Adams v. Capital State Bank

• Decision Date: 23 November 1896
• Citation: 74 Miss. 307,20 So. 881
• Court: Mississippi Supreme Court
• Parties: WIRT ADAMS, STATE REVENUE AGENT, v. CAPITAL STATE BANK

20 So. 881

74 Miss. 307

WIRT ADAMS, STATE REVENUE AGENT, v. CAPITAL STATE BANK

Supreme Court of Mississippi

November 23, 1896

October 1896

FROM the chancery court, first district, of Hinds county HON HENRY C. CONN, Chancellor.

The court below having entertained jurisdiction of this case, the question as to whether it were or were not equitable in character did not arise in the supreme court, by reason of the provisions of sec. 147, constitution of 1890, which provides: "Section 147. No judgment or decree in any chancery or circuit court, rendered in a civil cause, shall be reversed or annulled on the ground of the want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common law jurisdiction; but if the court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case the supreme court may remand it to that court, which, in its opinion, can best determine the controversy."

The facts appear in the opinion.

Decree affirmed.

Mayes &amp Harris, for appellant.

The ordinance, as set forth in the record adopted by the city, made a levy which was extended by its very terms over all of the taxable property of the city, and the subsequent attempt in the ordinance to except banks out of that general levy, was a simple nullity. It did not so except out of the operation of the general levy banking property, and did not operate to qualify or restrain the operation of the general levy. It was pure surplusage under the operation of the doctrine, utile per inutile non vitiatur. The simplest rhetorical analysis of the ordinance will show this is true. It is easily and simply severable into two distinct portions. First, there is the portion making the general levy and extending the same over the taxable property of all the city, and that including all of the taxable property in the municipality, except such as was exempt by operation of law. Then comes the attempt to except out of the operation of this general levy, as a distinct movement or mental operation, or consideration, the special property of banks and solvent credits. The board being without authority to make any such exception, their attempt to do so is a simple nullity. It is not a case in which there never has been arty levy, as contended for. It is a case in which there was a levy; and the law does not.require that in making a levy the board shall have present in its mind a distinct mental conception of every piece of property on which, and to which, the levy, when made, shall rest and attach. The making of the levy is done by the general declaration that the sum of so many mills ad valorem is fixed upon the property of the city; and the exception whereby it was attempted to narrow and restrain is within the operation of the maxim cited above. That maxim has been applied under all sorts of conditions. In Grand Lodge v. New Orleans, 46 La. Ann., 717, it was applied to a constitutional provision. In Sheadon v. Harris, 27 Fla., 245, it was applied to a verdict. In re Upchurch, 38 Fed. R., 25, it was applied to an act of Congress. In Crawley v. Commonwealth, 193 Penn. St., 275, it was applied to a bond. In Gibbs v. Wall, 10 Colo. 153, applied to a bill of exceptions. See, also, Fletcher v. Massey, 49 Ill. App. , 36; Robertson v. Commonwealth (Va.), 20 S.E. Rep., 362; Stewart v. Collier, 91 Ga., 117; State v. Hanger, 5 Ark., 412; 1 Desty on Taxation, 198; St. Mary's, etc., v. City New Orleans, 47 La. Ann., 205.

Brame & Alexander, for appellee.

The revenue agent is a mere collector. He has no power to assess or levy taxes. If a levy is not made, steps may be taken to enforce the performance of duty on the part of the officers who should make the levy; or, if an improper or insufficient levy is made, the remedy is by appeal. In the matter of a tax sale, it has often been held that there are three fundamental things necessary to be shown: (1) A valid assessment, (2) a valid levy, and (3) a legal sale. We doubt if the power could be conferred upon a revenue agent to make a levy nunc protune where no levy has been made. But whether this is true or not, we submit that the act of 1894, under which the revenue agent is authorized to bring suits (Laws, 29) does not include a case of this kind. In order to confer power upon a revenue agent to sue in any case, there must be express legislative authority. It is not pretended that there is any provision in the act of 1894 authorizing the revenue agent to bring this suit unless it is to be found in the general provision that he may sue in all cases where the municipality might sue. This case does not come within the contemplation of that provision of the statute. It will hardly be contended that there is any authority for a municipal corporation to bring innumerable suits against taxpayers who have failed to pay taxes, and especially where the same have never been levied. If this could be done, why not dispense with all assessments and levies and collect all taxes by suits? As to the strict construction applicable to the power of the revenue agent in cases of this character, we refer to The State v. Adler, 68 Miss. 487; Thibodeaux v. State, 69 Miss. 683; State v. Vicksburg Bank, 69 Ib., 99. That the levy of a tax is a fundamental requirement, see Virden v. Bowers, 55 Miss. 1.

Calhoon & Green, on same side.

The truth is, the question involved is not one of revenue, but one of discrimination, and with that question we confidently assert that the state revenue agent has nothing to do. The necessary revenue was had. Discrimination is the only complaint remaining, and neither the city nor the agent can complain of this. Only a taxpayer can, and he only by appeal. It cannot be disputed that a municipality is powerless to levy a tax or collect a tax without express legislative authority. No legislative authority, no municipal tax. A void legislative authority, a void levy, and this to the amount unauthorized. If the tax be limited to six mills when it should or might have been fourteen and a half mills, then the levy is, or collection is, certainly void as to the difference, if not in toto. If no authority to levy any tax, may the city levy? The question is not what the legislature should have done, but what it actually did do.

In the case at bar there were only two parties to the judgment, namely, the municipality--that is, the body of taxpayers on the one side, and the Capital State Bank on the other, and neither appealed or is now complaining. The mayor and board of aldermen was simply the court which decided between them. The assessor, representing the municipality the body of the taxpayers--presents his roll. Here is the actor. The Capital State Bank is supposed to be present. Here is the res. Where is the court? Why, the mayor and board of aldermen, of course. Here, and only thus, do we have the indispensable constituents in the disposition of causes a plaintiff, a defendant, and a court. The court can never be aggrieved; it can never appeal from or collaterally attack its own judgment. The city, by its board, was the court. The city, through its taxpayers, might appeal, but the time has elapsed. The bank might appeal, but the time has elapsed. The court never can complain in any way or anywhere that its own judgment is a nullity, and, if it cannot, neither can the revenue agent. If the municipal court might proceed at all, very manifestly it could only do so by a reconvention and a new levy. But it is powerless to do this. It can act only under the authority of some law, and no statute can be found empowering a levy in one year for antecedent years.

The position that the general assessment and general judgment are valid, but the exceptions as to banks or solvent credits is void, is not tenable. It is difficult to conceive of a judgment of this kind being partly valid and partly void. This might be urged with some plausibility if there was any voidness about it, if only the first clause of the city ordinance making the levy stood by itself. The first section of that ordinance imposes the annual tax on all property "except" banks and solvent credits, but, as a distinct judgment of levy, section 2 of the ordinance distinctly fixes the levy upon them, and, undoubtedly, that is the judgment which affects the defendant, and from which neither he nor any taxpayer appealed, and is conclusive in this case as to the parties to this suit, even if the act and ordinance were unconstitutional. Barings v. Dabney, 19 Wall., 1.

Argued orally by Edward Mayes and J. B. Harris, for appellant, and by S. S. Calhoon and L. Brame, for appellee.

All the counsel argued the constitutional question elaborately in their briefs, but, as the court did not decide the same, such parts of the briefs are wholly omitted from this report.

OPINION

THOMPSON, Sp. J.

This suit was instituted by the revenue agent, a state officer who, under the provisions of law (Laws 1894, 29-31, sec. 2), has power "to proceed by suit . . . against all officers, county contractors, persons,...