Illinois Cent. R. Co. v. Miller

• Citation: 106 So. 635,141 Miss. 213
• Decision Date: 05 October 1925
• Docket Number: 25160
• Court: United States State Supreme Court of Mississippi
• Parties: ILLINOIS CENT. R. Co. et al. v. MILLER, STATE REVENUE AGENT. [*]

106 So. 635

141 Miss. 213

ILLINOIS CENT. R. Co. et al. v. MILLER, STATE REVENUE AGENT. ^[*]

No. 25160

Supreme Court of Mississippi

October 5, 1925

Division B

(Division B.).

1 TAXATION. State tax commission acts judicially and is not party to litigation growing out of its assessments; where certiorari from state tax commission is taken to circuit court, commission is not entitled to appeal from judgment.

The state tax commission, in its function of assessing public corporations for taxation, acts in a judicial capacity, and is not a party to the litigation growing out of its assessments, and, where a certiorari is taken to the circuit court and judgment there rendered, the tax commission is not entitled to appeal.

2 TAXATION. Judgment on certiorari reversing judgment of state tax commission held "final judgment."

Where the state revenue agent sought to back assess a railroad company before the state tax commission, from whose judgment a certiorari is prosecuted to the circuit court, and that court reverses the judgment of the tax commission, but adjudges that the circuit court is without power to enter a judgment assessing taxes and without power to remand the cause to the tax commission, and adjudges costs against the appellee railroad company, such company is entitled to prosecute an appeal to the supreme court. Such judgment is a "final judgment" within the meaning of the statute granting appeals.

HON. C. W. THIGPEN, Special Judge.

APPEAL from circuit court of Hinds county, first district, Hon. C. W. THIGPEN, Special Judge.

Application by W. J. Miller, state revenue agent, before the state tax commission, to back-assess the Illinois Central Railroad Company. From a judgment of the circuit court, on certiorari, the railroad company and the commission appeal. On motion to dismiss the appeals and on motion to advance the railroad company's appeal. Appeal of tax commission dismissed, motion to dismiss appeal of railroad company overruled, and motion to advance such appeal sustained.

See, also, 106 So. 636.

Motion to advance sustained.

W. S. Horton, R. V. Fletcher and May, Sanders & McLaurin, for appellant.

This petition for certiorari was filed under sections 72 and 73, Hemingway's Code. It was held by this court in Gulf, etc. Ry. Co. v. Adams, 85 Miss. 772, and Yazoo, etc., R. R. Co. v. Adams, 85 Miss. 772, that the railroad commission is an inferior tribunal within the meaning of section 73 and that certiorari would lie from this tribunal to the circuit court.

An appeal will lie to the supreme court only from final judgments of the circuit court. It is our earnest contention, however, that the judgment entered in this case is a final judgment within the meaning of the common-law rule upon the subject, as well as the rule which prevails in the state of Mississippi. We do not understand that the rule in Mississippi differs in any important respect from the rule at common law as recognized in the jurisprudence of the several states and of the federal court.

Now the question we have before us is whether this particular judgment is final. Certain considerations should be borne in mind. The case deals with a judgment rendered by an administrative body; namely, the state tax commission. This commission is not a court and the statutes of Mississippi do not permit an appeal from the decision of the state tax commission directly to any court of the state of Mississippi. No appeal in a case of this kind can be prosecuted to the circuit court or to any other court from a judgment of the state tax commission. When we come to consider the proposition in the light of familiar authority, we think it is clear that the judgment is a final one from which an appeal may be prosecuted. The books, of course, abound in cases passing upon the question of whether a judgment is final. See 3 C. J., page 441. This familiar statement of a familiar rule of law, we insist, shows that, tested by the variously stated principles there laid down, the judgment in this case is essentially final in its nature. We call attention to a few cases illustrating the point for which we contend: Railroad Commission of Texas v. Weld et al., 66 S.W. 1095; Starkey et al. v. Starkey et al., 166 Ind. 140; Carr et al. v. Duhne et al., 167 Ind. 76; Hall et al. v. McDonald et al., 171 Ind. 9; Thompson et al. v. Ferguson et al., 180 Ind. 312; Buckler v. Safe Deposit & Trust Co., etc., 80 A. 899; Hollis, Admr., v. Caughman et ux., 22 Ala. 478; Rogers v. The Boston Club, 28 L. R. A. (N. S.) 743; Sanders v. Bluefield Waterworks & Improvement Co., 106 F. 587.

It is clear from a casual reading of the text of 3 Corpus Juris, mentioned above, that the order here involved is appealable, since it disposes of the issue so far as the circuit court of Hinds county is concerned. In other words, this judgment has all the earmarks of finality. It purports to be a final disposition of the case in the circuit court. It adjudges costs and awards execution. Its actual operative effect is to require the railroad company to be assessed in some amount. Nothing remains for the circuit court to do in the premises, and indeed very little remains for the tax commission. The rights of the parties are finally settled so far as those rights were submitted to the circuit court for adjudication. It is familiar law that if a decree disposes of the substantial merits of the case, it may be appealed, although there remains an accounting between the parties. See Marion Coal Co. v. Peale, 204 F. 161; 3 C. H., page 448.

It may be that the attention of the court will be drawn to Madison County v. Frazier, 78 Miss. 880. In that case, it was held that an order of the board of supervisors directing an assessment is not final until the assessment roll is approved and the board has adjourned. In that case the appeal was prosecuted on August 28, 1900, and under the statute the assessment roll was not approved until in September, after the appeal had been taken. The court held that the board of supervisors had made no final judgment and that an appeal could not be made until the September term had come and gone. Manifestly, cases of this character have no bearing upon the point we are discussing. If the circuit judge had merely rendered an opinion and had entered no final judgment disposing of the case so far as his court was concerned, then, of course, no appeal could have been taken until the judgment was rendered.

Perhaps the leading case in Mississippi, at least in modern times, is G. & S. I. R. R. Co. v. Williams, 109 Miss. 549. The case deals with the action of the trial court in permitting the plaintiff to take a voluntary nonsuit. The general authorities are reviewed and the conclusion is announced that a judgment of nonsuit based on the request of the plaintiff is not a final judgment, since there is nothing to execute upon affirmance and nothing could be done by the court below which would be superseded by appeal. But in the instant case the judgment for costs can certainly be executed, and if the judgment of the court belows stands, the action of the state tax commission will be canceled and annulled and the tax commission will have certified to it the judgment and opinion of the circuit court. The significant thing to remember in this connection is that the action of the circuit court annuls and cancels the order of the state tax commission, which was a finding that the Illinois Central Railroad Co. was not responsible for any taxes under the notice served by the state revenue agent. That feature of the matter was definitely and finally settled.

Rush H. Knox, Attorney-General, for the state tax commission.

The tax commission bases its right to appeal upon section 94, Code of 1906 (section 76, Hemingway's Code). It was the opinion of the tax commission and of this department that the judgment rendered by the circuit court is violative of section 90, Code of 1906 (section 72, Hemingway's Code) and section 91, Code of 1906 (section 73, Hemingway's Code). These sections have been construed by this court in Board of Supervisors v. Melton, 123 Miss. 615, and so far as we have been able to ascertain this is the last utterance of the court upon the kind of judgment to be entered by the circuit court on a writ of certiorari.

It will be seen from this that there are only four judgments which can be rendered by the circuit court in a case of this character: (1) An order of dismissal; (2) an order or judgment affirming the judgment of the lower tribunal; (3) a judgment setting aside the former judgment and the entering of a proper judgment if such judgment is apparent from the record; (4) the trial of the case anew on its merits and a judgment in accordance with the facts developed in the trial de novo, the same as in cases tried de novo in ordinary appeals to the circuit court. None of such judgments was entered in the case. at bar.

Under the law the tax commission is vested with discretion in passing upon assessments of railroad companies and other public utilities and exercises judicial functions in making said assessments, and are required by law to "assess the property of railroads, telegraph, telephone, sleeping car express company and other public service corporations liable to taxation in the state, affixing its true value so that such property shall bear its just proportion of taxation, taking into consideration the value of the franchise, the capital stock engaged in the business in this state; and the state assessors of railroads and other public service corporations may adopt other and further rules necessary and proper to ascertain the value of property to be assessed by them, including the amount of capital engaged in the business in this state." Chapter 138, Laws of...