest of uniformity and equality in taxation in the particular district composed of the municipality of the city of Hattiesburg. The raise of forty per cent made by the state tax commission is not in violation of section 112 of the Constitution of Mississippi, regarding uniformity and equality in taxation, but the demand of the railroad company in this case is in violation of this provision.

It does not violate the Fourteenth Amendment of the Constitution of the United States and this point has been expressly decided in Fort Smith Lumber Co. v. Arkansas et al., 64 L. E. (U. S.) 398.

The taxpayers in the corporate limits of the city of Hattiesburg who are assessed for municipal taxes are bound by this forty per cent raise on their values and have no recourse or remedy. The raise as to them, by the municipal authorities, is perfectly legal and just; they must, therefore, pay on the valuation put upon their property forty per cent more than the valuation put upon the same property, as assessed for county or state purposes. Fairness requires that the railroad company should have to pay likewise.

The railroad company had the right to be heard before the state tax commission from November 17, 1922, until December 19, 1922, but the record does not show that it ever asked for a hearing on this question. Under the law, after the railroad company had the right to a hearing by the courts of the state on this question, the matter could have been carried by certiorari from the decision of the state tax commission to the state court and there decided and settled. Did the railroad seek relief under this remedy? It did not. We submit that the railroad is now estopped from making any complaint in the court about the forty per cent raise by the state tax commission and that it has no right to maintain this suit in the circuit court of Forrest county to recover the taxes produced by this forty per cent raise. S. & S. I. R. R. v. Revenue Agent, 85 Miss. 772, 38 So. 348; Railroad Co. v. Adams, Revenue Agent, 77 Miss. 764; Railroad Co. v. Adams, 85 Miss. 795; Telegraph Co. v. Kennedy, 110 Miss. 79; Bank & Trust Co. v. City of Jackson, 122 Miss. 557, 84 So. 228.

We call the court's attention to the fact that the protest written on the tax receipt in this case was a general protest and did not specify or set forth any grounds or reasons why the taxes should not be paid. If a law or an act under which taxes are collected is wholly void and unconstitutional, protest may be general; but, otherwise, it is the duty of the taxpayer to point out his specific objections to the payment of the taxes, and if he does not do this, he has no right to maintain his suit to recover the amount. See Pearl River County v. Lacey Lumber Co., 124 Miss. 108.

Stevens & Heidelberg, for appellee.

I. It is the contention of the railroad company that this order attempting to increase the value for municipal taxation purposes forty per cent more than the value as fixed by the railroad commission is null and void.

Counsel for appellant contend in view of the fact that the property of other taxpayers, those whose property is not valued by the railroad commission but by the local authorities, is valued by the city authorities at a higher rate than that at which it was valued by the county authorities, that if the railroad commission did not likewise place a higher value for city taxes than was fixed by it for county taxes, the effect would be unjust as against the individual taxpayers. If it were shown that the state railroad commission in assessing the property of public service corporations adopted the same percentage of the actual or true value of said property when assessing it for state and county purposes as did the board of supervisors of Forrest county in assessing individual's property for taxation, then there might be some justice, moral justice though not legal justice, in counsel's contention; but there is absolutely nothing in the record to show that the railroad commission adopted any such basis of the valuation as this. On the contrary, the presumption is that the railroad commission did its duty and in assessing the property of this taxpayer for taxation, it assessed this property in the manner required by law.

Section 1, chapter 138, Laws of 1918, creates the members of the state tax commissioin as state assessors of railroads and other public service corporations, and makes it the duty of said commission to assess the property of these corporations at its true value. The duty on the part of the assessing authorities of a municipality is exactly the same as the duty on the part of the railroad commission or the duty of the board of supervisors, and that is to assess property at its true value. The presumption, therefore, is that the railroad commission, in performing the duty imposed upon it in assessing the property of this appellee, did its duty and assessed its property for state and county purposes at what the railroad commission deemed to be its true value. Whether that value was the same as might have been placed thereon by the board of supervisors, no man can tell. Whether the original value as fixed for state and county purposes was the same value as would have been fixed by the municipal authorities for municipal taxation, no man can tell. After all, values are but estimates. Men's judgments vary in their estimates of values. The presumption of course, is that the railroad commission, the board of supervisors, and the municipal taxing authorities in each instance honestly did their best to perform their duties, and fixed values according to their judgment of what the true values were.

The presumption being that the state tax commission...