Opinion
No. 31877.
November 4, 1935.
TAXATION.
Where interstate gas pipe line was assessed for taxation by state tax commission, on mileage basis, district attorney for county through which line passed was without authority to appeal on county's behalf from assessment under statute, where all of property sought to be taxed was not located within judicial district for which district attorney was elected (Code 1930, section 3208, as amended by Laws 1932, chapter 291, section 2; Laws 1934, chapter 206, section 1).
APPEAL from the circuit court of Issaquena county; HON.E.L. BRIEN, Judge.
Wynn, Hafter Lake, of Greenville, for appellant.
The appeal is prosecuted under the provisions of chapter 206, Laws of 1934.
The lower court held the district attorney was without the authority to prosecute the appeal, inasmuch as the river crossing was a part of the pipe line which extended across the state of Mississippi and this pipe line was not located exclusively within the judicial district for which the appellee had been elected.
We submit that the district attorney is authorized, under chapter 206 of the Laws of 1934, to prosecute the appeal from the assessment made by the state tax commission; and the action of the lower court in sustaining the motion to dismiss the appeal was erroneous.
R.H. J.H. Thompson, of Jackson, for appellee.
The purported appeal is based solely upon the provisions of chapter 206 of the Laws of Mississippi of 1934, and appellee takes the position that this statute was and is unconstitutional and otherwise void, and each and every provision thereof was and is unconstitutional and otherwise void, and the judgment of the lower court should be affirmed for that reason alone.
The statute attempts to authorize an appeal to the circuit judge and excludes the idea of an appeal to the circuit court; it undertakes to authorize the circuit judge, sitting alone as an independent tribunal, to determine the proceeding, but it does not undertake to create, and does not create, an inferior court as authorized by section 172 of the State Constitution. It attempts to vest judicial powers in those individual citizens who happen to hold office as judges of the circuit courts, which judicial powers are attempted to be imposed apart from and wholly disconnected with the powers vested by law in circuit judges and in circuit courts, because whereof the statute is void and the property owner (the person assessed) is denied his day in court and deprived of his property without due process of law, contrary to section 1 of article XIV of the Constitution of the United States and contrary to section 14 of the Constitution of Mississippi.
Upshur County v. Rich, 135 U.S. 477; Section 156, Mississippi Constitution; Knox v. Dantzler Lbr. Co., 148 Miss. 834.
It is clear that any judgment attempted to be rendered under the statute would not be a judgment of the circuit court but would be a purported judgment attempted to be rendered by the circuit judge, a void thing.
Railroad Co. v. Dodd, 105 Miss. 23; Railroad Co. v. Adams, State Revenue Agent, 81 Miss. 90; Vinegar Bend Lbr. Co. v. Oak Grove Georgetown Railroad Co., 89 Miss. 84; Knox v. Dantzler Lbr. Co., 148 Miss. 835; Talbot Lbr. Co. v. McLeod Lbr. Co., 147 Miss. 186.
Issaquena county attacks the unit and mileage basis system of assessment, which system has been continuously used in Mississippi for many years, entirely ignoring the fact that under the existing plan it derives its equitable portion of the benefits arising from consideration of earnings and the stock and bond method of arriving at value, and it contends that each county is entitled to collect taxes on the actual value of the physical property of appellee lying within its own borders.
No end of confusion and injustice would result should this court hold illegal the method for assessment for ad valorem taxation of public utility properties which has been so long followed in Mississippi.
Sections 3200, 3201, Code of 1930, and sec. 3208, as amended by chapter 291, Laws of 1932, page 626.
Since the adoption of the Code of 1880, the unit and mileage basis has been continuously relied upon in assessing railroad property and, since the adoption of that code, the local authorities have not been permitted to assess railroad property for taxes.
LeBlanc v. Railroad, 72 Miss. 669; Railroad v. Miller, 141 Miss. 223; Warehouse Co. v. Yazoo City, 97 Miss. 500; Columbus Southern Ry. Co. v. Wright, 151 U.S. 480.
It may well be doubted whether any better mode of determining the value of that portion of the track (meaning a railroad track) within any one county has been devised than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole.
State v. Secor, 92 U.S. 608; Ames v. People, 26 Col. 83, 56 P. 565; State ex rel. Morton v. Back, 69 L.R.A. 447; St. Louis, etc., R.R. Co. v. Worthern, 52 Ark. 529, 7 L.R.A. 374; Arkansas Tax Commission v. Crittenden County, 38 S.W.2d 319; Morgan's Louisiana Texas Railroad Steamship Co. v. Aucoin, 73 So. 859; State v. Stone, 25 S.W. 211; Schmidt v. Galveston, 24 S.W. 547.
Armstrong, McCadden, Allen, Braden Goodman, of Memphis, Tenn., and Green, Green Jackson, of Jackson, amici curiae, for appellee.
The crossing is an integral portion of the line, an interdependent part and without value save when utilized as part of the entirety. The tax commission, from time out of mind, has made administrative rulings uniformly that extra expensive portions of a utility line, especially bridges for overcoming natural obstacles, should be assessed on a mileage pro rate basis and not specifically allocated to the taxing district wherein it happens to be, and that the state should receive its taxes on the portion of the utility within Mississippi through all of the counties wherein the utility operated.
Rowley v. Chicago, etc., Ry., 79 L.Ed. 19; People v. Grand Trunk W.R., 192 N.E. 646; Northern Pacific R. v. Adams County, 1 F. Supp. 163; Norfolk Western Ry. Co. v. Board of Public Works, 3 F. Supp. 791, 795.
There is very little utilization of appellee's property in Mississippi and by reason thereof, Mississippi's method of pro ration might discriminate so greatly in its favor as to amount to a deprivation of property without due process of law.
Rowley v. Chicago N.W.R., 79 L.Ed. 23; Union Tank Line Co. v. Wright, 249 U.S. 275, 282, 283, 63 L.Ed. 602, 607; Fargo v. Hart, 193 U.S. 490, 500, 48 L.Ed. 761, 765; Railway Co. v. Kentucky, 274 U.S. 76, 71 L.Ed. 934.
Mississippi has consistently found the value of the utility as an entirety and thereafter allocated, thereby greatly profiting and receiving as taxes much more than would otherwise be potentially possible.
Warehouse Co. v. Yazoo City, 97 Miss. 500, 510, 52 So. 481; LeBlanc v. Railroad Co., 72 Miss. 675; House v. Gully, 153 So. 528, 170 Miss. 425; Griffin v. Jones, 154 So. 551, 170 Miss. 230; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103; Trahan v. State Highway Commission, 151 So. 178, 169 Miss. 732; Hartley v. Commissioner, 79 L.Ed. 735; Bliss v. Helvring, 79 L.Ed. 4; Illinois Central Railroad v. Miller, 106 So. 636, 641, 141 Miss. 223; Yazoo, etc., R. Co. v. Adams, 85 Miss. 772, 38 So. 348; City of Hattiesburg v. Railroad Co., 106 So. 749, 141 Miss. 497; Cleveland, etc., R. Co. v. Backus, 154 U.S. 429, 38 L.Ed. 1037; State R. Tax Cases, 92 U.S. 608, 23 L.Ed. 671; Delaware R. Tax, 85 U.S. 18 Wall. 206, 21 L.Ed. 888; Erie R. Co. v. Pennsylvania, 88 U.S. ___, 21 Wall. 492, 22 L.Ed. 595; Western U. Tel. Co. v. Attorney-General, 125 U.S. 530, 31 L.Ed. 790; Pullman Palace Car Co. v. Pennsylvania, 141 U.S. 18, 35 L.Ed. 613, 3 Inters. Com. Rep. 595; Maine v. Grand Trunk R. Co., 142 U.S. 217, 35 L.Ed. 994; 3 Inters. Com. Rep. 807; Charlotte, C. A.R. Co. v. Gibbes, 142 U.S. 386, 35 L.Ed. 1051; Columbus S.R. Co. v. Wright, 151 U.S. 470, 38 L.Ed. 239; Underwood Typewriter Co. v. Chamberlain, 254 U.S. 121, 65 L.Ed. 169; People v. Grand Trunk W. Ry. Co., 192 N.E. 645, 357 Ill. 493; Los Angeles, etc., v. Railroad Commission, 289 U.S. 287, 77 L.Ed. 1180; Scaggitt County v. Northern Pac., 61 F.2d 638.
The state is "not aggrieved" by the assessment and hence may not appeal.
Carrier Lbr. Co. v. Quitman Co., 124 So. 437, 125 So. 417, 156 Miss. 396; Southern Pine Co. v. Mitchell, 19 So. 583; Dougherty v. Canton, 11 Miss. (3 S. M.) 100; 3 C.J. 632; Ruff v. Montgomery, 83 Miss. 185, 190, 36 So. 67; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Humphreys v. MacFarland, 48 So. 182; Land v. Coffee, 171 Miss. 91, 157 So. 89.
The state having received all to which it is entitled is estopped.
Nicholson v. Heidenhoff, 50 Miss. 56; Yalobusha County v. Tallahatchie County, 150 So. 723, 168 Miss. 526; Madison County v. Canton, 158 So. 149, 171 Miss. 547; Parsons v. Rutherford, 84 Miss. 70, 36 So. 187; Murphy v. Hutchinson, 48 So. 178, 93 Miss. 643; Hartley v. Smith, 123 So. 887, 890, 154 Miss. 846; Quitman County v. Miller, 117 So. 263, 150 Miss. 841; Whittington v. Cottam, 130 So. 746, 158 Miss. 847; Simonton v. Bacon, 49 Miss. 589; Bunch v. Shannon, 46 Miss. 525.
The district attorney may not appeal for the property sought to be taxed is not all located within the judicial district for which such district attorney is elected.
Warner v. Goltra, 79 L.Ed. 11; Helvring v. New York Trust Co., 292 U.S. 468, 78 L.Ed. 1368; Yazoo, etc., R. v. Adams, 85 Miss. 772; Illinois Central R. v. Miller, 106 So. 636, 141 Miss. 223; Pocatello v. Ross, 6 P.2d 481; Industrial Commission v. Brown, 92 Ohio St. 309, 110 N.E. 744, 745, L.R.A. 1916B 1277; Arkansas State Tax Com. v. Crittenden County, 38 S.W.2d 319; State v. Louisiana M.R.R. Co., 94 S.W. 281; Middleton v. Lincoln County, 84 So. 908, 122 Miss. 673; State ex rel. Morton v. Back, 69 L.R.A. 454; Pleasant v. M.K.T.R. Co., 66 F.2d 842; State v. Stone, 25 S.W. 219; New Jersey, etc., R. Co. v. Mayor, 43 A. 577; Appeal Tax Court v. Western Md. R.R. Co., 50 Md. Rep. 301; Chicago, St. L. N.O.R. Co. v. Commonwealth, 72 S.W. 1119; Schmidt v. Galveston, H. S.A.R. Co., 24 S.W. 547; State v. Louisiana M.R. Co., 114 S.W. 959; State v. Hannibal, etc., R. Co., 10 S.W. 438; Illinois Central R. v. Miller, 141 Miss. 223, 106 So. 641; Henry v. State, 37 So. 856, 87 Miss. 1; State v. Union Tank Car Co., 119 So. 310, 151 Miss. 797; Pan American Petroleum Corp. v. Miller, 122 So. 393, 154 Miss. 656.
Position of appellant is inconsistent and impossible.
Argued orally by J.H. Thompson, for appellee, and by Garner W. Green, amicus curiae.
Feeling aggrieved at the action of the state tax commission, and relying upon chapter 206, Laws 1934, Issaquena county, through N. Vick Robbins, district attorney for the Ninth judicial district, appealed from the circuit court from an order entered by the state tax commission on December 31, 1934, making an assessment of the property of the appellee, Southern Natural Gas Corporation.
This appeal was filed some time in January, 1935, returnable to the March term of the circuit court of Issaquena county.
The Southern Natural Gas Corporation appeared before the court and made a motion to dismiss the appeal for nine reasons, one of which was that the district attorney was not authorized to prosecute the appeal. This corporation, as shown by the brief of the appellee, constructed, and is now operating, a pipe line for the conveyance of natural gas east and west through the state of Mississippi. The pipe line of the corporation crosses the Mississippi river and enters the state in Issaquena county.
The total assessment against the corporation by the state tax commission amounts to one million eight hundred thousand dollars; the assessment being arrived at on a mileage basis; six thousand dollars a mile for twenty-two-inch size pipe line, and about two thousand dollars a mile for eight-inch size pipe line. The entire assessment on a mileage basis in Issaquena county was about sixty-three thousand dollars.
In the petition of the appellant, the district attorney alleged that the value of the Mississippi river crossing, situated in Issaquena county, is over three hundred fifty thousand dollars; and the main contention is that this river crossing, being about one-half mile from the thread of the stream to the shoreline, should be valued at three hundred thousand dollars, and allocated to Issaquena county.
It is manifest that the appeal is in behalf of Issaquena county; that its contention is that because of the expense and outlay in constructing the gas pipe line across the Mississippi river, Issaquena county is entitled to have allocated to it the value of this special improvement. It is quite clear that this pipe line could not be operated in Mississippi and convey gas across it from another state without having a crossing over the river.
The court below sustained the motion to dismiss the appeal, and the district attorney for the state of Mississippi prosecutes an appeal here.
Gas lines are assessed in the same manner as railroads, and authority for assessing the same is conferred upon the state tax commission by section 3208, Code 1930, as amended by Laws 1932, chap. 291, sec. 2. Railroads are assessed on a mileage basis by the state tax commission under the provisions of sections 3200 to 3207, Code 1930. By statute, the state tax commission is authorized to find the number of miles of gas pipe lines in the state of Mississippi, ascertain the fair valuation per mile, and allocate to each county the milage in each taxing unit, then the number of miles within the taxing unit is multiplied by the ascertained value per mile of the corporation's pipe lines within the state.
The applicable part of chapter 206, Laws 1934, reads as follows: "If the state shall be aggrieved by any order of the state tax commission as to the assessment of such property for ad valorem taxes, the attorney general, or the state tax collector, in proceedings to assess the taxes instituted by him, or the district attorney, if all of the property sought to be taxed is located within the judicial district for which such district attorney is elected, may, within twenty days . . . appeal to the judge of the circuit court . . . of the county in which the property or any part thereof is located." (Italics ours.) Section 1.
If the gas pipe line here under consideration traverses the state from west to east, we judicially know that the pipe line traverses other counties and parts of other judicial districts other than the Ninth judicial district, of which N. Vick Robbins is the district attorney. Therefore, all the property sought to be assessed is not located within the Ninth judicial district. The statute does not confer upon the district attorney the right to prosecute an appeal in the case at bar. However, if the state is actually aggrieved, which we do not decide, provision is made in the statute that the attorney-general or the state tax collector may appeal from the order of the state tax commission.
It would be an anomalous situation if the district attorney of each judicial district could prosecute an appeal for each taxing unit and wholly disregard the finding of the value of the corporation's property sought to be assessed. To permit this would be to assess by piecemeal each taxing unit where the pipe line traversed more than one judicial district, and the whole assessment would thereby be rendered ineffective and uncertain. Let it be remembered that in this case there is no complaint that the entire assessment for the state of one million eight hundred thousand dollars is not fair and equitable and according to the true value of the property sought to be assessed within the state.
We are of the opinion that the court below correctly sustained the motion to dismiss the appeal herein. There are other interesting questions raised by the appellee which we deem it unnecessary at this time to consider.
Affirmed.