Yazoo & Mississippi Valley Railroad Co. v. Adams

• Decision Date: 02 December 1895
• Citation: 73 Miss. 648,19 So. 91
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. ET AL. v. WIRT ADAMS, STATE REVENUE AGENT, ET AL
• Court: Mississippi Supreme Court

19 So. 91

73 Miss. 648

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. ET AL. v. WIRT ADAMS, STATE REVENUE AGENT, ET AL

Supreme Court of Mississippi

December 2, 1895

October 1895

FROM the chancery court of the first district of Hinds county HON H. C. CONN, Chancellor.

Suit by Yazoo & Mississippi Valley Railroad Co. against Wirt Adams as State Revenue Agent, and the State Railroad Commission to enjoin defendants from further proceeding in the assessment of its property mentioned in the opinion. From a decree dissolving the injunction complainant appeals.

Affirmed.

Mayes &amp Harris, for appellant.

The railroad commission has no jurisdiction to assess railroad taxes back of the year 1892. It was established by the act of 1884 for the supervision of common carriers. Its powers and functions, as defined by the act of its creation, were only such as are ordinarily exercised by a railroad commission. It was not brought in touch with the question of railroad taxation until April, 1892. Prior to that time that function was discharged by a distinct board, composed of the auditor, secretary of state and attorney-general. When it was vested with this function, the power conferred upon it was entirely new and special, and in discharge of it the commission is as distinct a legal entity as if it were a different body of individuals. The legislation on the subject in the code is not incorporated into the chapter on the supervision of common carriers, but is a subordinate feature of the chapter on public revenue, just as it was in the code of 1880. For the purpose of this case, the provisions of the code of 1892 must be taken as the whole law on the subject, and cannot be aided by any reference to the chapter on supervision.

Before this board or any official shall have power to discharge the function of assessing taxes, that tribunal or officer must be able to point out some express statute by which the power is conferred. The language of the code of 1892 is entirely prospective. There is not a single expression authorizing this board to assess taxes anterior to those for the year 1892. In our fiscal system the sheriff, and not the tax assessor, is the assessor of back taxes, and the assessor cannot do it after he has turned his rolls over to the supervisors. The sheriff does it for the reason only that there is an express section in the code giving him that power. This board is nowhere authorized to assess taxes which should have been assessed by somebody other than themselves, before the time when the board was appointed tax assessors. The provisions of the code, §§ 3875 to 3883, do not authorize the commissioners to assess back taxes in any sense, and if the code stood alone and was unaided by the act of 1894, having failed to assess taxes against a railroad during the current year, it would have no power to do so for that year afterwards. The language of those sections clearly contemplates that the thing shall be done during the current year, and does not contemplate that it shall be done afterwards. Section 4 of the act of 1894 relieves this condition. It provides that, if the revenue agent discovers property belonging to any railroad or other corporation which, under the law, is required to be assessed by the state railroad assessors, he shall give the notice otherwise provided for in the act, and then authorizes the railroad assessors to make the assessment. This remedial legislation extends no further than this; it only applies to such property and such assessments as, under the law, are required to be assessed by the state railroad assessors. Its provisions are not directed to property alone, but include, as an element, that it must have been the duty of the state railroad assessors to make the assessment originally. This section confers no authority upon them to make an assessment subsequently which it was not their duty to make originally.

Counsel claimed to deduce this power from § 6 of the act of 1894, which is as follows: "The revenue agent shall have power to sue for, as herein required, delinquent taxes, or taxes that have escaped the assessor and collector, back to and including the year 1886, and no further."

They argued that, as the revenue agent was thereby empowered to have delinquent taxes, back to and including the year 1886, assessed and collected, that section authorized the railroad assessors to make the assessment. This section will bear no such construction. Instead of its being an extension of the power of either the revenue agent or any assessing board or person, it is a limitation of the power of the revenue agent, and it is intended to exclude any inference from the remainder of the statute that he may go back indefinitely. The whole scope of the legislation on the revenue agent was to restrict his power of rooting up old transactions to the year 1886 and afterwards. This section is directed to the revenue agent alone, and is the section which is intended to preserve that restriction. It is a section of restriction and limitation and not of enlargement. But there are other answers to this proposition. If this section be considered as conferring authority direct, attention must be paid to its language. That language is, that the agent shall have power to sue for and collect, and have assessed as herein required, delinquent taxes--that is to say, shall have such taxes assessed in the manner herein required, which is an express reference to the other provision of the statute, and shows that the legislature intended that the assessment should be made in the same manner, under the same restrictions, and for the same reasons as directed in other parts of the statute. It was not intended to enlarge the power of assessment, but expressly to measure it by the other requirements of the statute, which are, so far as the assessment of taxes is concerned, only such taxes as, by the law, the railroad commissioners were required to assess originally.

The supreme court has decided that a statute which, in express terms, attempted to give the power of assessment to the state revenue agent was unconstitutional. Then, how can it be possible that this statute can confer upon the revenue agent to do indirectly what he cannot do directly? If he can compel the board of railroad commissioners, who have no other authority to make such assessment, to make one, and they make it under his requirement, it is clearly his assessment and not theirs. If it be supposed that the railroad commission had power to assess back taxes prior to 1892, this proceeding is not authorized by the statute.

By § 3 of the act of 1894, under which this proceeding is instituted and conducted, the authority given to the revenue agent is expressly limited to those cases in which he discovers that the property has escaped taxation by reason of not being assessed. That is the only condition under which he can move. Whether we have escaped taxation or not, we certainly have not escaped it by reason of not being assessed.

Our bill alleges that, in 1886, and thereafter, the L., N. O. & T. Ry. Co., then the owner of the property in question, accepted and proceeded under § 607 of the code of 1880, and the privilege law of 1884, by which it was provided that any railroad company, instead of submitting to an assessment ad valorem, might account for taxes on a given sum per mile. It is true the answer denies this on information and belief, but the evidence of respondents shows that the arrangement was made. The burden of proof was on the revenue agent to show non-assessment, and he has failed to meet it. Again, the arrangement of § 607, and the act of 1884, is itself a commuted legislative assessment. In that view there was a legislative assessment effected by the understanding with the auditor, and there was no escape from taxation for want of an assessment.

If we are liable for any taxes it is for unpaid privilege taxes, on the basis of seventy-five dollars per mile, to be collected by suit without any further assessment. The act of 1888 is no answer to our proposition, for the reason that it does not apply to the L., N. O. &. T. R. R. Co., because of its exemption as declared in the case of L., N. O. & T. R. R Co. v. Taylor, 68 Miss. 361. That act, on its face, is expressly restricted to railroad companies not having exemptions. If the statute allows of the judicial investigation into the truth of the affidavits made, still that investigation cannot be made by the railroad commissioners. They are merely ministerial officers, and are not invested with any judicial powers. Even the provision in the chapter on railroad supervision, to the effect that their findings of fact shall be prima facie evidence, has no application to this special function with which they are charged, for the reason that it is not embraced in the chapter on public revenue. They are proceeding in this respect under the code chapter on revenue and under the act of 1894, and those statutes alone. Those statutes only authorize them to assess back taxes in case the property has escaped taxation, not for want of payment of taxes assessed, but for want of assessment. The question of assessment is the only one submitted to their investigation. The property must have escaped taxation for want of an assessment, and, to a certain extent, they must look into the question of payment; because, if the taxes have been paid, the property has not escaped taxation, although there may have been a want of assessment. But this board, being a set of purely ministerial officers, and invested with no judicial functions, has no power to go behind the record. When the party who has property that is charged to have escaped taxation, produces the proper voucher for his taxes, under the law this board is concluded on that...