Opinion
No. 31902.
January 6, 1936.
1. TAXATION.
Statute relating to assessment of lands for taxation held to require separate assessment of timber on land given in for assessment, as against contention that requirement of separate assessment referred only to assessment by sheriff on land not given in by owner, in view of subsequent statutory requirement of separate assessment of land and improvements in separate ownership (Code 1930, secs. 3145, 3146).
2. TAXATION.
Assessment of land given in for assessment without assessment of timber thereon held not adjudication by board of supervisors that there was no timber on land, or that timber thereon was of no value, so as to preclude assessment of timber for back taxes (Code 1930, sec. 3145). (See syllabus on suggestion of error.)
3. TAXATION.
On appeal of tax assessment, court, in approving assessment, should have set aside order of board of superviors assessing property in so far as it fixed amount and value of timber which was different from that agreed upon by parties at trial, and should have entered order fixing amount and value of timber according to agreement of parties (Code 1930, sec. 3145).
ON SUGGESTION OF ERROR. (Division A. May 25, 1936.) [168 So. 258. No. 31902.]TAXATION.
Approval by board of supervisors of original assessment of land as uncultivatable, with no land appearing thereon as timbered land, held adjudication that land contained no taxable timber, precluding asssessment of timber for back taxes.
APPEAL from circuit court of Forrest county. HON.W.J. PACK, Judge.
T. Price Dale, of Hattiesburg, and Davis Davis, of Purvis, for appellant.
It is the contention of appellant that the assessment of appellee's timber made by the tax assessor is considered and must be treated as prima facie correct. If the assessment made by the tax assessor is to be considered and treated as prima facie correct, then the burden was on appellee to proceed with the evidence in the circuit court in order that he might show that the assessment was not correct.
Sullivan v. State, 110 Ala. 95, 20 So. 452; Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741; Knox, Atty.-Gen. v. Dantzler Lbr. Co., 148 Miss. 834, 114 So. 783.
It is the contention of the appellant that chapter 58, Extraordinary Session of the Legislature of 1928 is mandatory and requires that all timber, buildings and improvements, or other elements of value, in all cases, are required to be separately valued and assessed.
Section 1, chapter 58, Extraordinary Session of the Legislature of 1928, is brought forward as section 3145, Mississippi Code of 1930.
The land involved in this suit is timbered land within the meaning of these statutes. It is admitted that the land had one million one hundred fourteen thousand, five hundred eighty-three feet of timber on the lands involved for each of the years; it is also admitted that this timber was of the value of three dollars and fifty cents per thousand feet, making a total value of three thousand, nine hundred ninety-five dollars and fifty-four cents for each of said years.
It is admitted that the tax list furnished by the appellee to the tax assessor failed to show this timber; the tax assessor failed to make the assessment of the land with the proper classification thereof, including the omitted timber, so that, the timber in this case was omitted from the assessment roll and, therefore, not assessed or valued. It was not returned by the taxpayer, neither was it assessed on the assessment roll by the tax assessor. It was one of the omitted things which the statutes required to be assessed separately from the land.
Adams, State Revenue Agent, v. Clarke, 80 Miss. 134, 31 So. 216; Miller, State Revenue Agent, v. Copeland's Estate, 139 Miss. 788, 104 So. 176.
It is a rule too well established to take up the time of the court in citing authorities in support thereof, that where a statute has been enacted by the Legislature of a state and the Supreme Court of the state has placed a construction thereon while the statute was in force, and the statute is thereafter reenacted by the Legislature, the reenactment of the statute carries with it and as a part of it, the construction placed thereon by the Supreme Court. We earnestly insist that the enactment of chapter 58 of the Extraordinary Session of the Legislature of 1928 was for all intents and purposes a reenactment of chapter 89 of the Laws of 1912, which had been repealed by chapter 135 of the Laws of 1918, and that the Supreme Court having construed chapter 89 of the Laws of 1912 to require that timbered land should be assessed so as to separately show the number of acres of land and the value thereof, and the number of feet of timber thereon and the value thereof, that chapter 58, Extraordinary Session of 1928 and section 3145, Mississippi Code of 1930, should be given the same construction.
In the construction of statutes the controlling purpose is to ascertain and give effect to the intention and purpose of the Legislature, and this intention and purpose is to be deduced from the whole and every part of the statute taken together — from the words and context — and such a construction adopted as will best effectuate the intention of the lawgiver.
Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; State v. Wheatley, 113 Miss. 555, 74 So. 427; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Henderson v. Blair, 102 Miss. 640, 59 So. 856; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886.
T. Price Dale, of Hattiesburg, and Davis Davis, of Purvis, for appellant on suggestion of error.
The construction placed on section 3145, Mississippi Code of 1930, by this court in this case requires buildings, improvements and timber in all cases to be separately valued and assessed. The timber on the land in the case at bar has not been assessed in accordance with this statute as interpreted by this court.
Section 3193, Code of 1930.
Appellee claims that the land having been assessed in the column for uncultivatable land the judgment of the board of supervisors was a final adjudication of the fact that the land had no timber thereon, and, therefore, even though the land did have timber thereon, the timber cannot now be back assessed. Under the facts in the case at bar it is the contention of the appellant that the timber growing on the land not being shown on the assessment roll, but being expressly excluded therefrom, the timber was not before the board of supervisors, and could not have been considered by them, and that the decision of the board of supervisors in the very nature of things cannot be res adjudicata as to the timber growing on the lands and its value.
Since the decision in the case of Miller v. Copeland's Estate, the Legislature has enacted chapter 58, Extraordinary Session of the Legislature of 1928, which has been brought forward as section 3145, Mississippi Code of 1930, and this section has been construed, by this court, in the case at bar, to require a separate assessment of lands and the timber thereon. So that, in our opinion, the case of Miller v. Copeland's Estate, both in the opinion of the court affirming the case and in the dissenting opinion written by Justice Ethridge and concurred in by Justices Cook and Holden, demonstrates that the case of Darnell v. Johnson, is controlling in the case at bar, and that the assessment in the case at bar is not res adjudicata.
Lamar Henington and Heidelberg Roberts, all of Hattiesburg, for appellee.
The true rule is, in a case of this kind, that while the appellant generally in tax appeals has the burden of proof, if it sees fit to rest on making out a prima facie case, it can meet this burden by introducing in evidence the assessment as made by the tax assessor.
In the case at bar, however, we have two assessments made by a tax assessor: one, the original assessment, which adjudicates that the land in question was not timbered land, and the other, the assessment made under the direction of the State Tax Collector attempting to back assess timber located on land that had theretofore been adjudicated to be wild and uncultivatable land as distinguished from timbered land. If there were any presumptions to be indulged in this case, then the presumption of the validity of the first assessment would off-set any presumption indulged in favor of the validity of the second assessment.
With respect we submit that the judgment of the lower court is correct and the cause should be affirmed for the reason that the original assessments approved by the board of supervisors and unappealed from, are res adjudicata.
It is the contention of appellee that the orders of the board of supervisors approving the lands as being wild and uncultivatable lands, and these orders being unappealed from, are res adjudicata, and even if there was a small amount of scattered timber on this land, same cannot now be back-assessed by the State Tax Collector.
Miller v. Copeland's Estate, 139 Miss. 788, 104 So. 176; Bailey Bean v. Wilson, 128 Miss. 49, 90 So. 362; Miller, State Revenue Agent, v. Holmes, 110 So. 249; Riley v. Gaddis, 111 So. 739; Scott County v. Dubois, 130 So. 106, 158 Miss. 245.
We respectfully submit that the State Tax Collector's position is not supported by the statute relied upon, and that there is no statutory requirement where the taxpayer filed a list as did this taxpayer, and where the taxpayer owned both land and timber as did this taxpayer, for there to be a separate assessment of timber, and therefore, "the tax lists and rolls prescribed by the Tax Commission have not the force of law."
There is another reason why this back tax assessment cannot be valid. The form of tax roll prescribed by the State Tax Commission and used in this case, divided country lands into three classes: (a) Cultivatable land; (b) Timbered lands; (c) Uncultivatable lands. This is an effort to back assess the timber, upon the theory that the land in question was timbered land. However, it was assessed not as timbered land but as uncultivatable lands. It is presumed that the tax assessor, before he made the assessment of these lands, when the return showed that the lands were cutover lands, inquired into the question of whether or not any timber left on the lands had any assessable value as timber.
When, therefore, the board of supervisors by its judgment adjudicated that the lands were not timbered lands but were uncultivatable lands, this judgment, when not appealed from, was final and becomes res adjudicata.
Long-Bell Lbr. Co. v. McLendon, 90 So. 356, 127 Miss. 636.
Lamar Henington and Heidelberg Roberts, all of Hattiesburg, for appellee on suggestion of error.
With respect we beg leave to suggest that the decision of this court is erroneous. In the opinion reversing this cause the court wholly overlooked certain applicable statutes, and even if the interpretation placed by the court upon section 3145 of the Code of 1930 is correct, still, the case of Darnell v. Johnson, 109 Miss. 570, 68 So. 780, cited in the opinion in support thereof, is inapplicable to the facts of this case.
If we assume for the sake of argument that the court's interpretation of section 3145 is correct, still, the case of Darnell v. Johnson, supra, is not, in our opinion, controlling. In fact, we think that the reasoning of the court in both the majority and the dissenting opinions in the Darnell v. Johnson case demonstrates that the assessment in the case at bar is res adjudicata. We believe the court has overlooked the difference between the assessment roll involved in the Darnell v. Johnson case and the assessment roll involved in the case at bar. In the Darnell v. Johnson case, there was involved an assessment roll made up in accordance with the provisions of chapter 89, Laws of 1912. In so far as country lands were concerned, the assessment roll in that case divided them into two classes only, namely, "cultivated land," and "wild and uncultivated land." The assessment roll, in dealing with cultivated lands, had two columns with sub-headings, one to give the number of acres of cultivated lands, and the other to give the valuation of the cultivated lands. The assessment roll of wild and uncultivated lands had four columns with subheadings: one giving the number of acres; another giving the valuation of the land excluding timber; another giving the estimated number of feet of timber thereon, and another for the valuation of the timber.
Applying the rule of res adjudicata, the court in the Darnell v. Johnson case, in effect held that the order of the board of supervisors adjudicating the lands to be timbered lands was conclusive of that fact, and when this assessment roll constituting such judgment of the court having jurisdiction thereof adjudged the lands to be timbered lands and adjudged its value exclusive of timber thereon and showed the total assessment to be the same as the value of the timbered lands without the timber, it thereby also adjudicated that the timber had not been assessed nor had its value been taken into consideration in determining the value of the land. If this is true, then does it not therefore necessarily follow that if in the case at bar the judgment of the board of supervisors from which no appeal was taken is a judgment adjudicating and finding that the lands in question were not timbered lands, then this judgment is likewise res adjudicata.
If the form of assessment roll used in the case at bar had been the same as the form involved in the case of Darnell v. Johnson, then the opinion of this court might be correct, if we assume it has placed a proper interpretation upon section 3145. But we are dealing here with an entirely different assessment roll.
The board has not adjudicated that the lands in question were timbered lands, but on the contrary, they having been assessed and the assessment roll approved under the caption "uncultivatable lands" as distinguished from timbered lands, it has affirmatively adjudicated that the lands in question were not timbered lands, and this judgment of the board of supervisors, not having been appealed from, is res adjudicata.
Argued orally by T.W. Davis, for appellant, and by Rowland W. Heidelberg, for appellee.
At the request of the appellant, the tax assessor of Forrest county back-assessed timber growing on land owned by appellee, for the years 1930 to 1932, inclusive, and thereafter for the year 1933; it having, according to the assessor, escaped taxation for those years. These assessments were approved by the board of supervisors, but were disapproved and set aside by the circuit court on appeal thereto. The real property rolls in use during these years are ruled so as to disclose:
(1) The number of acres of cultivatable land, the value thereof, excluding buildings, improvements, and timber, and the value of buildings and improvements thereon.
(2) The number of acres of timbered lands, its value, excluding timber and improvements, the number of thousand feet of board measure timber, and the value of the timber thereon. And
(3) The number of acres of uncultivatable land, and its value, excluding buildings, improvements, and timber.
The appellee, in returning this land for assessment for each of these years, listed the land, on which the timber here in question is, as uncultivatable land, without disclosing the value of the timber, if any, thereon, and the land was accordingly assessed. There was timber growing on the land.
The statute here governing is chapter 58, Extraordinary Session of the Legislature of 1928, which was brought forward into the Code of 1930 as section 3145 thereof.
The appellee's contentions are: First, that this statute does not require timber on land to be assessed separately; and, second, if it does so require, the assessments made are res judicata. The statute, after providing that the land shall be assessed at its true value, continues: "Every person owning or being in possession, or in charge, of any land shall deliver to the tax assessor on demand and not later than April first in each year in which land is assessed, a list of all lands owned by, or in possession, or charge, made out on the tax lists prescribed; and showing the total number of acres (except the land be platted by blocks and lots), the total number of acres of cultivatable lands and the value thereof, the total number of acres of timbered lands and the value of the land, and the number of thousand feet of timber thereon and its value, and the number of acres of uncultivatable land and the value thereof; and buildings or improvements subject to taxation on any lands returned for assessment. . . . If any person shall deliver or disclose to an assessor, or deputy assessor, a list, statement, or return in regard to his land which, in the opinion of the assessor, or deputy assessor is false or fraudulent, or contains any understatement or undervaluation, or fails to show the proper classification of lands or fails to show timber, buildings and improvements, or other elements of value, the assessor shall make an assessment of the land with the proper classification thereof including the omitted things, at a valuation equal to the highest value at which like lands similarly situated are assessed. Lands not given in by any person shall be assessed in the same manner by the assessor at a valuation equal to the assessment of other like lands similarly situated and all timber, buildings, and improvements, or other elements of value shall in all cases be separately valued and assessed."
The appellee admits that this statute requires the assessor, when assessing "lands not given in by any person," to separately value and assess the timber growing thereon, but says that a separate assessment of timber is not required where the land has been given in for assessment. Its argument, in substance, is that requiring persons giving in land for assessment to set forth the improvements and timber thereon, and their value, is for the purpose of enabling the assessor to properly arrive at the true value of the land, and that requiring the assessor, when assessing land not given in, to separately value and assess the timber and improvements thereon, is for the reason that the improvements and timber may be owned by one person, and the land itself by another, in which event, section 3146, Code of 1930, requires a separate assessment, and the assessor in making the assessment would not know whether there were separate ownerships.
We are unable to agree with this interpretation of the statute. It requires a person, giving in land for assessment, to disclose the value of the timber and improvements thereon, and concludes as follows: "And all timber, buildings, and improvements, or other elements of value shall in all cases be separately valued and assessed." (Italics ours.)
But appellee says that this language refers only to assessments made by the assessor on property not given in therefor. The requirement is that "lands not given in by any person shall be assessed in the same manner by the assessor," manifestly meaning in the manner that land is assessed when given in therefor, and that the words "in all cases," unless limited by construction, cover all assessments made by the assessor, whether given in therefor or not. Had the Legislature intended to limit such assessments to those initiated by the assessor, it could have, easily and definitely, so provided by using the words "in such cases," instead of the words "in all cases."
This being the requirement of the statute, the timber on the land has escaped taxation, and the assessment of the land alone was not an adjudication by the board of supervisors that there was no timber on the land, or that the timber thereon was of no value. Darnell v. Johnson, State Revenue Agent, 109 Miss. 570, 68 So. 780. In that case the writer hereof expressed a contrary view, but a majority of the court disagreed with him. The judgment of the court below will be reversed.
At the trial on the appeal to the court below, the parties agreed on the amount of timber on the land and its value. This amount and value were different from that assessed and approved by the board of supervisors. The court below should have approved the assessment of the timber, but should have set aside the order of the board of supervisors insofar as it fixed the amount and value of the timber, and should have entered an order fixing the amount and value thereof as per the agreement of the parties. This will be done here.
Reversed, and judgment here for the appellant.
ON SUGGESTION OF ERROR.
The appellee suggests that, assuming that the opinion hereinbefore rendered when we reversed the judgment of the court below is otherwise correct, we erred in holding that the timber had escaped taxation. In so holding, we were attempting to follow the case of Darnell v. Johnson, State Revenue Agent, 109 Miss. 570, 68 So. 780, 784. But on a reconsideration of the case, we are of the opinion that that case is not controlling, and that the original assessment herein precludes the back assessment of the timber herein attempted to be made.
In the Darnell Case, supra, the headings of the assessment roll there under consideration which are pertinent here were: (1) "Number of Acres of Wild and Uncultivated Lands." (2) "Valuation of Wild and Uncultivated Lands Excluding Timber." (3) "Estimated Number of Feet of Timber Thereon." And (4) "Valuation of the Timber Thereon." The land there was assessed only under the first of these two headings, nothing appearing under the headings, "Estimated Number of Feet of Timber Thereon" and "Valuation of the Timber Thereon." The court held that, in approving the assessment, the board of supervisors necessarily adjudged that the land contained timber, and as nothing appeared under the headings "Estimated Number of Feet of Timber Thereon" and "Valuation of the Timber Thereon," the timber had escaped taxation.
The headings of the roll here differ from the headings there.
The statutes do not prescribe the form of the tax lists on which landowners shall return their land for assessment of taxes, nor the form of the assessment roll, but sections 3129 and 3133, Code 1930, which appeared in former statutes, empower the state tax commission to prescribe the forms thereof. Section 3145, Code 1930, which appeared in a former statute, directs landowners to return their land for assessment "made out on the tax lists prescribed; and showing the total number of acres (except the land be platted by blocks and lots), the total number of acres of cultivatable lands and the value thereof, the total number of acres of timbered lands and the value of the land, and the number of thousand feet of timber thereon and its value, and the number of acres of uncultivatable land and the value thereof; and buildings or improvements subject to taxation on any lands returned for assessment. If the lands be surveyed and platted it shall be returned so as to clearly identify it by the recorded plat thereof, and the list rendered shall disclose the value of each lot and the value of any buildings, structures, or improvements thereon." This section separates land for the purpose of taxation into three classes: Cultivatable land, timbered land, and uncultivatable land. Its clear intent is that all land containing timber, whether cultivatable or not, should be listed as timbered land, and that the amount and the value of the timber thereon should be stated. Had the assessment roll conformed strictly to this classification, no trouble would here arise, and the original assessment of the board of supervisors herein would be res judicata. The trouble arises because the assessment roll prescribed by the state tax commission adds something to the classification of uncultivatable lands that does not appear in the statute. That assessment roll and the one here used by the tax assessor, insofar as it bears hereon, is as follows: It contains a double column headed "Cultivatable Lands," the two subcolumns thereunder being headed (1) "Number of Acres," and (2) "Valuation Excluding Building and Improvements;" next, a single column headed "Valuation Buildings and Improvements on Country Lands;" next, a column headed "Timbered Lands," immediately under which appears the following: "All lands having timber must be listed in this space." Four subcolumns appear under this general heading: (1) "Number of Acres." (2) "Valuation Excluding Timber and Improvements." (3) "Number of Thousand Feet, Board Measure of Timber." (4) "Valuation of Timber Thereon." Next a double column headed "Uncultivatable Lands." Two sub-columns appear thereunder headed: (1) "Number of Acres," (2) "Valuation Excluding Buildings and Improvements and Timber," and next a single column headed "Total Number of Acres of Country Lands." The value of the building and improvements on "Uncultivatable Lands" could and should appear in the prior column headed "Valuation Buildings and Improvements on Country Lands." The roll contains no column under which the value of timber on such lands could be listed. It could not be listed under the quadruple column headed "Timbered Lands," for all land containing timber should have been included in the number of acres listed as timbered lands.
It was manifestly the intention of the tax commission that no land should be listed as uncultivatable which contained timber of taxable value. This is made clear by an annotation on the roll that the number of acres set forth under the headings, cultivatable, timbered, and uncultivatable lands should equal the number of acres appearing under the column headed "Total Number of Acres of Country Lands." This being true, when the board of supervisors approved this assessment with no land appearing thereon as timbered lands, it adjudicated that none of the land returned for assessment contained taxable timber.
This conclusion is reinforced by what occurred here. This land is wild and cutover land; i.e., all of the timber which the owner considered merchantable had been cut therefrom. The assessment lists given the assessor by the appellee all conformed to the one now to be set forth:
Tax List of Realty Owned by J.J. Newman Lumber Company January 1st, 1932, in Forrest County, Miss. --------------------------------------------------------------------------- Timbered Land Description Section Wild and Value of Estimated Uncultivated Improvements Value land Acres Acres No. M. Timber Land Value Feet --------------------------------------------------------------------------- Township 5 Range 14 W Cut-Over or Stripped Land NE 1/2 and E 1/2 of NW 1/4 30 240 $ 960 S.E. 1/4 less 3 acres to MCRR., 31 154 620 NW 1/4 32 160 640 S 1/2 of SW 1/4, and SW 1/4 of SE 1/4 33 120 480 --------------------------------------------------------------------------- Total Valuation
An agreed statement of facts discloses "that it was the uniform custom during each of the years involved, and still is, for the Tax Assessor of Forrest County to enter in the same column and in the same manner as the assessments involved in this case, all wild and uncultivated land having no timber thereon, and all cutover lands having no timber thereon."
After reaching this conclusion, we ascertained from the records of the state tax commission that such was its interpretation of the assessment roll. Its records disclose the rules and regulations sent out by it to the tax assessors and clerks of the boards of supervisor, explaining the assessment roll and what should be done by the assessors and boards of supervisors relative thereto, in which this appears:
"Classification of Lands. Some confusion might arise in the assessor's mind as to the meaning of the phrases: 1. `Cultivatable Lands,' 2. `Timbered Lands,' and 3. `Uncultivatable Lands.' . . .
"`Cultivatable Lands' should include the following types of land: (specification thereof omitted).
"`Timbered Lands' should include the following:
"(e) Lands covered with merchantable timber; that is regardless of kind, timber which can be sold in markets. It would necessarily be timber out of which lumber, ties, staves, spokes, shingles, boards, heading, pulp wood, laths, etc., could be made. Lands covered by small trees (out of which the foregoing cannot be made, but out of which fire wood can be made) are not to be classified as `Timbered Lands' but as `Uncultivatable' if the soil and surface are not susceptible of agriculture, or trees and undergrowth so dense that the lands cannot be cultivated without unusual clearing.
"`Uncultivatable Lands' should include the following:
"(f) Gullies, sand beds, and hills, which cannot be used for agricultural purposes; lowlands, which are so often overflowed, that they cannot be used for agriculture.
"(g) Lands so thickly in stumps or small trees as not to be susceptible of agriculture.
"(h) Lands so lacking in fertility that the soil is not capable of producing crops by the use of ordinary methods of preparation and the ordinary use of fertilizer."
It is clear from this that the state tax commission interpreted the assessment roll as requiring no timbered land to be listed under the heading "Uncultivatable Lands," but that all such should be listed under the heading "Timbered Lands." We have set forth these rules and regulations, not as indicating that we could look thereto in deciding this case — as to which we express no opinion — but merely to show that we have interpreted the roll as the state tax commission itself did.
The suggestion of error will be sustained, and the former opinion, insofar as it conflicts herewith, will be hereafter disregarded. The judgment of reversal hereinbefore rendered will be set aside, and the judgment of the court below will be affirmed.
So ordered.