Vicksburg Bank v. Adams

• Decision Date: 11 January 1897
• Citation: 21 So. 401,74 Miss. 179
• Court: Mississippi Supreme Court
• Parties: VICKSBURG BANK v. WIRT ADAMS, STATE REVENUE AGENT

21 So. 401

74 Miss. 179

VICKSBURG BANK v. WIRT ADAMS, STATE REVENUE AGENT

Supreme Court of Mississippi

January 11, 1897

October 1896

FROM the circuit court of Warren county HON. W. K. McLAURIN Judge.

This suit had its origin in the effort of the state revenue agent to collect from the bank taxes due to the city of Vicksburg for the years 1886, 1887, 1888, and 1889, and which he claimed the bank had wrongfully escaped. Section 3, of chapter 34, laws of 1894, p. 29, under which the revenue agent acted, is in the following words, viz.: "After the expiration of the fiscal year in which taxes become due should the revenue agent discover that any person corporation, property, business, occupation, or calling has escaped taxation by reason of not being assessed, it shall be his duty to give notice to the tax collector in writing, and the collector shall, within ten days thereafter, make the proper assessment by way of an additional assessment on the roll or tax list in his hands, and give ten days' notice in writing, to the person or corporation whose property is assessed, and all objections to such assessments shall be heard at the next meeting of the board of supervisors of counties, or board of mayor and aldermen of municipalities. The board of supervisors or mayor and aldermen shall also be notified in writing by the collector of said assessment, and the state revenue agent may appear at said meeting, and an appeal to the circuit court may be taken from the order of the board approving or disapproving such assessment by either party. If the assessment be approved, and no appeal be taken, and the taxes shall not be paid within thirty days thereafter, the property, if it be real estate, shall be ordered sold as provided by § 3850 of the annotated code of Mississippi, and if it be personalty, the tax collector shall proceed to collect by distress or otherwise. If the tax collector shall fail or refuse to make an assessment and report the same as herein required, he shall be liable on his bond for the amount of taxes properly collectible and ten per cent. damages thereon. If the assessment rolls be in the hands of the assessor at the time the revenue agent makes discovery of property which has escaped taxation, he shall give the required notice to the assessor, who shall make the proper assessment and give the required notices to the owner of the property and to the board of supervisors or mayor and aldermen, under like penalties for failure as provided against the collector, and like proceedings shall be had. When any taxes shall be collected under assessments made as herein required, the revenue agent shall receive therefor, at the time of collection, the same compensation allowed him by law for other collections." Acting upon this statute, the state revenue agent gave the following notice to the city tax assessor and collector (the same person held both offices), viz.:

"NOTICE TO ASSESS.

"To the Assessor and Collector of the City of Vicksburg, Miss.:

"You will take notice, and you are hereby notified, that the following described property in your said county, to wit: Vicksburg Bank, belonging to and owned by E. S. Butts, president, and H. C. Kuykendall, vice president, et al., has escaped taxation during the years of 1886, 1887, 1888, 1889, by reason of its not being assessed.

"You are, by virtue of an act of the legislature of the state of Mississippi, approved February 7, 1894, entitled 'An act to provide for the election of a state revenue agent, to prescribe his powers and duties, and to repeal §§ 4187, 4190, 4192, 4193, and 4195, ch. 126, annotated code of Mississippi, ' now notified and required to, within ten days hereafter, make the proper assessment of said property by way of an additional assessment on the roll or tax list in your hands, and to give ten days' notice, in writing, to said E. S. Butts, president, et al., whose property is so assessed, and also notify, in writing, the mayor and board of aldermen of the city of Vicksburg of said assessment.

"Herein fail not, under penalties imposed by said act.

"Witness my signature, this nineteenth day of May, 1894.

"WIRT ADAMS, State Revenue Agent."

In pursuance of this notice, the city assessor and tax collector made the following assessment, viz.:

PERSONAL.

ADDITIONAL ASSESSMENT AS PER NOTICE OF WIRT ADAMS, REVENUE AGENT OF THE STATE OF MISSISSIPPI, FILED WITH ME MAY 19, 1894. SAID NOTICE HERETO ATTACHED ON OPPOSITE SIDE OF BOOK.

NAME OF

Building

Stocks

PERSON,

and

Horses,

or

CORPO RATION,

Improve-

Wares

Mules,

other

SOCIETIES,

ments

Clocks, Gold

and

Cattle,

Bonds

PARTNER-

Separate

Watches,

and

Mer-

She ep,

Vehicles

other

SHIPS OR

from

Jewelry,

Silver chan-

and

of all

than

No.

FIRMS TAXED.

Lands.

etc.

Plate

dise

Hogs.

Kinds

U.S.

Vicksburg

Bank for

1886

$ 75, 000

Vicksburg

Bank for

1887

75, 000

Vicksburg

Bank for

1888

75, 000

Vicksburg

Bank for

1889

75, 000

And gave proper notices thereof, under the statute.

The matter was thus brought before the municipal authorities of the city of Vicksburg, where the bank objected to the additional assessment, specifying the following objections:

1. Said assessment was not made in a legal manner or by a person authorized by law to make it.

2. Said bank is not subject to be so assessed, or assessed at all, for any one or more of said years.

3. Said property has not escaped assessment or taxation for said years, is not liable to be assessed now, is not in existence, the money was not out at interest, the property was not loaned money, the valuation is excessive.

4. The law under which said assessment was made is unconstitutional and void. Acts of 1894, p. 29.

5. Said assessment is the act of the state revenue agent, and not the constitutional assessor.

6. Said assessment was made under and by virtue of the order and directions of the state revenue agent, and not by the assessor and tax collector voluntarily, as his official act within and from a sense of official duty, but under fear and threats produced and made by said revenue agent, that he would be harassed by suits on his official bond if he refused; and did so also to avoid a possible liability on his said bond if he failed to obey the said orders of said state revenue agent; and said assessment was made without any knowledge on the part of the collector or assessor as to the facts on which it is based. Said revenue agent had no authority to give such notice to the assessor and collector before the end of the present fiscal year.

7. The passage of the act providing for the election of the state revenue agent (Acts of 1894, p. 29), was not in accordance with § 71 of the constitution of Mississippi, so far as it provides for the present incumbent holding said office, and so far as it provides for assessments to be made as therein enacted.

8. Said bank was assessed for the years 1886, 1887, on February 15, 1894, by said assessor and collector before notice from said revenue agent for him to so assess on said capital stock, and such assessment has been or will be returned with the general assessment of property for the year 1894 by said assessor and collector, and said bank paid the privilege tax, as provided for by law, for the years 1888 and 1889 in lieu of all the taxes.

9. The said notices are insufficient in law.

10. Said bank objects to said assessment as wholly unwarranted by the law or the facts, and upon other grounds, to be stated on the hearing.

The matter was heard by the municipal authorities, and the additional assessment was disapproved, and the state revenue agent appealed to the circuit court.

The defenses made in the circuit court by the bank were, that for the years 1886 and 1887 it had paid a privilege tax, and it had been assessed upon its capital stock and paid its taxes thereon before action by the revenue agent. The assessment shown for said years, and which the bank offered to introduce in evidence, was also an additional assessment, and it was made in 1894, and was as follows:

PERSONAL ROLL.

NAME OF PERSON

Buildings

Clocks,

Gold

Wares

Horses, Mules

CORPORATION,

and

Watches,

and

and

Cattle, Sheep,

SOCIETY,

Improvements

Jewelry,

Silver

Merchandise.

and Hogs.

PARTNERSHIP

Separate

etc.

Plate.

OR FIRM

from Lands.

TAXED.

Bank of

Vicksburg

for 1886

Bank of

Vicksburg

for 1887

NAME OF PERSON

Vehicles

Stocks

Moneys

Notes,

Household

CORPORATION,

of all

or Bonds

on Hand,

Bills,

Furniture

SOCIETY,

Kinds.

other

on Deposit

Obligations,

Exceeding

PARTNERSHIP

than

or at

etc.

$ 250.

OR FIRM

U.S.

Interest.

TAXED.

Bank of

Vicksburg

for 1886

$ 10, 000

Bank of

Vicksburg

for 1887

10, 000

NAME OF PERSON

Pianos,

Miscellaneous.

Total of

Amount

Remarks.

CORPORATION,

Melodeons,

Personalty.

of Tax.

SOCIETY,

and

PARTNERSHIP

Organs.

OR FIRM

TAXED.

Bank of

Vicksburg

for 1886

Bank of

Vicksburg

for 1887

This assessment had been duly approved by the proper authority. The bank offered to show, by parol, in connection with said roll, that the $ 10, 000 upon said assessment for said years, 1886 and 1887, was not, as shown by the roll, "money on hand, on deposit or at interest, " but was its capital stock, and that it had paid its taxes on said assessment. The court below excluded this evidence, but permitted the revenue agent to show that the $ 75, 000 on the assessment, the correctness of which was the subject of litigation, was capital stock, and not "horses, etc."

The defense for the years 1888 and 1889 was, that the bank had paid a privilege tax for said years, under the act approved March 8, 1888 (Laws, pp. 15, 16). Under this act, the privilege tax exempted the bank from ad valorem taxes, but there was no such...