I am unable to agree with the opinion just delivered in this case, and will set forth my views with reference thereto. The following agreement of facts was entered into in the court below:
"It is hereby agreed by and between Guy Mitchell, attorney for plaintiff, and W.D. Conn, attorney for defendant, that the case may be tried on the following agreed statement of facts which are hereby agreed to be true and correct.
"(1) That if any assessment or all is found by the court to be proper, it is agreed that the several amounts in pencil shown on the assessments made by the sheriff, and now on file in this cause, are the amounts for which the several assessments should be made.
"(2) That on the assessment rolls for the several years carried by the said assessments, it is shown for all the lands herein, assessed as follows:
"A. Grand total valuation.
"B. Number of acres of uncultivatable land.
"C. Valuation excluding buildings and improvements.
"D. Number of acres of county lands.
"E. Other columns blank.
"And that all said assessments were paid according to assessment.
"(3) That the tax rolls upon which all the assessments were made have the following columns:
"A. Grand total valuation.
"B. Cultivatable land.
"A. Number of acres.
"B. Valuation excluding buildings and improvements.
"C. Valuation of buildings and improvements on county lands.
"D. Timber lands.
"A. Number of acres.
"B. Valuation excluding timber.
"C. Number of thousand feet board measure of timber. *Page 813
"D. Valuation of timber thereon.
"E. Uncultivatable land.
"A. Number of acres.
"B. Valuation, excluding buildings and improvements, of total number of acres of county lands. All other columns not applicable.
"(4) That the clerk may copy the original assessments as shown on the several rolls involved in this suit and file same as a part of the record in this cause.
"(5) That the timber involved in this suit was owned by Dr. Oscar Copeland at the time covered by this assessment; that the said Dr. Copeland under contract was to pay and did in fact pay all assessments made upon the lands upon which this trial involved in this suit was standing.
"(6) It is further agreed that the clerk shall copy all the assessments of the lands involved in this suit as shown by the rolls for the years 1917 and 1918, and for 1919 and 1920.
"(7) That notice of the assessments as required by law was given before the board of supervisors on the assessments involved in this suit.
"Witness our signatures at Iuka, Mississippi, this the 20th day of August, 1924. [Signed] Guy Mitchell, Attorney for Plaintiff. W.D. Conn, Attorney for Defendant."
Section 1, chapter 323, Laws of 1920, amending chapter 135 Laws of 1918, reads as follows:
"That the state tax commission be and they are hereby authorized to furnish each clerk of the board of supervisors with a sufficient number of suitable assessment rolls for assessing the real and personal property in each county, and they are further empowered to have such rolls properly ruled and headed in every particular, and to prescribe the form of such rolls. The rolls must be furnished to the clerks on or before the 1st day of January of each year; but land rolls shall be furnished only in those years when land assessments are made." *Page 814
This section is identical with section 1, chapter 135, Laws of 1918. As I understand, this section gives to the state tax commission the full power to make up the roll in such form as to secure a fair statement of the taxable property of the taxpayer. The form of the roll with the headings, rule etc., is fully authorized, and has the same force and effect as though the legislature itself had prescribed the form of the roll. Of course, the tax commission has nothing to do with whether property is taxable or nontaxable, but they have the duty and are given the power and authority to make up a proper roll for a taxpayer to be guided by in making out his tax returns, and to bring to the attention of the taxing authorities not only the property itself, but every fact and circumstance connected therewith as might affect the knowledge and judgment of the taxpayer and the taxing authorities.
In conformity to this power, the tax commission made up a form in which the name of the owner was listed in one column, division of section or subdivision of land in another, the number of the section in another, the township in another, range in another, column for number of the receipt, column for the grand total valuation of the land, column for the number of acres of cultivatable land, column for the valuation thereof, excluding buildings and improvements a column for the number of acres of timbered lands, a column for the valuation in dollars excluding timber, a column for the number of thousand feet board measure of timber, a column for the valuation of the timber thereon, a column for the number of acres of uncultivatable lands, a column for the valuation of uncultivatable lands excluding buildings and improvements, and other columns, and a total valuation column. This list is made up in such form as to direct the attention of both the taxpayer and the taxing authority to the several separate elements of value.
By section 4264, Code of 1906 (Hemingway's Code, section 6898), it is provided:
"The assessor shall call upon each person liable to taxation of his county for a list of his taxable personal *Page 815 property, either in person or by leaving a written notice at his usual place of residence or business; and each person shall, when required, make out and deliver to the assessor a true list of his taxable personal property, with the value of each article, specifying all such property of which he was possessed on the 1st day of February preceding in his own right, or in the right of his wife, or as executor, administrator, guardian, trustee, or otherwise, rendering separate lists of the property of each. Each list shall be verified by oath, which the assessor is authorized and required to administer to each person, before such person makes out the list of his assessment," etc. (setting forth the oath to be administered).
Section 2, chapter 323, Laws of 1920 (section 2, chapter 135, Laws of 1918), reads as follows: "The assessors shall annually assess the polls 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."
It is provided in this section specifically that: "The assessor shall so fill all blanks on such rolls as to disclose clearly and fully each item of information indicated on said roll."
This section gives effect and makes mandatory upon the tax assessor the duty of filling in each column of the assessment with the information called for by the column. Thus the roll made by the tax commission is specifically and clearly adopted by the legislature, and such roll must have the information called for. If the column is not filled in, the equalizing authorities must assume that the taxpayer has no such property, or that there is nothing in existence which the column called for. If the roll does not indicate the number of feet of timber on the land, it *Page 816 is not brought into view of the taxing authorities. If the taxpayer does not list his timber on the blanks furnished him and does not place the value thereon, the taxing authorities have the right to assume that he has no timber thereon of commercial value. It is presumed in law that the taxpayer has listed everything required of him to be listed which he possesses. The assessor may rightfully assume, in the absence of personal knowledge, that the taxpayer has no such property as the column called for.
In the case before us it was the duty of the taxpayer to list his estimated timber on his lands in the appropriate column and to place his estimate of the value of the timber in the appropriate column therefor. When he does not do so, he has not listed his property as required by law, and nothing is brought by law to the attention of the taxing authorities, and consequently they are not called upon by the roll to adjudicate the value or existence of property not indicated upon the roll. Of course, if any of the taxing authorities know of such property, they may list it in the appropriate column and place their estimate of value thereon, but they are not called upon to value timber unless timber is listed. It is manifestly impossible for either the assessors or the board of equalizers to know what each acre or subdivision of land in the county contains, or what the character of such land is. It would be manifestly impossible for the assessor and board of equalizers to personally go upon and estimate and inspect each acre of land or each subdivision of land to see whether it had timber growing thereon, or not. The law imposes the duty upon the taxpayer to disclose his property under oath. The assessor and the board have the right to assume that he has truly listed his property, and no judgment can beres adjudicata where the pleadings, or what may be in lieu of pleadings, do not state the facts calling for adjudication. The decision rendered in this case is contrary to the principles underlying our decisions in the past. *Page 817
In Darnell v. Johnson, State Revenue Agent, 109 Miss. 570, 68 So. 780, it was held that where the assessment roll did not disclose the facts called for by the columns of the assessment roll, that such property was not embraced in the judgment, and that timber omitted from the roll was not in fact assessed. Certainly the roll we have before us is a legal roll. The legislature has expressly authorized the tax commission to make up the roll, as the tax commission thinks proper to elicit the necessary information for the proper taxation of property. The taxpayers and the taxing authorities are required to use the roll so made up, and to fill in in the appropriate column whatever information is called for thereby.
In Adams, Revenue Agent, v. Clarke, 80 Miss. 134, 31 So. 216, it is held that the approval of an assessment by the board of supervisors is not conclusive that the taxpayer has listed, or that the roll contains all of the taxable property owned by him. Such approval, under the law, as it then existed was an adjudication of the property listed as to its value. The approval of a tax assessment, so far as respects res judicata rests upon the same basis as other judgments, and he who claims the approval as res judicata must show that all of his taxable property was passed upon by the board of supervisors; that property not brought to the attention of the board is not assessed at all by a judgment approving an assessment of other property. There are numerous other cases, involving back assessments, which hold that if the property is not listed on the roll that it is not assessed by the roll, and that it may be back assessed.
The present decision, as I think, is a total departure from these principles. The taxing statutes should be construed so as to promote fairness rather than to promote fraud. It is wholly unfair to the taxpayer who lists his property, complying with the law in giving the elements of value that enter into it as called for by the blanks furnished him and by the assessment roll, to permit a person who withholds his property, or withholds the elements of value called for by the tax blanks and tax rolls, *Page 818 to wholly escape his fair and just share of the common burden of taxation. When a back assessment is made, it is like any other assessment to be treated in valuing it not only as to its actual value, but as to its value compared to the assessed value of other property in the county of his residence. The back assessment must be treated as though it was an original assessment, and its value equalized with the assessed value as well as the actual value of the property in the county.
In the case before us, the value of the timber has wholly escaped assessment because the taxpayer knowingly and fraudulently withheld the information called for, and, by so doing, escaped a proper assessment, is given an immunity bath, and is permitted to profit by his fraud.
COOK and HOLDEN, JJ., concur in this dissent.