Knox v. L. N. Dantzler Lumber Co.

• Decision Date: 28 November 1927
• Docket Number: 26640
• Citation: 148 Miss. 834,114 So. 873
• Court: Mississippi Supreme Court
• Parties: KNOX, ATTY.-GEN. v. L. N. DANTZLER LUMBER CO. [*]

114 So. 873

148 Miss. 834

KNOX, ATTY.-GEN. v. L. N. DANTZLER LUMBER CO. ^[*]

No. 26640

Supreme Court of Mississippi

November 28, 1927

Division B

1 TAXATION. Appeal to circuit court by attorney-general from assessment of taxes by board of supervisors is tried de novo on appeal by attorney-general from assessment of taxes circuit court may try issue and render such judgment as board of supervisors should have rendered in equalizing taxes (Hemingway's Code 1927, section 61).

Under section 61, Hemingway's Code 1927 (Laws 1918, chapter 120), an appeal from an assessment of taxes by the attorney-general is tried de novo, and the circuit court may try such issue, and render such judgment as the board of supervisors should have exercised at the hearing before it in equalizing taxes.

2. TAXATION. On appeal from, judgment of board of supervisors as to taxes, circuit court has same power as board (Hemingway's Code 1927, section 8227).

Under section 8227, Hemingway's Code 1927 (section 4305, Code of 1906), the board of supervisors at the meeting for the hearing of objections to assessments not only hears and determines all objections that are filed, but carefully examines the roll or rolls and causes to be assessed any person or thing that may be found to have been omitted; and anything found to have been undervalued may be correctly valued by it. On appeal from their judgment the circuit court is vested with the same power that the board has; the trial being de novo.

3. TAXATION. Tax assessment on corporations and joint-stock companies, not made by assessors and board of supervisors, may be made by circuit court on appeal (Hemingway's Code 1927, section 6901).

Under section 4267, Code of 1906 (section 6901, Hemingway's Code 1917), it is the duty of corporations and joint-stock companies doing business in the state to make a written statement, under oath, to the assessor, of the capital stock of the corporation or company paid in, and of its market value, and to whom each share belongs, and also a statement of the market value of all real estate owned by such company or corporation as of the 1st day of February of the year for such taxation, and it is the duty of the taxing authorities to tax it, not only upon its physical property, but upon the value of the physical property plus the increase, if any, above such value, shown by the value of the capital stock, and, where such assessment is not made by the assessor and board of supervisors it may be made by the circuit court on appeal taken by the attorney-general.

4. TAXATION. Legislature may authorize circuit court on appeal from tax board of equalization to try case anew (Constitution 1890, section 156).

Under section 156 of the state Constitution of 1890, the legislature is empowered to confer such appellate jurisdiction as shall be prescribed by law upon the circuit court, and the legislature may authorize the circuit court on appeal from the taxing board of equalization, the power to try the case anew. On such appeal the circuit court is vested with the same powers as the equalization board has with reference to such assessment.

5. TAXATION. On appeal from assessment of taxes, circuit court may require production and inspection of books and papers showing property's value; where evidence shows taxpayer has books and papers showing value of property, circuit court, on appeal from tax assessment, should order their production (Hemingway's Code 1927, section 759).

Under section 759, Hemingway's Code 1927 (section 1003, Code of 1906), the circuit court, on appeal from an assessment of taxes against a corporation, prosecuted by the attorney-general or other officer representing the state or county, may require the production and inspection of such books and papers as will furnish evidence of the property owned by the person or corporation taxed, and the true value thereof; and, where the evidence taken on motion for such purpose shows that such, person or corporation has such books, papers, and documents as will show the property of the person or corporation being assessed, the court should order the production and inspection of such books, papers, etc., and such production and inspection does not violate the constitutional provisions against unreasonable search and seizure.

Suggestion of Error Overruled Jan. 9, 1928.

APPEAL from circuit court of Jackson county.

HON. W. A. WHITE, Judge.

From a personal tax assessment on the L. N. Dantzler Lumber Company by the board of supervisors of Jackson county, Rush H. Knox, attorney-general, on behalf of the state, Jackson county, and various taxing districts thereof, appealed to the circuit court and asked for a writ of subpoena duces tecum. From an adverse judgment, the attorney-general appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

E. C. Sharp and Rufus Creekmore, for appellant.

The instruction given is not the law but on the trial of the case before the circuit court on appeal thereto from the board of supervisors the court has the authority and it is its duty to hear testimony not only as to the value of items placed on the roll and valued by the board while equalizing the roll, but also to place thereon any items of property in the county which are subject to taxation, but which either purposely or inadvertently had been omitted from the roll by the assessors or by the board. See section 2, chapter 323, Laws of 1920; sec. 6898, Hemingway's Code, provides that the assessors shall annually assess the polls and all property subject to taxation in their respective counties.

Section 6901, Hemingway's Code, was construed by our court in: Panola County v. Carrier and Son, 89 Miss. 277, 42 So. 347; and Barnes v. Jones, 239 Miss. 675, 103 So. 773, which cases held that the statute as written was incomplete and that in making the assessment of the capital stock there should be deducted, in addition to the aggregate value of the real estate owned by the company, the aggregate value of the tangible personal property owned by the company and subject to taxation; Sec. 6939, Hemingway's Code; Sec. 6, chapter 323, Laws of 1920.

From a reading of these statutes, it will clearly be seen that it was the duty of the Dantzler Lumber Company to return, under oath, a written statement showing the amount of capital stock of said company together with its market value and the name of each stockholder. When the board of supervisors met for the purpose of equalizing the rolls and for hearing objections thereto, it then became the duty of the board to deduct from the value of the capital stock of the corporation the aggregate value of the real and personal property owned by it, and to assess the balance to the company. If the corporation failed to comply with the law in making its return, or if the assessor failed to perform his duty, by requesting said corporation to make said sworn return, and in assessing it the board of supervisors then had the authority, and it clearly became its duty to assess to the corporation the value of said capital stock as property "which was found to have been omitted from the roll." To deny to the board this power would be to deny to it one of its powers which was specifically conferred on it by the very provisions of the statute itself.

If we are correct in this position, and, candidly we cannot see how it can be successfully controverted, then there is no escape from the conclusion that the board of supervisors acts not only as an equalizing board, but, under certain circumstances, also performs the function of an assessor. In the case at bar, the attorney-general did not appear before the board of supervisors and file written objections to the valuation placed on the various items of property assessed by the board, nor did he file written objections to the action of the board in failing to assess to the defendant lumber company, as omitted property, the value of its capital stock. These written objections were not filed by him because of the fact that he was not required so to do in order to take an appeal and to have a trial of the case anew in the circuit court. Robinson Land & Lumber Company v. Roberson, 126 Miss. 535.

Chapter 120, Laws of 1918, provides the method for appealing from the decision of the board of supervisors in the matter of assessment of taxes. It is there provided, among other things, that "the controversy shall be tried anew in the circuit court at the first term."

The correctness or incorrectness of the ruling of the court on this point depends, as we see it, on the construction of the language of the statute providing that the controversy shall be tried anew in the circuit court. If by trial anew it is meant that the circuit court could and should inquire into the same things that the board of supervisors, when hearing objections to the roll and equalizing the same could have heard and inquired into, then it is clear that the circuit court had the power and should have admitted testimony relative to those items which should properly be assessed and taxed, but which, for some reason, were omitted from the roll. On the other hand, if a trial anew means only that those matters can be inquired into which appear on the roll itself, then the decision of the trial court is sound and should be sustained.

In the case at bar, the circuit judge by his rulings has, in effect defined the issue in the case as being solely a question of the valuation of the particular items assessed by the board and actually appearing on the assessment roll. By what authority he has thus defined the issues in the case, we cannot comprehend. If the attorney-general had appeared before the board, as he had the right to do, and had there filed written objections to the action...