{ "id": 1564961, "name": "State ex rel. Wm. L. Moose, Attorney General v. Kansas City & Memphis Railway & Bridge Company", "name_abbreviation": "State ex rel. Moose v. Kansas City & Memphis Railway & Bridge Co.", "decision_date": "1914-11-16", "docket_number": "", "first_page": "606", "last_page": "626", "citations": [ { "type": "official", "cite": "117 Ark. 606" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "106 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345639 ], "opinion_index": -1, "case_paths": [ "/ark/106/0248-01" ] }, { "cite": "184 U. S. 156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3626299 ], "opinion_index": 0, "case_paths": [ "/us/184/0156-01" ] }, { "cite": "2 Wall. 160", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 8299972 ], "opinion_index": 0, "case_paths": [ "/us/69/0160-01" ] }, { "cite": "16 Mass. 245", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2035323 ], "opinion_index": 0, "case_paths": [ "/mass/16/0206-01" ] }, { "cite": "171 U. S. 404", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3600956 ], "opinion_index": 0, "case_paths": [ "/us/171/0404-01" ] }, { "cite": "40 Minn. 512", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 550756 ], "opinion_index": 0, "case_paths": [ "/minn/40/0512-01" ] }, { "cite": "204 U. S. 585", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8293620 ], "opinion_index": 0, "case_paths": [ "/us/204/0585-01" ] }, { "cite": "62 Ark. 461", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905699 ], "opinion_index": 0, "case_paths": [ "/ark/62/0461-01" ] }, { "cite": "63 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724691 ], "opinion_index": 0, "case_paths": [ "/ark/63/0576-01" ] }, { "cite": "64 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907432 ], "opinion_index": 0, "case_paths": [ "/ark/64/0258-01" ] }, { "cite": "94 Ark. 217", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545422 ], "opinion_index": 0, "case_paths": [ "/ark/94/0217-01" ] }, { "cite": "96 Ark. 410", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1542010 ], "opinion_index": 0, "case_paths": [ "/ark/96/0410-01" ] }, { "cite": "106 Ark. 151", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345603 ], "opinion_index": 0, "case_paths": [ "/ark/106/0151-01" ] }, { "cite": "121 U. S. 535", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 678713 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/121/0535-01" ] }, { "cite": "16 Cal. 332", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2279293 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/cal/16/0332-01" ] }, { "cite": "98 Pac. 1002", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8880972 ], "opinion_index": 0, "case_paths": [ "/okla/22/0761-01" ] }, { "cite": "42 Minn. 181", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 750898 ], "opinion_index": 0, "case_paths": [ "/minn/42/0181-01" ] }, { "cite": "119 Tenn. 636", "category": "reporters:state", "reporter": "Tenn.", "opinion_index": 0 }, { "cite": "114 U. S. 519", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "87 Tenn. 406", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8538219 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/tenn/87/0406-01" ] }, { "cite": "183 U. S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8297470 ], "opinion_index": 0, "case_paths": [ "/us/183/0471-01" ] }, { "cite": "176 U. S. 550", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5704955 ], "opinion_index": 0, "case_paths": [ "/us/176/0550-01" ] }, { "cite": "159 U. S. 526", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5700482 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/159/0526-01" ] }, { "cite": "52 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913438 ], "opinion_index": 0, "case_paths": [ "/ark/52/0529-01" ] }, { "cite": "46 Ark. 312", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1890498 ], "opinion_index": 0, "case_paths": [ "/ark/46/0312-01" ] }, { "cite": "102 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354024 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/102/0411-01" ] }, { "cite": "91 Pac. 1107", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "27 Pac. 1055", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "32 Pac. 504", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "55 Ark. 389", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322242 ], "opinion_index": 0, "case_paths": [ "/ark/55/0389-01" ] }, { "cite": "86 Ark. 368", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521476 ], "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ark/86/0368-01" ] }, { "cite": "166 U. S. 557", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3593405 ], "opinion_index": 0, "case_paths": [ "/us/166/0557-01" ] }, { "cite": "129 U. S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8299116 ], "opinion_index": 0, "case_paths": [ "/us/129/0036-01" ] }, { "cite": "112 U. S. 536", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3508162 ], "opinion_index": 0, "case_paths": [ "/us/112/0536-01" ] }, { "cite": "57 N. Y. 473", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 5139485 ], "opinion_index": 0, "case_paths": [ "/ny/57/0473-01" ] }, { "cite": "15 N. Y. 595", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2018079 ], "opinion_index": 0, "case_paths": [ "/ny/15/0595-01" ] }, { "cite": "68 Ark. 333", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333894 ], "opinion_index": 0, "case_paths": [ "/ark/68/0333-01" ] }, { "cite": "63 Ark. 573", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724643 ], "opinion_index": 0, "case_paths": [ "/ark/63/0573-01" ] }, { "cite": "106 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345639 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/106/0248-01" ] } ], "analysis": { "cardinality": 1340, "char_count": 41295, "ocr_confidence": 0.407, "pagerank": { "raw": 6.986515979192635e-07, "percentile": 0.9656588086795794 }, "sha256": "e5e7ed02ebb2dcb15700d38344f9767e984655881a86f9f5440b375872cf5acb", "simhash": "1:8aec967d0eff2b72", "word_count": 7134 }, "last_updated": "2023-07-14T17:56:14.924196+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Wood, J., dissents.", "Smith, J., disqualified." ], "parties": [ "State ex rel. Wm. L. Moose, Attorney General v. Kansas City & Memphis Railway & Bridge Company." ], "opinions": [ { "text": "McGill, Special J.,\n(after \u00a1stating the facts). The first contention in -support of the demurrer to the complaint is that the \u00a1act of 1913 \u00a1should be so construed -as to limit its retrospective effect to that feature -of the amendment which restricts the remedy to -property owned by a corporation at the time -of the passage of the amendatory \u2022act, -and, if not so limited, -so as to confine its retrospective -operation to the period between the passage of the act of 1911 and the act of 1913.\nThe established rule is that all statutes are to be construed as having only \u00a1a -prospective -operation, unless the purpose -and intention of the Legislature to give them \u00a1a retrospective effect is expressly declared or is necessarily implied from the language used. 36 Cyc. 1203; Fayetteville B. & L. Assn. v. Bowlin, 63 Ark. 573; Beavers v. Myar, 68 Ark. 333; Ely v. Holton, 15 N. Y. 595; N. Y. & O. M. R. R. Co. v. VanHorn, 57 N. Y. 473; Chew Heong v. United States, 112 U. S. 536; Shreveport v. Cole, 129 U. S. 36; City Ry. Co., v. Citizens St. R. R. Co., 166 U. S. 557.\nIn the act of, 1913 the purpose \u00a1and intention of the Legislature that it .should have a retrospective effect is expressly declared. But, \u00a1because it does not specify that it is to apply to each separate provision, \u00a1and on the assumption that it will otherwise impose additional burdens on the public and operate harshly 'and unjustly, it is insisted that it should be .construed in the .most limited sense of which the language used, in connection with the subject-matter and object of the statute, is susceptible.\nThe fundamental rule in construing statutes is to ascertain \u00a1and give effect to the intention of the Legislature. 36 Cyc. 1106; Brown v. Nelms, 86 Ark. 368, 385.\nThe strict rule of \u00a1construction contended for does not apply to remedial statutes which do not disturb vested rights, or \u00a1create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature. 36 Cyc. 1209.\nTaking into consideration the origin .and history of the legislation on the subject, which is given in the opinion of the court in \u00a1the suit instituted before the .amendment of 1913, and the language of the different provisions, \u00a1and particularly that provision which restricts the operation of the act to property \u201cnow in this State,\u201d that is, within the jurisdiction \u00a1of the courts of'the State \u00a1at the time, we are of the opinion that the statute was intended to afford a remedy for the collection of back taxes; and that it looks backward, rather than forward; and that it is necessarily according to its language, retrospective, independently of any express declaration therein to that effect. To apply the rules of construction contended for would, in this case, \u00a1defeat the plain purpose and intention of the Legislature. If it had been intended to restrict the retrospective operation of the act to the particular provision contended for, it would have been easy to use \u201cdiroot and appropriate language for the purpose. \u201d If the entire act is retrospective, there is no reason to believe that the Legislature intended to limit the right to recover on the ground of undervaluation to the single year of 1912, iand it should not be so construed unless the fact that the act of 1913 purports in its title andenactingclause to be am amendment to section 1 of the act of 1911, makes it necessary that such construction should be given. Looking at the substance of the two acts, it appears that section 1 of the act of 1911 is >a literal-copy of section 7204 of Kirby\u2019s Digest, except the last five lines of section 7204 relating to the compensation to be paid to attorneys employed to assist the Attorney General. That part of it is embodied in section 2 of the act of 1911, and lamended, as to the amount of such compensation. The act of 1913 only amends that portion of the original section 7204 which is included in seebion.l of the act of 1911, and makes the first and only change in that part of the original act of 1887 which confers upon the Attorney General the right to sue for the recovery of back taxes.\nAmendments are to be construed together with the original act to which they relate as 'constituting one law. The old law \u00a1should be considered, the evils arising under it, and the remedy provided by the amendment, and that construction of the amended .act should be adopted which will best repress the evils and advance the remedy. An amended act is ordinarily to be construed as if the original statute had been repealed .and a new and independent act in the .amended form had been adopted in its stead. Mondschein v. State, 55 Ark. 389; 36 Cyc. 1164, 1165; Cortesy v. Territory (N. M.), 32 Pac. 504; Callahan v. Jennings (Col.), 27 Pac. 1055; Dimpfel v. Beam (Col.), 91 Pac. 1107.\nThe object of the amendatory act of 1913 was to give a complete remedy for the- -recovery of back taxes due by a corporation upon any property then in the State, Which belonged to any corporation at the time such taxes should have been properly assessed and paid. It takes away the right conferred by the orignal act to proceed \u25a0against property where the title had passed to an individual, although it had been \u00a1owned by a corporation when \u2022the assessment was made and the taxes were payable, but extends the remedy to oases of inadequate \u00a1or insufficient valuations or assessments or undervaluations of property, while under the original \u00a1act the remedy was \u00a1confined to oases of \u00a1an omission of some property, or element of value, \u00a1or where the wrong basis of valuation has been adopted.\nIn order to make the remedy complete it was not necessary to bring forward and re-enact the other \u00a1sections of the original act. They relate only to the method of procedure, while the portion which was amended declares the right to maintain the suit.\nThe amendment of the original act has the effect of bringing forward the unamended sections and making them a part of a complete act which operates retrospectively from the date of the last amendment, the \u00a1same as if all prior acts 'had been repealed \u00a1and a new \u00a1and independent and complete act had been passed at that date.\nSee authorities above cited, and \u00a1also, Com. Sch. Dist. v. Oak Grove Sp. Sch. Dist., 102 Ark. 411.\nWhether the statute \u00a1can be given a prospective operation so as to give it a \u00a1continuing effect, is a question not presented by the facts \u00a1of this case, \u00a1and need not be decided. The retrospective effect of the \u00a1act is separable from its prospective effect.\nThe second contention in \u00a1support of the demurrer is that if the statute is retrospective, it violates the provisions of the State Constitution requiring equality and uniformity in taxation, and the first section of the Fourteenth Amendment to the Constitution of the United States, prohibiting a State from denying to any person the equal protection of the laws.\nThe contention is that the selection by statute of the property of corporations is an arbitrary classification based solely on ownership, and not upon .any inherent difference in the character of the property; that it destroys \u25a0the uniformity and equality in taxation required by the State Constitution, 'and therefore results in a 'withdrawal from corporate owners of property of the equal protection of the laws, in violation of the Fourteenth Amendment. It -seems to 'be conceded by the learned counsel for the appellee that it would not have \u2018been a violation of the State Constitution if the statute had required all property that had been undervalued to be assessed at its true value.\nThe object of the assessment is to lasoertain and fix the value of property for taxation. The value is to be \u25a0ascertained in such manner us the General Assembly may direct, provided, that such values shall be equal and uniform throughout the State, and that no one species of property shall be taxed higher than another species 'of property of equal value. Art. 16, section 5, Constitution.\nIt has been settled by repeated decisions that the State is allowed a wide discretion in the matter of classifying property for the purpose of taxation. No question is raised as to the validity of the laws that have been passed on that subject, under which the original assessments involved in the present case were made, but it is assumed that 'the validity of the statute now in issue must be tested by the same rules 'and principles that are applied to original statutes for the classification of property for taxation.\nThe statute providing for the separate classification of certain property of railroad corporations and its assessment by a State Board of Commissioners, while the other property of such corporations and the property of individuals are assessed 'by the county assessor, has 'been held not to be in conflict with the Constitution of the State. L. R. & F. S. Ry. v. Worthen, 46 Ark. 312; St. Louis, I. M. & S. Ry. Co. v. Worthen, 52 Ark. 529.\nAs a mere \u00a1matter of 'classification, it would seem that appellee could not have complained if the statute had been limited to the property of railroads, and, if so, it could suffer no injury from the inclusion of the property of other corporations.\nBut we do not regard the statute as one classifying .property for taxation. It \u00a1makes no new classification of property for taxation, makes no changes in existing classifications, and does not provide for any new or additional levy of taxes, but only .supplies a remedy for the collection of taxes past due under previous levies made under existing classifications.\nIn Winona and St. Peters Land Co., v. Minnesota, 159 U. S. 526, it was held that a statute of Minnesota providing for the assessment and collection of back taxes on property which had escaped taxation by reason of having been omitted from the assessment, was not in conflict with the Fourteenth Amendment, and that even though the act could not be enforced as to personal property on account of a failure to provide for proper notice to the owner, it could be enforced against real property. The court said: \u201cThe case is different from that of an ordinary tax law in which there may be some foundation for the claim that the Legislature is expected to make no discrimination, and would not attempt to provide for the collection of taxes on one kind of property without also making provision for collection of taxes on all other property equally subject to taxation.\u201d It was further held that a difference in the mode 'Of assessment of property which had escaped taxation from the general mode of assessment, did not deprive the property owner of .any constitutional right.\nIn Weyerhaueser v. Minnesota, 176 U. S. 550, a statute of Minnesota which provided for a reassessment of property which had been grossly undervalued for past years, was held not to be in conflict with the Fourteenth Amendment.\nIn Florida, C. & P. R. R. Co. v. Reynolds, 183 U. S. 471, it was held that railroad companies were not denied the equal protection of the laws by a statute of the State of Florida which provided for the assessment for certain years of such railroad property as had escaped taxation for such years, without providing for the assessment of taxes for those years on other property not previously assessed.\nIn each of these oases the Supreme Court of the State has declared the statute not to be in conflict with the State Constitution.\nIt is insisted that these oases are not in point, because the Weyerhaueser oase is based on fraud, and the others on the omission of property from the first assessments.\nIt is true that the statute involved in the Weyerhmeser ease applied only to gross undervaluations and that the State Supreme Court held that the evidence was sufficient to show bad faith .and that the action of the assessor was a practical fraud, but its, decision was based upon a broader principle. The court made with approval the following quotation from the opinion in Street Railroad Company v. Morrow, 87 Tenn. 406: \u2018 \u2018 The Constitution and laws prescribed that all property should be assessed according to its value, and if by the misfeasance, or nonfeasance or mistake of the assessor, it is not assessed according to its value, but upon an arbitrary basis fixed by the assessor at far less than its value, why should the tax debtor escape simply because he has made payment?\u201d The court then added: \u201cSo, in this case, part payment of a just tax does not render the law unconstitutional because it compels full payment of a tax according to the value of the property, whether such inadequate assessment was the result of misfeasance or nonfeasance of the assessor. When full payment according to a true valuation has been made by the owner, then he is protected by the provisions of the Constitution requiring equality and uniformity of taxation. To this requisite he must submit, because all property should be assessed and taxes paid according to a true valuation. \u2019 \u2019\nNor is the decision of the United States Supreme Court in the same case based upon any distinction, from a constitutional standpoint, between an undervaluation that is gross or made fraudulently, and one that is less in degree or made by mistake or from error of judgment; or between an undervaluation and an omission of property from -assessment. It was expressly stated that -a gross undervaluation, which was the only -kind involved in the case, is within the principle 'applicable to an entire omission of property. It was declared that whether the property was omitted from assessment or grossly undervalued it thereby escaped payment of its just share of -the public burden, and that if the -owner of property had a remedy in equity to correct an excessive valuation, it would be strange if the State, -against a -gross undervaluation of property, could not in the exercise of its sovereignty give itself a remedy for the illegal deficiency, -and that that was the effect -of the statute.\nThe following was- quoted with approval from the opinion of the State Supreme Court: \u201cIt (the statute) merely sets in motion new proceedings to collect the balance of the State\u2019s -claim, -and there is no constitutional objection in the way of doing this.\u201d\nThe same principles controlled in the Florida case. The -court, after explaining -the character of the -obligation to pay taxes, said: \u2018 \u2018 They are not cancelled and -discharged by the failure of duty on the part of any tribunal \u25a0or officer, legislative or administrative. Payment alone discharges the obligation, -and until payment the State may proceed by all -proper means to compel the performance of the -obligation. No statutes -of limitation run against the State, -and it is a matter of discretion with it to determine how far it will reach into the past to compel performance of this obligation.\u201d\nIn 'another part of the -opinion, it is -said: \u201cIf the State, a;s has been seen, has the power, in the first instance, to classify property for taxation, it has -the -same right of classification as to property which in past years has escaped taxation. We must assume that the Legislature acts according to its judgment for -the best interest of -the State. A wrong intent can not be imputed to it. It may have found that the railroad delinquent tax was large, and the delinquent tax on -other property was -small, and not worth the trouble of -special provisions therefor. If taxes are to be regarded -as mere debts, then the effort of the State to eolleet from one debtor is not prejudiced by its failure to make a like effort to eolleet from another, iand, if regarded in the truer light as a 'contribution to the support of Government, then it does not lie in the mouth of one called upon to make his contribution to complain that some other person has not been coerced into >a like contribution. \u2019 \u2019\nThe following are some of the other eases supporting these views: Sturges v. Carter, 114 U. S. 519; Street Railroad Co. v. Morrow, 87 Tenn. 406; Smoky Mountain Land etc. Co. v. Lattimore, 119 Tenn. 636; County of Redwood v. Winona & St. Peter Land Co., 42 Minn. 181; Anderson v. Ritterbusch (Okla.), 98 Pac. 1002; People v. Seymour, 16 Cal. 332.\nIt is further insisted that the action of assessors and supervising boards and commissions created by the general revenue law of the State for the assessment of property for taxation and for the correction of errors and irregularities, i.s judicial in its 'character and conclusive upon the State, except in oases of fraud, in the absence of a statute providing for a review by the courts, and that to set aside, by retrospective legislation, as to a limited number or class, the judicial acts of such tribunals, after they have become final, would be withdrawing from such persons or class the equal protection of the laws.\nThe following cases are 'cited to show the judicial character and conclusive effect of the acts of such tribunals. Stanley v. Supervisors of Albany, 121 U. S. 535; State ex rel. Norwood v. K. C. & M. R. & B. Co., 106 Ark. 248; Collier v. Board of Directors, 106 Ark. 151; Shibley v. Fort Smith & V. B. District, 96 Ark. 410; State v. Little, 94 Ark. 217; Memphis L. & T. Co. v. St. Francis Levee Dist., 64 Ark. 258; Wells Fargo & Co.\u2019s Express v. Crawford County, 63 Ark. 576; Ex parte Fort Smith & Van Buren Bridge Co., 62 Ark. 461; C. B. & Q. Ry. Co. v. Babcock, 204 U. S. 585.\nThe rule established by these cases makes such action final only in the absence of any statute authorizing a review, and the argument against the constitutionality of such a statute by reason of its being retrospective and failing to include all property, is answered, we think, by the authorities already cited.\nIn the W eyerhaueser case, it was urged that when the valuation and assessment of the property had gone through their regular course, and the taxes had been paid, the same result follows as from the satisfaction of a judgment in an ordinary 'civil action; that the matter had then \u25a0become res adjudicada, and could only be attacked in a direct procedure for fraud. The Supreme Court of Minnesota said: \u201c It is to be observed 'that this is not an attack upon the original assessment so as to have the 'amount then assessed and to have the taxes thereon then levied and paid declared void. To that extent the amount is recognized as legitimate \u00aband upheld.\u201d\n\u201cThe act does not assume to set aside the proceedings which have been 'already had, but which have resulted in the State collecting only a part of its claim. It merely sets in motion new proceedings to collect the balance of the claim.\u201d\nThe United States Supreme Court, in the same case, said that the objection that the first assessments are final against any power of review could not be sustained, citing the Winona and St. Peter Land Co. v. Minnesota case, 159 U. S. 526, to the same effect.\nThe same court said in the Florida case: \u201cIt will be perceived that there was no new levy of taxes. No act of the Legislature was passed imposing an additional burden upon 'the property of the State in general, or upon any particular property, but the ease is one in which general levies having been made for the years named certain property which ought to have paid taxes under them, and thus contributed its share to the expenses of the State, failed to do so, 'and the effort is to compel that property to discharge its obligation. The objection is not that, the property ought not during these years to have paid its proportion of the taxes, but that if ought not now to be compelled to pay such proportion because certain other property was similarly situated, and no effort is made to compel payment from it. \u2019 \u2019\nThe Supreme Court of Minnesota said in County of Redwood v. Winona & St. Peter Land Co., 40 Minn. 512: 1\u2018 Such statutes are purely remedial in their nature, and only go to confirm existing obligations.\u201d * * * \u201cThe principle of all the cases is that the taxing power, when acting within its legitimate \u00a1sphere, is one which knows no stopping place until it has accomplished the purpose for which it exists, viz., the actual enforcement and collection from every lawful object of taxation of its proportionate share of the public burdens; and, if prevented by an obstacle, it may return again \u00a1and again until, the way being clear, the tax is collected. \u2019 \u2019\nIn the case of King v. Mullins, 171 U. S. 404, the court said: \u2018 \u2018 The judiciary should be very reluctant to interfere with the taxing systems of a State, .and should never do so unless that which the State attempts to do is in palpable violation of the constitutional rights of the owners of property.\u201d\nThe .Supreme Court of California said of an act of the Legislature providing for the collection of delinquent taxes for certain years: \u201cIt is difficult \u00a1to see upon what principle the power of the Legislature to do this can be denied. The Legislature, representing the mass of political powers, is only restrained by express limitations or restrictions in the Constitution. We see no limitations or restrictions on this subject. No obligation of a contract is invaded; property is not taken for public use without compensation; nor is it taken without due course of law. The citizen is only made to pay what he owes, and he is made to pay it in the ordinary mode adopted for the legal coercion of other debts. \u201d * * *\nAnd, again: \u201cThe exercise of the taxing power is a sovereign attribute. The mode of ascertainment iand collection of the tax is a matter of legislative discretion. What the Legislature may do, as a general thing, it may do in its own way .and at its own time. There is a general power to tax; there is no restriction of mode, nor is there any limitation of time by the organic law. Unless restrained by the Constitution, the Legislature have plenary power over the subject. Upon what principie, then, can it be contended that the Legislature can not as well make .a man pay his taxes when, from accident or oversight, or his own remissness, the time for payment has passed, or the mere mode of charging him has not been followed, as they could in the first instance direct the tax?\n\u201cTne question is, as to the mere power of the enforcement of a duty; and the exercise of the power may be made at iany time, so long as the duty remains.\u201d People v. Seymour, 16 Cal. 332.\nThe only question involved in the case of State ex rel. v. K. C. & M. R. & B. Co., 106 Ark. 248, was whether the statute prior to the amendment of 1913 gave the State a remedy by way of review in cases of mere undervaluation of property or only where the assessing boards or officers had proceeded on the wrong basis of valuation, in omitting some property or element of value, or in adopting the wrong basis of estimating value. \"What was said therein as to the finality of the. acts of assessing boards and officers had relation to that issue. It was said to be the declared policy to treat their findings as final except where otherwise expressly provided by statute. No question was raised or decided as to the extent of the legislative power to grant a remedy by review where there had been a mere undervaluation.\nThe acts of assessing officers and boards can \u25a0not be considered as final in the sense that they are beyond the power of the Legislature to provide for correcting them either for fraud or errors of judgment.\n\u201cIt may be that such a law will work inconvenience and annoyance to the citizen, but all tax laws are odious \u25a0and vexatious. It is said the 'citizen ought to know when he is through with the tax gatherer, but he will know when he has paid his taxes on his property according to its value. He will know then that he is secure against reassessment, and the law will protect him.\u201d Street Railway v. Morrow, 87 Tenn. 406.\nThe owner of property which .has for any reason escaped payment of a part of its just share of taxation can not have a vested right to immunity from payment of the balance due. The immunity can exist only so long as there is no remedy for its collection. Such claim to exemption from payment is nota right at all, but rather the failur e to collect is a wrong against the public. There is no direct constitutional prohibition against retrospective legislation, and \u201cthere is no such thing as a vested right to do wrong, and a Legislature, which in its acts not \u25a0expressly authorized by the Constitution, limits itself to correcting mistakes, and to providing remedies for the furtherance of justice, can not.be charged with violating its duty or exceeding its authority.\u201d Chief Justice Parker, in Foster v. Essex Bank, 16 Mass. 245.\nSuch 'acts are of a remedial 'character, and are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power. Freeborn v. Smith, 2 Wall. 160; League v. Texas, 184 U. S. 156.\nWith the justice, wisdom, or policy, or propriety of a statute, the courts have nothing to do if there is no infringement of some constitutional provision. These are matters for legislative determination and the enactment of the statute expresses and declares the legislative judgment. 26 A. & E. Enc. Law 569; Com. Schl Dist. v. Oak Grove Sp. Schl. Dist., 102 Ark. 411.\nIt may be difficult for the reviewing courts to determine, after lapse of time, the true value of property alleged to have been undervalued, but this is not a constitutional objection to the act. The statute does not contemplate that any property will be made to bear .any greater burden of taxation than it would have borne if it had been originally assessed at its proper value. It expressly provides that the court may hear testimony, and that it shall determine the amount due. Kirby\u2019s Digest, \u00a7 \u00a7 7207, 7208.\nIt may not be possible to -ascertain -with certainty the exact value to be placed upon every piece of property so as to make it equal and uniform with the average valuation of -all property. \u201cAbsolute equality and uniformity \u25a0are seldom, if ever, attainable. Shibley v. Ft. S. & V. B. Dist, supra; Stanley v. Supervisors of Albany, 121 U. S. 535.\nIt must ibe presumed that the co-urts will give persua- . sive force to all original assessments fairly made, and will not set them aside on account of mere error in judgment without clear and 'Satisfactory proof. This is demanded by sound policy and the natural justice of the case.\nNo question of innocent purchaser is presented by -the facts of the case, as the appellee has -at all times owned the property involved.\nWe conclude that the statute in controversy is not a statute for the classification of property for taxation. It was a legislative determination that property then within the jurisdiction -of the State had in past years escaped the payment in whole or in part of its just proportion of the burden of taxation, by reason of not having been -assessed -and valued upon a wrong basis or by reason of having been undervalued, and that it was for the best interest of the State that a remedy should be provided whereby the amount which should have been assessed against certain property may be ascertained -and the property forced to -contribute the full -amount of its proportionate -share of taxation. We can not -say that the f ailure to include within its terms individual as well as -corporate property was an arbitrary discrimination against corporations. It -can not be presumed that its enforcement will result in -unequal taxation. It should rather tend to make it equal and uniform.\nThe payment of a part -of the amount justly due did not release the tax debtor from his obligation to pay the balance. That one is compelled to pay what he justly owes while others are not sued, is not an infringement of any -constitutional right, nor even -a. just -cause of complaint. To compel all to be sued might result in such a burden of litigation as to make it not worth while to sue any. This was a matter for the exercise of the legislative judgment and discretion.\nThe legislative power to provide for the collection of taxes remaining unpaid by reason of an insufficient assessment or a failure to assess, can not be made to depend upon the cause or reason for the insufficient assessment or omission to assess; nor upon whether the action complained of was actually or constructively fraudulent, or the result of a mere error of judgment; nor upon whether there was a gross undervaluation or an undervaluation in less degree; nor, upon whether the property escaped taxiation entirely or only in part; nor whether the amount due is large or small.\nSection 5, article 16, of the State Constitution, is satisfied by assessments and fixed methods of 'Collection of taxes according to the same rate and proportionate valuation and applies to prospective statutes, only. It has no \u25a0application to statutes which only provide a remedy for the collection of taxes already past due. It was not intended to afford constitutional protection to the owner of property which has escaped taxation against the enforcement of his obligation unless all others similarly situated are compelled to pay.\nWhile the general jurisdiction of courts of equity to correct errors in assessments is confined to cases of fraud or mistake, the power of the Legislature in that respect is not limited.\nThe fact that no statutory remedy exists for the correction of an erroneous assessment 'at the time it is made does not preclude the Legislature from granting a remedy at a subsequent time. We are unable to find that the act in controversy violates any constitutional provision of either the State or Federal Constitution.\nThe complaint states a cause of action within the provisions of the statute, 'and it .therefore follows that the chancery court erred in sustaining the demurrer thereto and in dismissing the suit.\nThe cause is reversed and remanded with instructions to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.\nWood, J., dissents.\nSmith, J., disqualified.", "type": "majority", "author": "McGill, Special J.," } ], "attorneys": [ "Win. L. Moose, Attorney General, and A. B. Shafer .and C. H. Trimble, Special Counsel, for appellant.", "Rose, Hemingway, Cantrell, Loughborough \u00a3 Miles, W. J. Orr, Moore, Smith.\u00a3 Moore and W. F. Evans, for appellee." ], "corrections": "", "head_matter": "State ex rel. Wm. L. Moose, Attorney General v. Kansas City & Memphis Railway & Bridge Company.\nOpinion delivered November 16, 1914.\n1. Statute\u2014construction\u2014prospective operation.\u2014All statutes are to be 'Construed as having only a prospective operation, unless the purpose and Intention of the Legislature to give .them a retrospective effect is expressly declared, or is necessarily implied from the language used.\n2. Taxation\u2014back taxes\u2014collection.\u2014Kirby\u2019s Digest, \u00a7 \u00a7 7204-7213, as amended by Acts of 1911, p. 324, and Acts of 1913, p. 724; held, to afford a remedy for the collection of back taxes, and that it 'was retrospective in its nature, independent of any express declaration therein, to that effect.\n3. 'Statutes\u2014amendments\u2014construction.\u2014Amendments are -to be construed together with the original act to which they relate, as constituting one law.\n4. Taxation\u2014back taxes\u2014collection\u2014remedy.\u2014The object of Act 169, Acts 1913, p. 724, amending Act 354, Acts 1911, p. 324, was to give a complete remedy for the- recovery of back taxes due by a corporation upon any property then in the State, which belonged to any corporation at the time such taxes should have been properly assessed and paid.\n5. Taxation\u2014back taxes\u2014collection.\u2014Act 169, p. 724, Acts 1913, amending Act 354, p. 324, Acts 1911, providing for the collection of back taxes due by a corporation, has the effect of bringing forward the unamended sections of the latter act, and making these a part of a complete act which operates retrospectively from the date of the amended act, the same as if the said amended act bad been repealed and a new, independent, and complete act bad been passed.\n6. Taxation\u2014back taxes\u2014collection\u2014dub process.\u2014Kirby\u2019s Digest, \u00a7 \u00a7 7204-7213, as amended by Act 354, p. 324, Acts 1911 and Aot 169, p. 724, Acts 1913, providing for the collection of back taxes, due on property belonging to corporations; held, to be a proper exercise to -the State's righit of taxation, and nut to be in violation of the Federal Constitution, .as denying to corporations equal protection of the laws, or depriving them of .property without due process of law.\n7. Taxation\u2014erroneous assessment\u2014collection of back taxes.\u2014 Where erroneous assessments of property for taxation have been made, the Legislature may. toy .retrospective legislation provide a .remedy for the collection of the same.\n8. Taxation\u2014acts of assessing officers\u2014finality.\u2014The Legislature has the power to provide for correcting the acts of assessing boards and officers, for fraud 'or errors of judgment.\n9. Taxation\u2014back taxes.\u2014The owner of .property which has for any reason escaped payment of a part of its just share of taxation, can not have a vested right to immunity from payment of the \u25a0balance due.\n10. Taxation\u2014back taxes\u2014legislation authority.\u2014The fact that no statutory remedy exists for the correction of an erroneous assessment at the time it is made, does not preclude the Legislature from granting a remedy at a subsequent time.\nAppeal from Crittenden Chancery Court; John M. Rose, Special Chancellor;\nreversed.\nSTATEMENT BY THE COURT.\nMarch 1, 1887, the Arkansas General Assembly passed an act to provide for the collection of overdue taxes from corporations doing business in the State. Acts of 1887, p. 33; Kirby\u2019s Digest, \u00a7 \u00a7 7204 to 7213, inclusive. It was amended by an act of May 30,1911, as to the 'compensation to be paid to counsel employed to assist the Attorney General. Acts of 1911, p. 324. The title of that act was \u201cAn act to amend section 7204 of Kirby\u2019s Digest of the Statutes of Arkansas, which provides for the collection of overdue taxes form corporations.\u201d It divided the original section into sections 1 and 2, the latter section containing the amendment. Section 3 repealed conflicting laws and put the act into effect from the time of its passage. The first section of the act, section 7204, was further amended by the act of March 12, 1913, which is entitled \u201cAn act to amend section 1 of Act No. 354 o\u00ed the Acts of 1911, approved May 30,1911. \u2019 \u2019 Section 2 repealed \u25a0all laws in conflict and \u00a1added an emergency clause. Acts of 1913, p. 724. Section 7204, as amended, with the words added by the amendment in italics- and those omitted from the original section in brackets, reads as follows:\n\u201cWhere the Attorney General is satisfied from his own investigation, or it is made to appear to him! by the statement in writing of any reputable taxpayer of the State, that in consequence of the failure from any cause \u25a0to assess and levy taxes, or because of any pretended assessment and levy of taxes upon any basis of valuation other than the true value in money of any property hereinafter mentioned or because of cmy inadequate or insufficient valuation or assessment of such property, or undervaluation thereof, or from any other cause, that there are overdue and unpaid taxes owing to the State, or any county or municipal corporation, or road 'district, or school district, by any corporation, (or) upon any prop-' erty now in this State which belonged to any corporation at the time such taxes should have been properly assessed and paid, that it shall become his duty to at once institute a suit or suits in chancery in the name of the State of Arkansas, for the collection of the same in any county in which the corporation owing such taxes- may be found, or in 'any county in which any part of such property as may have escaped the payment in whole or in part of the taxes as 'aforesaid may be situated, in which suit or suits the corporation owing such taxes, or any corporation (or person) claiming an interest in any such property as may have escaped taxation as aforesaid, shall be made a party defendant, and the Governor is authorized to employ any \u25a0attorneys that may be necessary to assist the Attorney General in such suits ;\u25a0 provided, that this act shall be construed as retrospective as well as prospective in operation.,\u201d .\nSection 7205 provides for constructive service where actual service can not be had.\nSection 7206 provides that the complaint shall describe as nearly as may fee the property on which \u00a9aid taxes \u00a1have accrued, and that the State, counties, school districts iand municipal corporations \u00a1aforesaid shall have a lien on \u00a9aid property from the passage of this act, for the payment of \u00a9aid overdue taxes, to fee enf orced fey suit as herein provided.\nSection 7207 provides that upon final hearing the court shall determine the amount of \u00a9\u00a1aid State, county, school 'district and municipal taxes, 'and the penalty -and costs due on the same, if any, and to 'whom said taxes are payable, \u00a1and shall decree payment thereof 'accordingly; that when for any reason any of the property has not been assessed, the court shall refer the matter of- such assessment to the county assessor who shallmaikehis assessment for the past year or years mentioned in the order of reference, iand return the same into court; 'and provides for a like reference of the assessment of delinquent railroad property to the proper officer or commissioners who shall report their assessment to the court, .and that the court shall have power to hear testimony and to change \u00a9aid assessment as justice 'and equity may require.\nSection 7208 provides for the rendition of a decree declaring and enforcing the lien for such taxes by a sale of the property; and in case of a railroad, the lien shall he decreed against the whole line of the road, including the main line and sidetracks, switches, turnouts, improvements, stations, structures, rights-of-way, embankments, tunnels, outs, ties, trestles, bridges, and all lands in the State belonging to such corporations; and that the taxes shall be paid within three months after rendition of decree, with a penalty of ten per cent per annum after default.\nSection 7209 provides that the sale shall he made in the same manner as other sales in foreclosure of liens in chancery, and with like effect, 'and for a distribution of the funds 'Owing the State, counties, etc., entitled thereto.\nSection 7210 gives all parties interested in the property the right to redeem within one year from date of sale, by paying into court the amount of the decree 'and penalty on \u00ab\u00a1amo, at the rate of 25 per cent per \u00a1annum.\nSection 7211 provides for \u00a1the execution of deed to purchaser if no redemption is made.\nSection 7212 gives precedence to the suits -and Emits time for taking appeal to thirty -days from date of the decree.\nSection 7213 provides that the decree in \u00a1the suit shall be for all taxes due the State, -and to the \u00a1counties, cities and other -politi-cal subdivisions of the State, and tha-t it shall not be confined to the taxeis due- in the county in which the suit i-s brought.\nPrior to the passage -of the -act \u00a1of 1913, the State, on the relation of the Attorney General, filed \u00a1a suit in the chancery court of Crittenden County, -against the Kansas City & Memphis Railway & Bridge Company to \u00a1collect back taxes on its railroad and bridge property, alleging that it 'had not been -adequately -assessed for the years 1893 to 1910, inclusive.\nA general demurrer to the complaint was sustained \u00a1and the decree dismissing the- action was -affirmed by this court. State ex ret. Atty. Geni. v. K. G. & M. B. d> B. Co., 106 Ark. 248.\nIt was held that the statute only gave the State -a remedy by \u00a1way of review by the courts where the \u00a1assessing boards or officers had proceeded on th-e wrong basis of valuation, in omitting -some property or element of value, or in adopting the wrong basis of estimating value, and that it -did not authorize \u00a1a review whereby -a mistake -had been made in assessing value -of property too low. The \u00a1amendatory act of 1913 was passed \u00a1shortly -afterward, \u2022and the present suit was filed in the same chancery court against the s-ame defendant, to recover the hack taxes on the same property for the years 1893 to 1912, inclusive.\nThe complaint -alleges that the defendant is a railroad corporation organized under the laws of Arkansas; that in 1892 it built a railroad -and a bridge across the Mississippi River opposite Memphis, Tennessee; that one-half of -said property is \u00a1situated in Crittenden County, Arkansas, in School District No. 8, and Road District No. 1; that the defendant now owns and has \u00a1always owned, said property in fee, and that it was subject to taxation in said county; that it was assessed in each of said years for tax-' \u00a1ation at less than one-sixth of its \u00a1actual and true value; that the assessments upon whi,ch the -defendant 'has paid taxes for each of \u00a1said years has been upon 'an inadequate and insufficient valuation and upon an undervaluation thereof, and that \"there were overdue taxes -owing by the defendant -on said -property of not less than $800,000. Prayer for decree -ascertaining the true .amount of taxes which should have- been paid \u00a1and for the recovery thereof.\nA general -demurrer to- the complaint was sustained and the -cause dismissed. Plaintiff appealed.\nWin. L. Moose, Attorney General, and A. B. Shafer .and C. H. Trimble, Special Counsel, for appellant.\nRose, Hemingway, Cantrell, Loughborough \u00a3 Miles, W. J. Orr, Moore, Smith.\u00a3 Moore and W. F. Evans, for appellee." }, "file_name": "0606-01", "first_page_order": 632, "last_page_order": 652 }