8 So. 236 (Miss. 1886), McCulloch v. Stone

Citation:8 So. 236, 64 Miss. 378
Opinion Judge:COOPER, C. J.
Attorney:Calvin Perkins, for the appellant. Calvin Perkins, for the appellant, argued the case orally. T. M. Miller, Attorney General, for the appellee. Nugent & McWillie, on the same side. W. A. Percy, on the same side. W. A. Percy also argued the case orally.
Court:Supreme Court of Mississippi

Page 236

8 So. 236 (Miss. 1886)

64 Miss. 378




Supreme Court of Mississippi

October, 1886

APPEAL from the Circuit Court of Hinds County, HON. T. J. WHARTON, Judge.

The case is sufficiently stated in the opinion of the court.

Judgment reversed and cause remanded.

Calvin Perkins, for the appellant.

1. The sale to the levee commissioners in May, 1872, was void, because the land was at the time on the State's delinquent lists, held there under the sale of 1862, and ten years of valid State and county taxes had accrued against it while so held, notwithstanding that such sale was ineffectual to pass title to the State, because "war taxes" were charged against the land at the sale along with other valid taxes. For ten years the tax collectors in their settlements with the auditor had been allowed a credit for this land, as the property of the State not subject to sale, and on which they had no power to receive the taxes.

2. Has the railroad acquired the State's claim under the conveyance executed by the auditor?

The act of 1884 (page 182) made the auditor the person to execute the conveyance, because the records of his office show the exact status of every piece of land in the State, so far as taxes are concerned. A mere inspection of those records would show whether there were any, and what liquidating levee taxes unpaid, the same as to No. 1 levee taxes, and the same as to State and county taxes. And it directed him not to execute any such quit-claim "unless all State, county, and levee taxes shall have been paid." It was a mere clerical, a ministerial act, for the auditor to look at his record books (and not to any matter in pais), and determine whether or not there were any unpaid taxes upon the land in question. If he found that there were, then it was his duty to desist. That land did not belong to the class of lands which he was authorized to quitclaim, and would not, until all State and levee taxes shall have been paid. Paid how? Not to the auditor under that act, for nowhere does the act say that the auditor shall under its provisions and terms collect the taxes, but it leaves the same to be paid as the law then in existence, or which might thereafter be enacted, should require.

But it is said that the proviso, wherein mention is made of the Memphis and Vicksburg Railroad, discloses an intention that the auditor should collect taxes under that act, according to its terms. Not so. According to the railroad charter, the company had a virtual exemption as to its current taxes by presenting a proper affidavit to the tax collector, and the failure to present that affidavit within the time required to pay taxes would subject the property to sale, just as the failure of an individual would subject his to sale. Now as to the taxes from 1875 to 1881 inclusive, there can be no pretense that the railroad charter had any application, as the land was not purchased by the railroad company until 1881.

But the exemption claimed in the railroad charter itself is null and void, such discrimination in favor of one particular individual or corporation being prohibited by §§ 5 and 20, article xii, of the constitution. Miss. Mills v. Cook, 56 Miss. 40.

It was permissible to exempt in that manner all property invested in railroad enterprises or to exempt all lands, but certainly not to exempt the lands of certain particular railroads and no other, and that, too, when they are not used for railroad purposes. The original § 21 of the charter of the Mobile and Northwestern Railroad will not fairly bear the construction that it covers any but property used for railroad purposes, but subsequent legislatures have passed acts by way of "legislative construction" which now give color to the claim that the exemption covers all property owned by the railroad corporation, no matter for what purpose it is used or held. The framers of the constitution builded wisely when they prohibited the legislature from making any such odious discriminations in exercising the taxing power.

3. Can the validity of the patent, executed by the auditor, be questioned in this proceeding?

In Jackson v. Dilworth, 39 Miss. 773, it was established that the execution of a void patent by the secretary of State was no bar to a mandamus proceeding to compel him to issue a second one upon proper application. This case was cited and approved in Clement v. Anderson, 46 Miss. 601, and the same doctrine is announced in Myers v. State, 61 Miss. 138.

Patents were collaterally impeached in Stoddard v. Chambers, 2 How. (U. S.) 284; 7 S. & M. 363 and 366; 4 S. & M. 40 to 49; Graham v. Smith, 1 Humph. 546; Rainey v. Aydelette, 4 Heisk. 123.

The two last cases were mandamus cases and second patents were awarded, notwithstanding the issuance of prior void ones.

Calvin Perkins, for the appellant, argued the case orally.

T. M. Miller, Attorney General, for the appellee.

If the lands were properly sold for the tax of five cents per acre, commonly called the liquidating levee tax, then petitioner is without any case, for by the very terms of the act of 1867 (constituting an irrepealable contract between the State and the holders of bonds issued under that act) the lands were made exempt from all other taxes--hence sales--until redeemed or purchased, so that title could not have been acquired by the State under the alleged sale in May, 1875. Green v. Gibbs & Hemingway, 54 Miss. 593; Mayer v. Peebles, 58 Miss. 628.

Now, the only ground upon which the sale to the liquidating levee commissioners is assailed was the non-liability of the lands to the tax in view of the previous sale to the State (1862). But the sale in 1862 was absolutely void for the reason that a part of the State tax for the fiscal year 1861 was levied in aid of the Rebellion. All acts of the State government in furtherance of the war then being prosecuted against the Government of the United States were nullities. Shattuck v. Daniels, 52 Miss. 834.

If the sale of 1862 was void, it is shocking to common sense to say that the lands conveyed under it were held by the State, and, therefore, exempt from the levee tax.

Assuming for the present that it may be made the subject of inquiry at the instance of any person desiring to purchase the lands, was the alleged act of the auditor (Gwin) in quit-claiming the State's title to the railroad company void because he (for the State) received no consideration? The judgment of the lower court does not depend upon an affirmative answer by this court, still, on account of the magnitude of interests involved to hundreds of persons, who have purchased lands from the company and from others on the idea that all the tax-titles had been quieted, it is hoped the question will be considered as presented and settled once for all, and especially since no limitation runs against the State.

The act of 1884 provided imperatively in the first section that the auditor should make to all purchasers of land under the chancery decree quit-claim deeds conveying to them any title the State might have to the same upon payment of all levee taxes.

Section 2 provided that such quit-claim deed should not be made unless all State, county, and levee taxes due on the land should have been paid, with a proviso that the auditor should not require the Memphis and Vicksburg Railroad Company to pay any State and county taxes therefor due from which it was exempted by the terms of its charter or any act of the legislature passed prior to 1884.

What was the duty of the auditor, when the company made application for the quit-claim deed under that act? First, he was required to ascertain what, if any, taxes were due upon the land. If none were found to be due (and his judgment was conclusive so far as this proceeding is concerned), then it was his duty to make the deed. If levee taxes were due, the State would not be concerned with his failure to collect them. If State and county taxes were found to be due, then his next inquiry would be whether or not the lands in the hands of the railroad company were exempt from taxation.

By the act of making the deed without collecting any taxes, the auditor adjudged either that no taxes were due upon the lands, or that they were lands of the railroad company exempted by its charter. It must be presumed that he found the taxes had been paid, upon proper evidence. They were payable, if at all, to the tax collector of the county.

I leave the matter of the exemption to be presented by the counsel for the company, who, in the interest of justice and fair dealing, have been allowed to take part in the argument of this case.

I think no authority need be here cited that mandamus will not lie to review the exercise of judicial or even quasi judicial power, such as was vested in the then auditor of public accounts by the act of 1884.

The Attorney General also made an oral argument.

Nugent & McWillie, on the same side.

1. The first objection to the petition is that the petitioners do not show a clear and specific legal right to the relief claimed. Their titles all rest upon a tax-sale to the State made in 1862 for the taxes of 1861. A large part of these taxes was for war purposes and, therefore, illegal, and the sale, being for taxes in part illegal, is of no validity whatever. Dogan v. Griffin, 51 Miss. 784; Shattuck v. Daniel, 52 Miss. 836; Gamble v. Witty, 55 Miss. 37; Smith v. Nelson, 57 Miss. 138; Mayer v. Peebles, 58 Miss. 628.

2. The question now sought to be reopened is res judicata. The suit of Joshua Green, holder of liquidative land bonds, was brought in 1877 to enforce a trust in the lands held by the liquidative levee...

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