State Ex Rel. v. Wyoming Mfg. Co. , 138 Miss. 249 ( 1925 )

^* Headnotes 1. Courts, 15 C.J., section 340; 2. Taxation, 37 Cyc., p. 116 (1926 Anno.); 3. Statutes, 36 Cyc., p. 1078; 4. Taxation 37 Cyc., p. 1072; 5. Taxation, 37 Cyc., p. 1072 (1926 Anno); 6. Taxation, 37 Cyc., p. 1072 (1926 Anno). This is an appeal from an order of the circuit court dismissing an appeal taken by the attorney-general from an order of the board of supervisors to the circuit court from the assessment for the year 1923. The petition for appeal recites that it is taken under authority of chapter 120, Laws of 1918, and informs the honorable board that the state and county is aggrieved at the action and decision of the said board in the matter of the approval of land assessments of the Wyoming Manufacturing Company as appears on the land assessment rolls of said county for the years 1923 and 1924 as shown in the exhibit to the petition, for the reason that the said assessment is an undervaluation for the purposes of revision so as to give said property a fair and equal assessment thereof, and hereby appeals from the said decision to the circuit court of said county; such issue to be tried anew in the circuit court of said county, etc.

The part of the exhibit referred to is as follows:

"This exhibit shows the page and the line where assessed and the amount of assessment of lands of Wyoming Manufacturing Company on the land assessment roll for 1923 and 1924, from which this appeal is taken, viz.:

Page Line Amount 118 19 20 $22,680.00 118 24 13,880.00 118 32 18,600.00 119 4, 5, 6, 7 22,770.00 119 16, 17 28,480.00 119 29 5,560.00 124 29 960.00 125 9 33,600.00 125 11, 12 19,615.00 125 24, 25, 26, 27 21,645.00 126 5 880.00 126 7 14,620.00 126 18 26,120.00 126 24 9,640.00 127 12 5,480.00 127 20 26,080.00 127 22 24,360.00 127 25 19,160.00 128 2, 3 20,740.00 128 8 4,000.00 128 10, 11 35,380.00 128 15 27,960.00 128 23 11,680.00 ______________ $413,890.00

"Filed November 24, 1923, R.L. McNair, Chancery Clerk.

"Filed November 24, 1923, J.T. Tannihill, Circuit Clerk."

There were two petitions for appeal, the last one filed November 24, 1923, and the first one filed October 19, 1923.

At the October meeting, 1923, of the board of supervisors, there was entered on the minutes of the board an order of the Tax Commission requiring copies of the assessment rolls to be made up in accordance with orders of the Tax Commission. The order was entered by the Tax Commission on September 29, 1923, and a final order of the Tax Commission was entered on the minutes of the board of supervisors on November 6, 1923, finally approving the roll by the Tax Commission and by the board of supervisors. At the December meeting, 1923, of the board of supervisors, the board entered an order reciting that it was informed that the attorney-general had prosecuted an appeal and proceeded to declare that the value placed on the assessment by the board was fair and equal, etc., and repudiated the action of the attorney-general in taking the appeal. The board also requested the circuit court to dismiss the appeal.

A motion was filed in the circuit court to dismiss the appeal on the following grounds:

First. The record shows on its face that the plaintiff has no cause for complaint.

Second. The record shows on its face that the appeal is prosecuted without authority of law.

Third. The statute under which the appeal is prosecuted is unconstitutional.

Fourth. It appears from the face of the proceedings that the alleged assessment is a nullity because the tax assessor did not publish notice of the filing of the rolls as required by law.

Fifth. The appeal cannot be prosecuted because it was not filed within the time required by law.

The assessment roll was filed on the 2d day of July, 1923, and the assessor did not publish any notice to the taxpayers. The board of supervisors adjourned on the 3d day of July, 1923, to the 16th day of July, 1923, at which later day they entered an order reciting that the rolls had been corrected so as to equalize the property of the county in accordance with law, and directed a notice to be published to the taxpayers of the county in a paper published in the county, setting out the notice to be published in full, and the order was entered upon the minutes on said day, and then entered an order adjourning for the term.

The clerk of the board of supervisors inserted a notice in the newspaper designated on the 26th day of July, 1923, in the following words:

"To the Taxpayers of Lamar county, state of Mississippi:

"You will please take notice that the assessment of land and personalty on the rolls for 1923 have been changed and corrected by this board so as to comply with the laws of this state, and that said revised rolls are now open for examination, and that any objections to any assessment contained in said revised rolls must be made in writing and filed with the clerk of this board on or before the first Monday of August, 1923, at his office in the town of Purvis, said county, and that any or all assessments to which no objection is then and there made will be made final. The board of supervisors of said county, by R.L. McNair, clerk of said board: I, R.L. McNair, clerk of the board of supervisors of Lamar county, state of Mississippi, do hereby certify that the foregoing is a true and correct transcript of an order of said board of supervisors, passed on the 20th day of July, 1923, as the same appears on page 155 of Minute Book 5 of said board, now on file in the office of said clerk in the town of Purvis in said county. Witness my hand and official seal, this the 24th day of July, 1923. R.L. McNair, Clerk of the Board of Supervisors of Lamar County, Mississippi."

The first three grounds of the motion to dismiss challenges the right of the attorney-general to take the appeal and the constitutionality of the law, chapter 120, Laws of 1918, insisting, first, that chapter 120, Laws of 1918, was repealed by chapter 323, Laws of 1920, and, if not repealed, that the attorney-general could not appeal under the Laws of 1918, because so to do would be to deprive a taxpayer of his property without due process of law and to deprive him of the equal protection of the laws, because the entire assessment of the county was not appealed from, and as the board of supervisors and tax commissioners had adjudicated that the property of the defendant taxpayer was assessed equally and fairly with the other property in the county in proportion to its value, and that to raise the present assessment of this defendant without equalizing the whole roll would be unfair and an unequal assessment. It is also insisted that the state could not appeal from a judgment assessing this property, because the judgment was favorable to the state and was made by lawful agencies of the state, and that an appeal could not be prosecuted from a favorable judgment.

All of these questions were raised and decided in RobinsonLand Lumber Co. v. Roberson, Attorney General, 126 Miss. 535, 89 So. 160, and it is unnecessary to restate and reconsider these questions here, as we see no reason to overrule that case.

As to the fifth ground of the motion to dismiss, we think the appeal was in time and that the appeal could not be taken until the order of the Tax Commission approving the roll as finally assessed was entered under the authority of Moller-VandenboomLumber Co. v. Attala County (Miss.), 99 So. 823, andWilkinson County v. Foster Creek Lumber Mfg. Co. (Miss.) 100 So. 2.

The attorney-general prosecuted an appeal by the two petitions so as to be sure that an appeal was prosecuted at the right time from the proper judgment. However, the above authorities settled the date at which the appeal could be rightfully taken, and the appeal was prosecuted within the time provided by law.

This brings us to the fourth ground as to whether a notice was required under section 4303, Code of 1906, section 6937, Hemingway's Code, or whether chapter 323, Laws of 1920, supersedes the Code section referred to and thereby repeals it.

The title of chapter 323, Laws of 1920, among other things, defines the purpose of the chapter as follows:

"An act to amend chapter 135 of the laws of 1918, entitled an act to empower the state Tax Commission to furnish the real and personal assessment roll, prescribe the form thereof and to define their duties and relations to its approval and correction; and to define the duties of the tax assessors and boards of supervisors in making filing, approving and correcting such rolls and hearing complaints of property owners," etc.

Section 2 of chapter 323 provides:

"The assessors shall annually assess the rolls and all property subject to taxation in their respective counties. They shall set down in the assessment rolls the names in full of all persons liable to taxation in the county, in alphabetical order; and when there are on the roll more than one person of the same name, the place of residence of each shall be shown, or they shall be otherwise so designated as to identify each and distinguish them. The assessor shall so fill all blanks on such rolls as to disclose clearly and fully each item of information indicated on said roll."

Section 3 of chapter 323 provides:

"Roll — When to be Completed. — The assessor shall complete the assessment and deliver the roll to the clerk of the board of supervisors on or before the first Monday of July in each year. He shall make an affidavit and append it to each roll, showing that he has faithfully endeavored to ascertain and assess all the persons and property in his county, and that he has not omitted any person or thing, or placed upon or accepted an undervaluation of any property, through fear, favor, or partiality."

Section 5 of chapter 323 provides that the board of supervisors shall immediately at the July meeting proceed to equalize such rolls and shall complete such equalization at least ten days before the August meeting, and shall immediately by newspaper publication notify the public that such rolls so equalized are ready and open for inspection and examination. Section 6 of the act provides that the board shall meet on the first Monday of August to hear objections to the assessment and to examine the same, and to hear and determine all exceptions thereto, and to sit from day to day until the same shall have been disposed of, and all proper corrections made; and shall equalize the assessment and may increase or diminish the valuation of any property so as to make property of the same value pay the same tax, and provides that where any individual assessment has been increased as much as five hundred dollars notice shall be sent by mail to the person whose assessment is increased by the clerk of the board of supervisors. Section 7 provides that all objections shall be filed at the August meeting in writing, which written objections shall be filed by the clerk and preserved with the roll, and all persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity after its final approval by the board of supervisors or by operation of law, except minors and persons non compos mentis. The act also provides that by the first of September of each year the board of supervisors shall transmit to the state Tax Commission two copies of the recapitulation of the assessment as equalized, and that the state Tax Commission shall examine the same within thirty days from the receipt of the recapitulation and shall transmit by mail to the boards of supervisors the instructions in accordance with law as to what percentage shall be added to or taken from the assessment of the various classes of property on the roll or rolls to establish an equality of assessments throughout the state, and directs the board of supervisors when they receive such directions to proceed in accordance therewith, and to first correct any errors in their former equalization, and then shall apply the per cent. of increase or decrease as ordered by the state Tax Commission.

Section 4303, Code of 1906, section 6937, Hemingway's Code, reads as follows:

"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 published in the county, or if there be none, then by posting at the courthouse for the space of three weeks, and this shall be notice to all persons of the fact, and of the contents of the roll or rolls so filed; and all persons shall be held to have notice of the time within which to file objections to assessments and of the time when the board of supervisors will hear the same; and of its power to raise assessments thereat."

Section 17 of chapter 323 of the Laws of 1920 repeals certain sections of the revenue chapter and certain acts amendatory thereof, but fails to include section 4303 of the Code of 1906 in the sections specifically repealed.

It will be seen from a careful study of chapter 323, Laws of 1920, and the Code sections therein repealed, and section 4303, Code of 1906, section 6937, Hemingway's Code, that they all pertain to the same subject-matter.

The notice required to be given by the board of supervisors under chapter 323, Laws of 1920, includes all the purposes of the notice required by section 4303, Code of 1906. Under the old law the board of supervisors did not proceed with the equalization of the assessments until the August meeting, but under the present act, chapter 323, Laws of 1920, the board makes the preliminary equalization at the July meeting, at which meeting no action was heretofore taken, but the equalizations and corrections so made at the meeting in July are merely preliminary, and are in the nature of additions and corrections to the assessment roll made and filed by the collector. Such act of the board at the July meeting is not final or binding, and they may be changed at the August meeting in any particular made necessary by the facts then developed so as to bring about an equalization of property.

In other words, the notice provided by section 5 of chapter 323, Laws of 1920, is for the precise purpose and contains all the purposes provided in section 4303, Code of 1906. The scheme is changed to this extent: That the board of supervisors makes a preliminary estimate and correction, either increased or decreased, so as to advise the taxpayer when he appears on the first Monday in August exactly what the board purposes to do with his assessment. It enables the taxpayer prior to that meeting to inspect his assessment and to be able and ready to present his objections and proof without being compelled to attend the whole meeting to see whether or not the board of supervisors intends or proposes to raise or change his assessments.

A statute existing may be repealed without being specifically and directly referred to, where the legislature enacts a new statute covering the field covered by the former act, although there is some difference in the provisions of the two statutes.

In the case of Myers v. Marshall County, 55 Miss. 347, the rule is stated in the following language:

"We regard this act as a revision of the whole legislation on the subject of the fees of the officers embraced in it, and as precluding the assertion of any right on their part not given, or distinctly recognized, by the act. Mobile Ohio R.R. Co. v.Weiner, 49 Miss. 725.

"`A subsequent statute, not repugnant in its provisions to a former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statute.' Swann v.Buck, 40 Miss. 270."

In M. O.R. Co. v. Weiner, 49 Miss. 739, this court held: "The general rule is, that when any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. For it must be presumed that the legislature has declared its entire will, otherwise there must be imputed to them gross carelessness or ignorance. Sedgwick on Statutes, 429. . . .

"The eighth section of the Code [of 1871] was introduced, out of abundant caution to free the subject of all doubt or perplexity, so that it would be easy to determine what were the statute laws of a general nature in force. `If the subjects are revised and consolidated,' then all the parts of former statutes, on the same subject, which are omitted, ceased to operate on the first day of October, 1871."

In Vicksburg v. Sun Mutual Insurance Co., 72 Miss. 67, 16 So. 257, it is said: "It is said in Railroad v. Weiner,49 Miss. 725, adopting the language of the supreme court of Massachusetts, `that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former.'"

In Clay County v. Chickasaw County, 64 Miss. 534, 1 So. 753, it is said: "Here, then, are two statutes on the same subject and for the same purpose, and the last, under which the new county was in fact created, omitting the provision contained in the first, that the new county should receive its proportion of the county and school funds from the old counties. The general rule is that when any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. Where a statute is evidently intended to revise the whole subject treated in a former statute, and to be a substitute therefor, it repeals such former statute, and though there may be a plain casus omissus, the courts cannot supply it. Sedgwick on Con. of Stat. and Const. Law, 365, 366, and note; M. O.R.R. Co. v. Weiner, 49 Miss. 725.

"Without provision being made to the contrary, the new county was not entitled to any part of the county or school funds or other public property which did not fall within its boundaries. They belonged to and continued to be the property of the old counties after the separation. The creation of new counties is a matter within the power and discretion of the legislature, subject only to the restrictions imposed by the Constitution."

When we consider the rules herein announced and apply them to the statutes involved in this controversy, we are driven to the conclusion that the legislature was dealing with the whole subject of the filing, notice, correction, objections, and approval of the assessment roll. It is true the new act gives less time to the taxpayer to examine the rolls than the former acts. But as the board of supervisors has made the preliminary changes and corrections which it deemed necessary to make, the taxpayer has ample time before the August meeting to advise himself as to how his property will be affected.

It is also said that even if section 5, chapter 343, Laws of 1920, is the sole governing law, that the roll is still void because the clerk's notice published in the paper by direction of the board of supervisors recited the entrance of the order as being made on the 20th day of July, 1923, when the board in fact adjourned on the 16th day of July, 1923, and there was no meeting of the board at all on the 20th day of July. It is true the assessor's notice stated that the order was entered on the 20th day of July, 1923, but the notice also referred to the book and page of the minutes of the board of supervisors where the order would be found, and this book and page showed the correct date of the entry of the order to be the 16th of July, 1923, instead of the 20th day of July, so that if the taxpayer inspected the order to which he was referred by the clerk's notice, he would be fully advised in the premises.

It is also said that the notice published on the 26th day of July, 1923, is not sufficient because the section says that the board shall immediately by newspaper publication notify the public, and the proof shows that an issue of the newspaper, in which the notice was published on the 26th day of July, 1923, came out on the 19th day of July, 1923, and that that was the proper issue for the notice to be inserted. The act does not say how many days' notice shall be given the taxpayer. It does require the board of supervisors to complete its work of equalization at least ten days before the August meeting of the board, and that it shall immediately, by newspaper publication, notify the public that the rolls are equalized and ready and open for inspection.

We do not think that the word "immediately" is to be given a restricted and mandatory meaning. It is true that the law intends to give the taxpayer notice as early as practicable, but it does not fix any day when the notice shall be given, nor does it fix any specific number of days that the notice shall be given. If the taxpayer has sufficient notice to enable him to go to the county site and make the examination necessary after the notice has been published, we think that would be sufficient. The word "immediately" in each place in the section is a word of indefinite meaning as is disclosed by the context. It does not mean instantaneously, but is to have a practical interpretation, and means as early as practical.

We do not think the failure to publish the notice on July 19, 1923, makes the notice void. The notice was in fact given more than ten days before the August meeting of the board of supervisors.

We have dealt thus at length with these sections for the purpose of clarifying the law so as to advise the taxing officers of the meaning and purpose of the statute. However, in our opinion, if the roll was void for the want of notice, which it is not here, it would have been the duty of the court to have entertained the appeal and to so adjudge to the end that the proper assessment might be made in the manner provided by law. An appeal from tax matters is tried de novo, and all parties interested may be brought into court by proper process, and if a person is given notice and appears and contests the matter, this person will be bound by the judgment rendered, although the notice required may not have been properly given.

It follows that the judgment of the court below must be reversed, and the cause remanded for proper proceedings in accordance with law.

Reversed and remanded.