Adams, State Revenue Agent v. Lamb Fish Lumber Co

• Decision Date: 21 May 1917
• Citation: 75 So. 378,114 Miss. 534
• Court: Mississippi Supreme Court
• Parties: ADAMS, STATE REVENUE AGENT v. LAMB FISH LUMBER CO

75 So. 378

114 Miss. 534

ADAMS, STATE REVENUE AGENT v. LAMB FISH LUMBER CO

Supreme Court of Mississippi

May 21, 1917

March 1917

Division A

APPEAL from the chancery court of Tallahatchie county, HON. JOE MAY Chancellor.

Suit by Wirt Adams, State Revenue Agent, against the Lamb-Fish Lumber Company. From a judgment for the defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Case reversed and remanded.

Mayes Wells, May & Sanders, for appellant.

The sole question presented for consideration and determination by the court is as follows: Is the appellee liable for taxes on its property situated within the town of Charleston on the first day of February, 1911, which was placed outside the municipal boundaries by the ordinance passed in May, 1911? If this question be answered in the affirmative, the decree of the court below should be reversed and the cause remanded for an accounting and decree for the amount of taxes.

Our contention is, that the liability for taxes is fixed by the statutes and decisions as of February 1, 1911. The code sections dealing with the questions which are material to this investigation are the following: Section 4257 of the Code of 1906, provides as follows:

"All taxable property brought into the state or acquired or held by any person before the first day of February, shall be assessed and taxes thereon be paid for the current year.

Also 4258 Real and Personal property. Section 4264. Each person shall make out and deliver list of his personal property possessed by him on February first. Section 4280 reads as follows:

"Lands shall be assessed between the first day of February and the first day of July for the year 1906, between the first day of February and the first day of July for the year 1909, and every two years thereafter. (See Sec. 4261.)"

Section 3317, in the enumeration of powers conferred upon municipalities, reads as follows: "To levy and collect taxes upon all the real, mixed and personal property within the corporate limits taxable according to the laws of the state, the description and valuation of such property to be copied from the assessment rolls of the county: For general revenue purposes, not to exceed six mills on the dollar in any one year; for general improvements, excepting improvements for which special assessments are levied, not to exceed six mills in any one year. But a village with less than three hundred inhabitants shall never levy a tax on real or personal property to exceed, for all purposes, four mills on the dollar for any one year. In cities of over five thousand inhabitants, a tax not exceeding twenty mills on the dollar may be levied for general revenue and improvements and special school systems, each, but this shall not authorize the levy of a tax in excess of the limit on the power of taxation by such city, now fixed by law, unless the same be authorized by a majority vote of the qualified electors." Section 4255, provides, among other things: "All taxes assessed shall be a lien upon and bind the property assessed, from the first day of February of the year in which the assessment shall be made."

Section 3241, provides among other things, that municipal assessments shall be made by copying from the county assessment rolls, all property thereon, which is located in the municipality.

Section 3424, provides in substance, that municipal tax collectors shall be governed by the general revenue laws in making collection of municipal taxes.

Section 2425, provides that municipal tax collectors shall be governed by the general revenue laws in making sales of delinquent tax lands.

In the case of the Vicksburg Water Works v. Adams, 80 Miss. 68, this court held that all taxes are a lien on property situated within the State as of the first day of February, without regard to when assessment is made or when the levy is made. That when an assessment and levy are made the tax liability relates back to the first day of February. Deason v. Dickson, 54 Miss. 585; McHenry Baptist Church v. McNeil, 86 Miss 22; Gulfport v. Todd, 92 Miss. 428.

It thus appears that the court has settled in the case of McHenry Baptist Church v. McNeil, cited supra, that where the property is liable on the first day of February, a character of non-liability acquired thereafter, will not defeat the collection of the taxes for that year.

Tim E. Cooper, for appellee.

Reduced to its simplest form, our contention is that the municipal authorities had no jurisdiction over the res--the thing sought to be taxed -- when the imposition of the tax was made.

Counsel for the revenue agent assume that the jurisdiction existed, because, and because only, if it did exist when exercised, it related to a past day, the 1st of February. The question has been distinctly decided by this court in the case of Deason v. Dixon, 54 Miss. 585.

In that case it appeared that a part of the Deasons' land was within the city limits when the taxes became due and payable, but had been exercised before the day for selling delinquent property arrived.

I now take up the opinion delivered in that case, and quote from it, substituting for the words "tax collector" the words "municipal authorities" and for the words "sell property for taxes" the words "impose taxes." I make no other change.

I now ask the court to verify what I write by reference to so much of the opinion as follows the tenth line from the bottom of page 588. The opinion thus paraphrased, reads: "The authority of municipal authorities is limited to the territory of the municipality. The power to subject property to taxation is stricti juris and must be clearly given before it can be exercised. The excission of territory from the district of a municipality must terminate the power of the municipal authorities to tax it, unless otherwise provided by law. There is something so incongruous in the idea of the authorities of one county taxing real estate in another, or of municipal authorities imposing taxes on property in the county that nothing short of an express statute would seem to warrant it."

"If the state of Mississippi should cede a part of her territory to the state of Alabama, no one would contend that Mississippi authorities could thereafter assess and tax any portion of the territory so ceded. The comparison, if not entirely parallel, is analogous. Apart from the fact that the states are, as to each other, separate governments, the principal difference would seem to be that when the territory is transferred from the city to the country, or from one country, or from one county to another, the legislature making the change may adopt such regulations as it chooses; whereas, when the cession of territory is from one state to another, the regulations as to unpaid taxes must be jointly agreed on by both states. But in the case at bar, the legislature failed to make any provision on the subject. The power of the city authorities to tax the land cut off from its limits is, therefore, lost."

I cannot make a more complete reply to opposing counsel than is made in this case. As, however the taxes had been imposed and were due before the land was excised, and since the statute, Code of 1871, section 1665, provided that: "All taxes assessed shall be a lien upon and bind all the property real and personal, of the party assessed," it was held that while the excised land could not be sold, the land remaining in the city could be sold for the taxes. Aside from the decision in Deason v. Dixon, the question had been distinctly decided in other states. Gilmer v. Dale, 27 Utah 372; Richards v. Daggett, 4 Mass. 534.

Counsel for the appellant states in his brief that the property of the appellee was excised upon its application. How this fact could change a legal principle; how it could confer a power to tax upon the municipal authorities, I do not perceive. But if extraneous matters are to be injected by argument of counsel, in fairness, he should also have said that throughout all the years in which the property of the appellee was in the town limits, it paid its full share of the taxes of the town, and that not one dollar had ever been expended in the territory where the property was located.

The revenue agent is suing to collect an alleged debt. There is no debt due without an assessment. State of Mississippi v. Adler, 68 Miss. 487; Thibodeaux v. State, 69 Miss. 683. No assessment could be made because the property was not at the time within the corporate limits of the town, wherefore, the municipal authorities had no jurisdiction to tax it.

J. H. Caldwell, for appellee.

The issue in this case is clear cut and involves only one question, viz.: When property is, by proper ordinance, excluded from the corporate limits of a town, on May 1, 1911, before the assessment roll has been returned and approved, and before any tax levy has been made, is it subject to municipal taxes for the year 1911?

Appellant concedes that the property could not be sold; that is, the tax lien does not exist, but contends that there is a personal liability for the taxes. No decision of this court has been made on the exact point involved. The provisions of the Code set out in full by appellant's counsel do not settle the question.

The case of Vicksburg Waterworks v. Supply Co., 80 Miss 68, cited by counsel is rather authority for the appellee. In that case, the court decided that the law fixed a lien for taxes as of February 1st, and when the amount was fixed by the assessment and levy, it related back to February 1st. Now, we do not take issue with the holding in this case, but contend that when the assessment and levy were made, it could not "relate," back to February 1st., because the property was not in the municipality,...