Edward Hines Yellow Pine Trustees v. State Ex Rel. Knox

I dissent from the majority opinion. I think it is in direct conflict with the case of Moller-Vonderboom Lumber Co. v.Board of Supervisors of Attala County, 138 Miss. 289,103 So. 81, and Marathon Lumber Co. v. State, 139 Miss. 125,103 So. 798. Other cases hereafter referred to will show that the court has decided, in a number of cases, that an appeal will only lie from a final judgment, and these cases cited above directly adjudge that where the appeal was taken from the October meeting, where the order of the Tax Commission had been entered, the appeal was proper.

I specially dissent from that part of the opinion which holds that the tax commission can make further changes in the assessment roll, when the roll is made up and sent to it for its final approval after its orders to the board have been entered in accordance with the direction of the tax commission.

In the first case of Moller-Vandenboom Lumber Co. v. Boardof Supervisors of Attala County 135 Miss. 249, 99 So. 823, the court in a well-considered and elaborate opinion, speaking through Judge ANDERSON, then a member of Division A, reviewed the various statutes, and at page 257 (99 So. 824) of the Mississippi report of that case, said:

"The provisions of the statutes necessary to consider in determining the question involved are section 81, Code of 1906 (Hemingway's Code, section 61), in connection *Page 112 with sections 6, 7, 8, 9, and 10 of chapter 323 of the 1920 amendment to the Tax Commission Act (sections 7769d1 to 7769h1, inclusive, Hemingway's Supplement 1921). The first section referred to is a rescript of section 4297, Code of 1906 (Hemingway's Code, section 6931), down to the beginning of the last sentence therein, by which latter it is provided that, where an individual assessment has been increased as much as five hundred dollars, notice shall be sent by mail by the clerk of the board to the person whose assessment is so increased. The next section, which takes the place of section 4296, Code of 1906 (Hemingway's Code, section 6930), which latter is repealed by the Tax Commission Act, provides that any person who is dissatisfied with his assessment may at such August meeting present objections thereto in writing `which shall be filed by the clerk and docketed and preserved with the roll,' and that all persons who fail to file objections shall be concluded by the assessment `and precluded from questioning its validity after its final approvalby the board of supervisors or by operation of law, except minors,' etc. (Italics ours.) The next section requires that not later than September 1st the board of supervisors shall transmit to the state tax commission two copies of the recapitulation of the assessments `as equalized' on forms to be prescribed by the tax commission. And the next section requires that within thirty days after the receipt of such recapitulations of the assessments from all the counties the chairman of the state tax commission shall send instructions in accordance with chapter 98, Laws of 1916 (Hemingway's Code, sections 7761 to 7769, inclusive), as to what percentage shall be added or taken from the assessments of the various classes of property on the rolls in order to establish an equality of assessments throughout the state."

The opinion then sets out the provisions of the Tax Commission Law, and continues:

"It will be observed that section 81, Code of 1906 (Hemingway's Code, section 61), providing for appeals *Page 113 from assessments for taxes, requires that such appeals shall be taken `within five days after the adjournment of the meeting at which such decision is made.' It was held in Madison County v.Frazier, 78 Miss. 880, 29 So. 765, that an appeal would not lie under said section until the judgment of the board approving the assessment had become final, and that such an order was not final until the assessment roll had been approved and the board had adjourned. Certainly great confusion would result if two appeals were intended to be given the taxpayer, one from the interlocutory order entered at the August equalization meeting of the board and the other after the receipt of instructions from the state tax commission. On the other hand, to hold that there is no right of appeal in the taxpayer until after the action of the board of supervisors in carrying out the instructions of the state tax commission would protect both the interest of the public and the taxpayer and do no violence to any provision of the statutes involved. It seems there can be little question that no action taken by the board of supervisors prior to such instructions from the state tax commission in reference to assessments is final."

It will be seen that this opinion directly adjudges that only one appeal can be taken. The concluding paragraph of the opinion reads as follows:

"We hold that only the final order of the board of supervisorscan be appealed from, and that the grant of the right of appeal and the manner in which it is to be prosecuted are regulated and controlled by section 81, Code of 1906 (Hemingway's Code, section 61), and section 10 of chapter 323, Laws of 1920 (section 7769h1, Hemingway's Supplement 1921) construed together. From the Tax Commission Act it is apparent that no final adverse decision to the taxpayer can be made by the board until its meeting at whichthe instructions of the state tax commission for horizontalincreases or decreases are entered by the board of supervisors." (Italics supplied.) *Page 114

This decision was followed by the decision of the case ofWilkinson County v. Foster Creek Lumber Co., 135 Miss. 616, 100 So. 2, in which I wrote the opinion for the court. It was also approved in the case of Knox, Attorney-General, v.Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, although the appeal in that case was taken, as, a precautionary measure, from both the October meeting, at which the tax commission's orders were entered on the minutes, and the November meeting, when the tax roll had been approved by the tax commission and an order entered on the minutes of the board of supervisors showing the same.

In Moller-Vonderboom Lbr. Co. v. Board of Supervisors,138 Miss. 289, 103 So. 81, Division A, speaking through Judge McGOWEN, held that the appeal lay from the order made by the board of supervisors as directed by the tax commission at the October meeting. In that case at the August, 1923, meeting of the board of supervisors of Attala county, a preliminary order was entered as to the assessment of taxes on the lands of the Moller-Vonderboom Lbr. Co., as well as other citizens, from which interlocutory order the Moller-Vonderboom Lbr. Co. prosecuted an appeal to the circuit court, which was dismissed therein, and the order of the lower court dismissing the appeal was affirmed by this court.

On October 3, 1923, the lumber company again presented its objection to the assessment of taxes to the board of supervisors of Attala county, and its objections were disallowed, though no final order, under section 10, chapter 323, of the Laws of 1920, was entered on that date. The final order approving the raise ordered by the tax commission, as provided for in section 10 of said act, was entered on the minutes on October 11, 1923. On October 6, 1923, the lumber company had its appeal bond approved by the clerk, and October 8, 1923, the lumber company again filed its appeal bond, and had same marked filed, referring to an appeal from the order of October 3, 1923. On the 13th day of October, 1923, the *Page 115 lumber company had the appeal bond theretofore filed marked refiled by the clerk of the board of supervisors, and it appears to have been approved on October 6, 1923. The circuit judge dismissed the appeal of the lumber company because the bond was prematurely filed.

At page 294 (103 So. 81) of the Mississippi report of this case the court said:

"Adhering firmly to the opinion rendered by the court, then we are of the opinion here that the appellant attempted to appeal from the order of the board entered at the meeting of the board of supervisors which considered and entered the final order contemplated in section 10 of the above-named act, and that the preparation of the appeal bond in advance of the actual date of entry of said final order made at the same or an adjourned meeting of the board of supervisors, operates to appeal the case from the levy of assessment by the board of supervisors to the circuit court. . . .

"The difference between the case as presented here on this record and the case presented in Moller-Vandenboom Lumber Co. v. Board of Supervisors, 135 Miss. 249, 99 So. 823, is, in this case, an effort is being made to appeal from the final judgment of the board of supervisors, while in the latter case the effort was to appeal from an interlocutory order, and this court held that no appeal would lie under the general statute of appeals; neither would same lie under the special act (section 10, chapter 323, of the Laws of 1920).

"The appeal should not have been dismissed as the appeal bond in this case as fled on October 8, 1923, operated to effectually protect the appellant lumber company in its effort to appeal to the circuit court."

In Marathon Lumber Co. v. State, 139 Miss. 125,103 So. 798, we followed this last case, saying at page 131 (103 So. 709) of the Mississippi report:

"In the recent case of Moller-Vonderboom Lumber Co. v. Boardof Supervisors of Attala County, 138 Miss. 289, 103 So. 81, the court held that an appeal taken from *Page 116 the order made in pursuance of the order of the tax commission by the board of supervisors was proper. In the former appeal in the same case (135 Miss. 249, 99 So. 823) the court held that an appeal would only lie from the final order, giving a construction to the statute which would limit appeals to the final order approving the assessment.

"When the board of supervisors at the August, 1924, meeting overruled the objections and entered the final order approving the rolls in the present case, directing that they be sent to the tax commission under the requirements of law for approval by the tax commission, and where the tax commission makes no order of change whatever, but approves the roll as made up, and this order of the tax commission is directed to be spread upon the minutes of the board of supervisors and is spread thereon, it is a final approval of the roll as far as the tax commission and board of supervisors are concerned, and it is not necessary for the board of supervisors thereafter in such case to make a separate order reapproving the assessment roll itself.

"If the tax commission orders a change, then the assessment is not complete until that change has been made and spread upon the minutes of the board of supervisors and approved by the board. The approval of the roll after such correction by the board would be necessary to show a conformity to the order of the tax commission. But where the tax commission approves without any change its order is the last step in the proceeding, and when its approval is spread upon the minutes of the board of supervisors, the assessment is complete, and the taxpayer may appeal therefrom to the circuit court."

At the time this case of Marathon Lumber Co. v. State, was decided, a number of other cases were decided involving the same question (Du Bois Lbr. Co. v. State [Miss.], 103 So. 800;Eastman, Gardiner Co. v. State [Miss.], 103 So. 800;Arthur J. Cox v. State, 103 So. 800; Gilchrist-Fordney Co. v. State [Miss.], 103 So. 800; Adams-Banks *Page 117 Lbr. Co. v. State [Miss.], 103 So. 800; R.N. Day, Trustee, v. State [Miss.], 103 So. 800), all of which cases, it was stated in memorandum opinions, were controlled by the Marathon Lbr. Co. case. So, in fact, the court has decided seven cases directly in conflict with the holding in the majority opinion in this case.

I think that a study of the powers of the tax commission under the act creating and defining its powers and duties, and the amendments thereto, shows that it was never contemplated that where the board entered the orders upon its minutes as directed by the tax commission, without change or revision, the tax commission when the roll was sent back for approval could make any additional changes. Its powers are exhausted when its first orders are made and placed upon the minutes of the board of supervisors in accordance with its direction. That constituties the assessment. The tax commission has no power to equalize taxes within a county as between individuals, but its functions are confined entirely to equalizing taxes between counties and seeing that the roll is made up so as to contain this equalization. When this has been done, it is the judgment of the assessing authorities assessing the taxes, and the statement in the Marathon Lumber Co. case, quoted above, is precisely correct.