State ex rel. Knox v. Wyoming Mfg. Co.
Decision Date | 26 January 1925 |
Docket Number | 24578 |
Citation | 103 So. 11,138 Miss. 249 |
Court | Mississippi Supreme Court |
Parties | STATE ex rel. KNOX. Atty. Gen., v. WYOMING MFG. CO. [*] |
Suggestion of Error Overruled March 9, 1925.
APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.
Action by the state, on the relation of Rush H. Knox attorney-general, against the Wyoming Manufacturing Company. From an order of the board of supervisors of Lamar county approving land assessments of the Wyoming Manufacturing Company, the attorney-general appealed to the circuit court and from its order dismissing the appeal, he appeals. Reversed and remanded.
Judgment reversed, and cause remanded.
Hathorn & Williams, for appellant.
One ground of the motion is that the record shows on its face that the appeal is prosecuted without authority of law. The appeal itself states that it is prosecuted under chapter 120, Laws of 1918; and, this court held specifically in Lumber Co. v. Roberson, 89 So. 160, that the attorney-general is authorized to take such appeal under this statute. In Lumber Co. v. Roberson, this court held that chapter 120, Laws of 1918, granting the right of appeal to the attorney-general, is not in violation of the Constitution.
Another ground of the motion is that the appeal cannot be prosecuted because it was not filed within the time required by law. The statute, chapter 120, Laws of 1918, under which the appeal is prosecuted provides three stages for making the appeal by the attorney-general. (1) Within twenty days after the adjournment of the meeting of the board at which the decision is made from which the appeal is desired; (2) or within twenty days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the state Tax Commission; (3) or within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the state Tax Commission is entered. It will be observed by reference to the record that two appeals, in identically the same language and form, were prosecuted by the attorney-general from the assessment of the appellee.
The first appeal was taken on October 19, 1923, which was within twenty days after the adjournment of the meeting of the board at which the assessment rolls were corrected in accordance with the instructions of the state Tax Commission, said rolls having been corrected at the October, 1923, meeting, and the board having adjourned on the 3rd day of October, 1923. Afterwards, and on November 24, 1923, the second appeal, identical in form and substance with the first was taken. This appeal was taken within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the land rolls by the state Tax Commission was entered, said order of approval having been entered on November 6, 1923, and the board having adjourned on November 7, 1923. It, therefore, appears affirmatively from the record in this case that the appeal was prosecuted within the time allowed by law, which disposes of the fifth and the last ground of the motion to dismiss.
The entire argument of counsel for appellee is predicated upon the propositions that section 4304, Code of 1906, section 6937, Hemingway's Code, is still in force and effect, and must be complied with in order to make the assessment roll valid. They freely admit that if this statute has been repealed by chapter 323, Laws of 1920, either expressly or by implication, their contention is unsound and the roll is valid. Then they proceed to the argument that the statute is not expressly repealed by chapter 323, Laws of 1920, and argue further at great length that it is not repealed by implication. They cite many authorities to the effect that repeals by implication are looked upon with disfavor by the courts.
We shall not be drawn into a discussion of the general propositions of law presented in their brief; but, we earnestly insist that those authorities and their argument do not apply to the case at bar.
By reference to section 4303, Code of 1906, it will be observed that "when the assessor returns and files the assessment rolls in the office of the clerk of the board of supervisors, he shall give notice thereof, and the date of the meeting of the board to consider the same by publication in some newspaper in the county, or if there be none, then by posting at the court house for the space of three weeks." In other words, under the requirements of this section, the assessor must file his roll, and is required to file his roll on the day fixed by law, and when this is done he is required to give notice of the filing as well as of the date of the meeting of the board to consider the same for the space of three weeks.
By section 3, chapter 323, Laws of 1920, the assessor is given until the First Monday of July to complete and deliver his roll to the clerk of the board of supervisors. In fact, the record in the case at bar shows that the assessor did file his roll with the clerk of the board of supervisors on Monday, July 2, 1923. By section 5, chapter 323, Laws of 1920, the board of supervisors is required immediately at the July meeting to proceed to equalize the rolls; and is required to complete such equalization at least ten days before the August meeting and is further required to give notice by newspaper publication to the public that such rolls as so equalized are ready and open for inspection and examination.
So that, we have section 4303, Code of 1906, if still in force, which requires the assessor, after filing his roll on the First Monday of July, as required by section 3, chapter 323, to give three weeks' notice by publication or posting at the court house to the public of the fact that he has filed the roll and of the date of the meeting of the board to consider the same. Whereas, by section 5, chapter 323, Laws of 1920, the board is required immediately, after convening on the First Monday of July (the same day on which the roll is filed), to proceed to equalize the rolls, and is required to complete such equalization at least ten days before the August meeting.
It is, therefore, seen that it would be a physical impossibility for the assessor to give the three weeks' notice of the time of the meeting of the board to consider the roll, as required by section 4303, Code of 1906, between the time fixed by law for the filing of his roll, which is the First Monday in July, and the time fixed by law for the board to consider the same, which is, also, the First Monday in July. We submit, therefore, that there is a clear-cut conflict between section 3 and section 5 of chapter 323, Laws of 1920, and section 4303, Code of 1906, in this respect; and since it clearly appears that section 4303, Code of 1906, is in conflict with section 3 and 5, chapter 323, Laws of 1920, it necessarily follows that section 4303 is expressly repealed by the provisions of section 17, chapter 323, Laws of 1920.
On the oral argument of this case the point was made by counsel for appellee that the review of the assessment rolls by the state Tax Commission and the entry of its order approving the same as being equal and uniform with values of like property in other counties throughout the state constitutes an adjudication that the property of each taxpayer on the roll, including appellee, has been finally determined to be equal and uniform with that of all other taxpayers; and that, therefore, to permit an appeal to be taken from an individual assessment, as in the case at bar, would be to deny to appellee its constitutional guaranty of equal and uniform taxation. By permission of the court, we were permitted to make a short reply to this argument and especially to comment thereon in the light of Darnell v. Johnson, 109 Miss. 570, 68 So. 780.
By reference to the copy of the assessment appealed from, which is filed in the record, it will be noted that an appeal was taken from the assessment of about eight thousand four hundred acres of timbered land whereon appellees had been assessed with an estimated number of about forty-four million feet of merchantable timber. This shows an average of about five thousand feet of timber per acre. So that, the question of the number of feet per acre on the land enters vitally into the question of whether or not the assessment of this taxpayer is equal and uniform with the assessments of other taxpayers, since the record shows that the stumpage valuation per thousand feet of the timber is uniform.
In the Darnell case, supra, this court held that the assessment of any amount of timber on wild land becomes res adjudicata of the amount and value of the timber thereon unless appealed from, irrespective of the question of whether the estimate and the stumpage value is correct or approximately so. In other words, the effect of this decision is to hold that even though the land might have ten thousand feet per acre worth five dollars per thousand, and is assessed with only one thousand feet per acre at five dollars per thousand, yet unless appealed from, the assessment is final. In such an assessment, it is readily seen that the public would suffer by a difference of forty-five dollars per acre on the land because of an under valuation. So that, where timber had been underestimated or where properly estimated and undervalued, it becomes very important to the public to have this question inquired into and to that end for the attorney-general to make an appeal for the purpose of such inquiry.
Again in the very nature of things, the examination and passing upon the rolls by the state Tax Commission could not, with more than eighty counties to consider within the brief space of a few weeks, be more than an...
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