Yazoo Delta Lumber Co. v. Eastland

• Decision Date: 14 April 1913
• Citation: 104 Miss. 553,61 So. 597
• Court: Mississippi Supreme Court
• Parties: YAZOO DELTA LUMBER CO. v. D. M. EASTLAND

61 So. 597

104 Miss. 553

YAZOO DELTA LUMBER CO. v. D. M. EASTLAND

Supreme Court of Mississippi

April 14, 1913

March 1913

APPEAL from the chancery court of Sunflower county, HON. E. N THOMAS, Chancellor.

Suit by the Yazoo Delta Lumber Company against D. M. Eastland, From a judgment for defendant, plaintiff appeals.

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

Affirmed.

Frank E. Everett, for appellant.

First this testimony of Weissinger, is competent. It explains the manner in which the assessment of the lands of the county was made in 1906. It does not impeach or tend to impeach his official acts but simply explains how the assessment was made. See Brothers v. Beck, 75 Miss. 486, in which case this court held Dan McCaully, the tax assessor, a competent witness to testify as to how his assessment roll was made, completed and returned, not in express terms, but by commenting on the testimony of that witness, after a motion was made in the lower court to suppress his testimony. To the same effect see Mullins v. Shaw, 77 Miss 900. See also Stevenson v. Reed, 90 Miss. 344, where the court held Miller, the sheriff who sold the land, at tax sale, a competent witness to explain how the land was offered and sold. See also Wood v. Ins. Co., 7 Howard, 632; Clevenger v. Mixon, 74 Miss 74; 1 Wigmore on Evidence, secs. 529, 530 and 531.

At the time this assessment was made in 1906 the Code of 1892 was in force and effect. Section 3772 of the Code of 1892 provides that, "Land shall be assessed according to its intrinsic value, to be judged by the owner or person having possession or charge thereof, under oath, taking into consideration the improvements, the proximity to navigation, to a railroad, to a city, town, village or road, or any other circumstances which tends to enhance its value, and not at what it might bring at a force sale, but what the owner would be willing to accept and expect to get for it if he were disposed to sell it."

Section 112 of the Constitution of Mississippi adopted in 1890 provides that, "Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value."

This is the way the law requires lands to be assessed. How else could they be assessed other than according to the strict provisions of the Constitution and the statutes? How can an assessment be made so as to make "taxation uniform and equal" and tax property "in proportion to its value?" The testimony of Weissinger shows how the lands in Sunflower county were assessed and placed on the land rolls in 1906. That the assessment was made in pursuance to an understanding between himself and the board of supervisors prior to the making of the assessment by him, and this agreement was that "all wild lands should be assessed at three dollars per acre and all cleared lands should be assessed at ten dollars per acre." clearly in controvention of the statute and the Constitution. I submit that this mode of arriving at the value of lands and this mode of assessing land in a county, is equally as void and repugnant to the Constitution as the act of the legislature in 1888, which act undertook to classify lands of the state and to place them in eight different classes and to place a value thereon, assessing by legislative enactment and valuing the various classes of lands, leaving nothing for the assessor to do but to determine the class to which each piece belonged. The same principle is involved in this case, except, in the act of 1888, the assessor could arrive at a more just assessment than in this case. For there, he could place each piece of land, regardless of its location, in the class to which such land belonged. If one forty-acre tract was fertile and productive and improved and another forty-acre tract was worn, hilly and nonproductive, he could exercise his discretion in classifying the lands and cause the fertile land to be assessed at its value and the unproductive land to be assessed at its value, thereby reaching a more equal assessment according to value. But in the present case, under the instructions of the board of supervisors, which body finally had to pass upon the assessment returned to them by the assessor, in order to avoid that work which the law enjoins upon them to raise or lower property and equalize the assessment after the rolls are made, both the assessor and property owners are robbed of that duty enjoined upon them by law and the property is, by these instructions of the board of supervisors, assessed at an arbitrary valuation, assessing lands worth fifty dollars per acre at the same rate of those worth only one dollar per acre, regardless of location, value, improvements or other advantages. If the legislature could not divide the lands of the state into eight classes and place a statutory value on each class, then how can the board of supervisors and the tax assessor classify the lands of a county into two classes and place an arbitrary value thereon, regardless of the location and value of the property? Surely such a classification and valuation by the assessor and the board of supervisors will render the assessment void, and under such an assessment, the tax collector is without power to sell the property for taxes.

In considering the same question that is presented by this record, that, is, classification and valuation of property, Governor Stone, the greatest of Mississippi's governors, said in his message to the legislature in 1892:

"Value depends on many things. It varies greatly with circumstances, even in the same localities, and to place groups of counties and millions of acres of land by arbitrary enactment in prescribed classes, with a valuation of each prescribed by statute, without regard to what may be the true value, would be a plain disregard of the constitutional provisions of this important subject."

This court, speaking through Justice CALHOUN, in the case of Hawkins v. Mangus, reported in the 78 Miss. 105, declaring the act of 1888 unconstitutional, said in part:

"This act does not admit of taxation of 'all property in proportion to its value,' as the Constitution requires, but adjusts it according to the opinion of the assessor, not of its real value, but as to what general class it ought to be put in. . . . Valuation must be actual, not artificial; by particulars, not by groups. A system of averaging values by classes, or geographical distribution, cannot result in equality and uniformity of taxation in 'proportion to value.'"

I therefore submit there is no difference in classification and valuation when fixed by legislative enactment and that fixed by the joint acts of the board of supervisors and the tax assessors. If one is illegal and void, it follows the other is illegal and void. If one is unconstitutional, it follows that the other is unconstitutional. For the board of supervisors, together with assessor, to undertake an equalization of the assessment of the property of the county before the assessment is made and the rolls turned over to the board for their correction is but to violate the law of the land. Section 4297 of the Code of 1906 and section 4 of the chapter 120, Laws 1900, provides that the board shall meet on the first Monday in August of each year and that the assessor shall attend the meeting; and that the board shall examine the rolls and hear and determine exceptions; "and the board shall equalize the assessment and may increase or diminish the valuation of any property so that property of the same value be assessed for an equal sum."

For the board to undertake to pass an arbitrary valuation on lands before the assessment is made and the assessment rolls delivered to it for its consideration as required by statute, is only to undertake to exercise authority repugnant to both the statutes and the Constitution and therefore renders an assessment so made void and of no effect.

Tim E. Cooper for appellee.

The appellant's whole case rests upon the proposition that he can collaterally attack the judgment of the board of supervisors approving the assessment roll under which the land was sold by proving matters in pais, and going only to the evidence upon which the final judgment of the board rested. It is only necessary to look at the statute to see how clearly it covers the contention of the appellant.

Section 4296 of the Code provides that after the assessment rolls are returned, they shall remain on file and be subject to objections for two weeks after being filed. It then proceeds: "A person who is dissatisfied with the assessment may, within such time present his objections thereto in writing and which shall be filed by the clerk and docketed and preserved with the rolls. All persons who fail to file objections shall be concluded by the assesment and precluded from questioning its validity after its approval by the board of supervisors or by the operation of law, except minors and persons non compos mentis."

There have been numerous decisions of this court upon this statute, which have appeared in many of our codes. In Brooks v. Shelton, 47 Miss. it was held that a taxpayer who had failed to pursue the statutory remedy of appearing before the court, as provided by section 4296 and of appealing from the judgment of the board as provided by section 4310, could not have relief in equity.

In the case of Horne v. Green, 52 Miss. , it was held that the action of the board of supervisors was conclusive as to "irregularities and matters of fact resting wholly in pais; such, for instance, as excessive valuation misdescription, listing of property to the wrong person and the like. It was then said that the board of supervisors had no jurisdiction to determine upon the validity of exemptions claimed under general...