Illinois Cent. R. Co. v. Middleton

• Decision Date: 19 April 1915
• Docket Number: 17984
• Citation: 68 So. 146,109 Miss. 199
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL R. CO. v. MIDDLETON, SHERIFF AND TAX COLLECTOR

68 So. 146

109 Miss. 199

ILLINOIS CENTRAL R. CO. v. MIDDLETON, SHERIFF AND TAX COLLECTOR

No. 17984

Supreme Court of Mississippi

April 19, 1915

APPEAL from the chancery court of Hinds county. HON. O. B. TAYLOR Judge.

Suit by Illinois Central Railroad Company against E. S. Middleton Sheriff and Tax Collector. From a judgment dismissing the cause on demurrer, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Decree affirmed.

Mayes &amp Mayes, for appellant.

In this case we have two contentions: First, these school districts were created after the first of February, and because of this the property included therein was not liable for any tax for the current year, 1914; second, if we are wrong as to this the exclusive assessor for railroad property is the Railroad Commission, and the Railroad Commission having refused to assess this property for the current year, no assessment could be made by any other authority and the board of supervisors could not impose any tax on the property until the assessment was properly made by the Commission.

Section 4257 of the Code of 1906, provides that: "All taxable property brought into the state or acquired or held by any person before the first day of February shall be assessed and taxes thereon paid for the current year." This section seems to make it plain that property is not liable for current taxes unless liable on the first day of February, and in this case this property was not so liable, because there was no district.

Section 4255 provides that: "Taxes shall be a lien upon and bind the property from the first day of February of the year in which the assessment shall be made."

These two sections fix first: The date when the liability attaches, and, second, the date from which the lien on the property commences, which is the first of February. Section 4280 provides that land shall be assessed between the first day of February and the first day of July, and every two years thereafter.

Under the above sections it seems plain that before any property can be assessed for taxation for any current year, the property must have been liable to the tax before the first day of February of that year. This is the rule fixed by the statute and is the construction of the statute that this court placed on it in the case of Gulfport v. Todd, 92 Miss. 428.

In view of the Todd case it would seem that we need not cite any additional authority to show that territory brought into a municipality after the time fixed for the lien of taxes cannot be assessed for the current year, but since such holding seems universal, we call the court's attention to a few authorities: See 28 Cyc., p. 1678; also Austin v. Butler, 40 S.W. 340; Latonie v. Myer, 86 S.W. 686.

The chancellor followed the case of Atchison, Topeka & Santa Fe Ry. v. School District 99, 75 Kan. 843, 89 P. 1015. In Kansas the law seems to require personal property to be listed for taxation on the first of March. In that case the school district was not organized until June 23rd. The tax was levied upon property embraced in the territory brought into the separate school district after the date fixed by statute. The Kansas court, without citing a single authority, said: "There is no claim that on March first the property taxed was not within the territory which now comprises the school district, or that plaintiff's property was taxed in any other district or subjected to double taxation. There is, therefore, nothing equitable in plaintiff's claim. It rests upon a technical construction of the law of taxation, and not upon any prejudice to plaintiff's rights. The levy was made within proper time, by a district duly organized, and upon property which on the first day of March was within the territory comprising the school district when the levy was made, and none of the property paid school taxes for that year in any other district. This, we think, is sufficient to render the tax legal and valid."

There is hardly a case tried in this court where there is not some conflict of authority. The chancellor followed, not the decision of our own court supported by almost unanimous analogous authority, but followed the Kansas court. Judge CALHOUN, in deciding the Todd case, said: "We do not think any authority can be found which, in a precisely similar case, holds otherwise. If so, we decline to follow it." Our court fixed the rule for this state, and did not leave it open for the Kansas decision to outline a different rule.

The attorney-general gives it as his opinion to the Railroad Commission that this tax could not be collected for this year, and that body has not assessed the property of the Railroad Company for this tax for the current year.

In section 4384 of the Code of 1906, the Railroad Commissioners are made the state railroad assessors, and in the case of Y. & M. V. R. R. v. City of Vicksburg, 49 So. 185, it was held that no authority, save the Railroad Commission, could make any assessment of railroad property. It is charged in this bill, and the demurrer admits, that this assessment was not made by the Railroad Commission, and they declined to do it.

Before any city, town, county, separate school district, or other subordinate agency of the government can collect any taxes from the Railroad Company, the assessment must be made by the Railroad Commission, and under section 4387, it must make it out for each county, town, village, separate school district, etc. The assessment roll of the property within the town, village or separate school district so prepared by them serves as the only warrant for the tax collector to collect taxes. This was not done and for the many other reasons here argued we contend that the decree of the chancellor is bound to be reversed.

Watkins & Watkins, for appellee.

"There is presented for decision in this case the legal question as to whether the board of supervisors can make a valid assessment of taxes--a special levy upon the property embraced within the consolidated school district, said district having been formed and established after February first and prior to the date fixed for the board of supervisors to make the assessment. Complainant contends that it cannot and in support of this contention relies upon the case of City of Gulfport v. Todd, 92 Miss. 428. In that case it was specifically decided that inasmuch as the territory added to the city of Gulfport was taken within the corporation after February first that the municipal tax could not be legally collected. If the creation of the consolidated school district is the same thing as the addition of territory to a municipal corporation, then this case must be decided for complainant.

"We do not believe that it is. In this case, as stated in the opinion of the court, there is no question of governmental agency. A municipal corporation is simply a creature of the legislature, a corporation organized entirely separate and set apart with the power of doing only such things as have been specifically granted to it by the law-making department of government. The board of supervisors are a part of the state government itself, and when it acts it does so as a part of the organized government. When the municipality goes out and brings into its limits new territory, it places a burden in the way of taxes, upon property which on the day fixed by law was wholly outside its jurisdiction, but when a consolidated school district is organized it is but the state providing for itself another medium through which to exercise its desires for its citizens. It does not bring an additional burden upon property which had been added to a division of the Government after the date fixed by statute, but only places a burden upon property which was located in the district at the time fixed by law. We think the decision in the city of Gulfport case correct, but that there is a difference between a municipality bringing into its corporation new territory, and the organization of an entirely new and separate part of the state government in a legal way by the constituted authorities.

"We think the case of Atchison, Topeka and Santa Fe Railway Company v. School District No. 99, 75 Kan. 843, is strikingly analogous to the situation in this case. In Kansas the law required personal property to be listed for taxation on the first day of March. In Mississippi, February first is the day. There the school district was not organized until June 23rd, when the tax was levied. In both cases the tax was levied upon property embraced in territory that had not been formed into a separate district until after date fixed by statute. The court says: 'There is no claim that on March 1st the property taxed was not within the territory which now comprises the school district, or that plaintiff's property was taxed in any other district or subjected to double taxation. There is, therefore, nothing equitable in plaintiff's claim. It rests upon a technical construction of the law of taxation, and not upon any prejudice to plaintiff's rights. . . . The levy was made within proper time, by a district duly organized, and upon property which on the first day of March was within the territory comprising the school district when the levy was made, and none of the property paid school taxes for that year in any other district. This, we think, is sufficient to render the tax legal and valid.'"

By reference to section 3 of chapter 255 of the Acts of 1912, we find that the legislature has provided that the tax for consolidated schools shall be levied by the board of supervisors in 'the same manner as provided for separate school districts.' If we read the provision for this for separate school districts in the Laws of 1910, chapter 217 there is no doubt but that it is the...