Horton v. King
| Citation | 113 Miss. 60,73 So. 871 |
| Court | Mississippi Supreme Court |
| Decision Date | 13 March 1913 |
| Parties | HORTON v. KING et al |
October 1916
APPEAL from the chancery court of Lincoln county, HON. G. G. LYLE Chancellor.
On rehearing, Judgment in division reversed and judgment below affirmed. For former opinion see 110 Miss. 859.
The facts are fully stated in the opinion of the court.
Judgment affirmed.
H. H Creekmore, for appellant.
Appellee in his brief has re-constructed sections 90 and 112 of the Constitution and has suggested an amendment adding a new paragraph to section 10 to be known as paragraph "V" to the effect that the prohibition of section 10 shall apply to laws "providing for purposes of general revenue. We must take the constitution as written and not as it might have been written. Section 90 deals with one thing and section 112 with an entirely different thing. Section 112 among other things provides that property shall be assessed for taxes according to general laws and by uniform rules according to its value. The Act of 1908 provides that the lands of Lincoln county shall be assessed for taxes under the general law and by uniform rules and only makes provision for the assessment to be ordered in April instead of July or August. It is to be observed under this act that the only difference is that the assessment shall be ordered in April instead of being ordered in July or August, and the assessment when ordered shall be made by the assessor complying in all respects with the law governing general land assessments in this state. The law further provides in section 2 that upon the return of the assessment at the time and in the manner required by law for regular land assessments the board of supervisors shall perform all duties at the time and in the manner required by law for regular land assessments; the board of supervisors shall perform all duties at the time and in the manner and form as prescribed by law for general land assessments. Under this statute while the assessment was ordered at the April meeting instead of the July or August meeting, the approval of the roll was to be made at the same time and in the same manner as if it had been ordered made under the general law and at this time, identical with the time fixed by the general law, all objections to the roll could legally be heard and any inequalities in the roll could legally have been corrected. When this equalization of the roll was being had all fluctuations of value caused by financial conditions could have been adjusted, and a full and complete remedy was open to the tax-payers; and therefore the valuation under the law could have been and presumably was in effect uniform and on the same basis in so far as they were influenced by general prevailing conditions. I think the law provided a remedy to meet the result complained of in appellee's brief to the effect that it would result in an unequal burden to have the assessment made in one section of the state in times of financial stress and have the assessment in another section of the state under improved conditions. In short, the final approval of the roll under the general rule and under the Act of 1908 was to take place at the same time.
I have read the Mississippi cases cited in appellee's brief and as I conceive the points raised in the case at bar, none of these cases touch the question, and I submit the case on the points raised in the court below without further comment.
Jones & Tyler, for appellee.
The act is unconstitutional and void because it conflicts with section 112 of the Constitution of 1890, from which we quote the following:
It was conceded by appellant in his brief that In view of this concession, it will not be our purpose to discuss any other question that might arise in connection with the case. If the Act of 1908 is unconstitutional, the assessment and sale made thereunder are void. Hawkins v. Mangum, 78 Miss. 97; Coffee v. Coleman, 85 Miss. 14; Scarborough v. Elmer, 87 Miss. 508; Virden v. Bowers, 55 Miss. 1.
Section 87 of the Constitution of 1890, provides that in all cases where a general law can be made applicable and would be advantageous, no special law shall be enacted. It cannot be contended that the situation in Lincoln county was one that could not be provided for by general law, because the legislature had enacted general statutes under which this very contingency was provided for, these statutes being sections 4299, 4300, 4301, of the Code.
It is a case where no legislation at all was needed, neither a special, nor a general law. If any were needed by this section of the Constitution, it could only be provided for by general laws and none was needed in this instance because provision had already been made by general laws. The act not only violates the policy of the state on this subject as outlined by this section of the Constitution, but it is further objectionable for the reason that it undertakes to amend a general law by a special act in that it substitutes for the opinion of the board of supervisors, as provided for by section 4299, the judgment and opinion of the legislature. In other words, by section 4299 of the Code where, in the opinion of the board of supervisors, an assessment of lands is erroneous and imperfect so as to cause inconvenience, unnecessary trouble, or to entail financial loss to the tax-payers of the county, the board may order a reassessment. Under the Law of 1908, the legislature proceeds to adjudicate the matter which is left by the general laws to the local authorities which is in accordance with the general policies of our law, and the legislature proceeds to adjudge and determine that the land assessment of Lincoln county is erroneous and imperfect.
The policy of our Constitution makers as shown by sections 87, 88, 89, 90, Constitution of 1890, is violated by this act. We have already shown the general provisions of section 87. Section 88 provides that the legislature shall pass general laws under which local and private interests shall be provided for and protected and by section 89, it is required that each house of the legislature have a standing committee on local and private legislation and that no local or private bill shall be passed by either house until it shall have been referred to its committee and reported back with a recommendation in writing that it do pass and stating affirmatively the reason therefor and why the end to be accomplished should not be reached by a general law. By section 90, it is expressly stipulated that there shall be no local, private, or special legislation in several enumerated cases. One of the subjects embraced in section 90 or in the prohibition of section 90, is exemption of property from taxation or from levy or sale. We think that the requirement in section 112 of the Constitution of 1890 that the property shall be assessed for taxes under general laws, and by uniform rules should be treated in connection with the enumerated cases in section 90. The language in section 90 is negative and in section 112 affirmative and positive. The necessary implication is that when a matter is directed to be done in a certain way, then, it shall not be done and cannot be done in some other way. Construing sections 90 and 112 together, they might be read as follows: "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, namely: "Then, after paragraph U, section 90, might be added the following: It looks like the Act of 1908 is so manifestly unconstitutional and void that argument to demonstrate the fact should be unnecessary.
There is one question raised by this record, which, in our opinion, is decisive of this appeal, and we will consider no other point raised by the briefs of counsel. The case was considered and decided by Division A, and the opinion then rendered will be found reported in 110 Miss. 859, 71 So. 9. After this opinion was rendered counsel for appellee filed a motion, asking that the judgment rendered in response to the opinion be set aside and vacated, and, for reasons satisfactory to Division A, this motion was sustained, and the record was then submitted to the court en banc, on briefs, and this opinion is therefore the opinion of the court sitting en banc.
The determinative question referred to in the beginning of this opinion is this: Is chapter 239, Laws of 1908, violative of section 112 of the state Constitution? The land involved in this suit, it is admitted, was assessed under that act of the legislature, and this action was instituted to confirm a tax title obtained by virtue of a tax sale under the authority of an assessment made under the aforementioned chapter 239. Section 1 of said act authorized the board of supervisors of Lincoln county "in its discretion, at its regular meeting in April, 1908, to order an assessment of the lands of the county to be in lieu of the last . . . assessment of lands therein." The board of supervisors, in pursuance of the...
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