Adams v. First Nat. Bank of Greenwood

• Decision Date: 03 February 1913
• Docket Number: 16,327
• Citation: 60 So. 770,103 Miss. 744
• Court: Mississippi Supreme Court
• Parties: WIRT ADAMS, STATE REVENUE AGENT, v. FIRST NATIONAL BANK OF GREENWOOD

60 So. 770

103 Miss. 744

WIRT ADAMS, STATE REVENUE AGENT, v. FIRST NATIONAL BANK OF GREENWOOD

No. 16,327

Supreme Court of Mississippi

February 3, 1913

APPEAL from the chancery court of LeFlore county, HON. M. E. DENTON Chancellor.

Suit by Wirt Adams, state revenue agent, against the First National Bank of Greenwood. From a decree sustaining a demurrer to the bill of complaint, plaintiff appeals.

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

Affirmed.

Cutrer & Johnston, attorneys for appellant.

If the order of the board of supervisors complained of is clearly void upon its face, and we frankly state that we are of the opinion that it is, there would then be no necessity for the prosecution of this cause before the chancery court, inasmuch as the plain remedy would be to object to the introduction of the order on the trial of the cause in the circuit court, but no lawyer, however careful he may be, can state with absolute certainty what view a court will take of a matter of this kind. As above stated we say frankly that in our judgment the order complained of is void on its face for the reason that there is nothing in the order to show jurisdiction in the court.

The power of the board to make assessments is statutory, being conferred by section 4303 et seq. of the Code of 1906. Hence the record of the board of supervisors in matters relating to the approval or disapproval of assessment rolls is governed by the rule of law applicable generally to courts of special and limited jurisdiction, which rule of law is that the jurisdictional facts must appear in the face of the record. Garner v. Webster County, 79 Miss. 568; Craft v DeSoto County, 79 Miss. 618; Morgan v. State, 79 Miss. 659; White v. M. B. & A. R. R., 64 Miss 571; 23 Cyc. 1082 and note.

Our contention is that the order of the board should have shown that there was pending before it a matter relating to the additional or back assessment of the property of the First National Bank, theretofore made by a competent authority and up for approval or disapproval and that without this showing nothing can be presumed in favor of the judgment, and even in the absence of proof of the fact that there was no such matter pending, the order will be held void, but however this may be, inasmuch as it is not possible to determine what view of this question the learned judge of the trial court will take and, apprehending that it is possible, though we cannot conceive that it is probable, that the judge of the circuit court might hold the order complained of to be a valid order, we insist that the chancery court should have overruled the demurrer, tried the cause on its merits, and if upon full trial it should be shown that the order of the board was taken as the result of a fraud perpetrated upon the board, or that the order was the result of collusion between the board of supervisors of Leflore county and the First National Bank to defraud the state, county and levee board of taxes, or that the board was without jurisdiction to pay the order, or that the order is void for any other reason, then the court should so decree and should by its decree forbid the use of this order by the guilty parties in any proceeding whereby it is sought to require of them their pro rata of the taxes necessary to maintain the government.

We further submit that even should there have existed in the mind of the chancellor who tried this cause in the court below, as to the validity of the order complained of, he should then have entertained the cause for the purpose of determining definitely the question of the validity of the order.

Whitfield & McNeil, attorneys for appellee.

The arguments counsel make in attempted support of jurisdiction, based on their apprehensions, etc., etc., disclose plainly their consciousness of the want of jurisdiction. Counsel says that the relief prayed for by this bill is merely auxiliary to or in addition to the suit at law. He refers to those cases like actions of ejectment in which a defective instrument is corrected pending the ejectment proceedings. We do not perceive any analogy between cases of that kind and this, but we shall know later that this is no auxiliary proceeding, nor do we find any authority in the Code sections referred to, or in the chapter on the revenue agent conferring upon the revenue agent any specific authority to file any such bill as this. We have not been pointed to any statute authorizing this sort of bill on the part of the revenue agent. The right of the revenue agent to procure an appeal from an order of the board of supervisors is, of course, clear under State Revenue Agent v. Clark, 80 Miss. 134. That is obvious, the revenue agent remaining in the lower court.

Counsel simply says in broad and sweeping language the revenue agent must, of necessity, have the power to maintain this bill as necessary to the prosecution of the main litigation, but if, as he contends, this order is null and void, of course, it at once appears that there is no necessity for such a bill as this, the remedy at law being ample.

Adams v. City of Clarksdale, 95 Miss. 99, treats the proposition that, if this order be, as counsel earnestly insists it is, an absolute nullity, this bill cannot be maintained. In that case, there had been an order made on the 3rd of March, 1908 by the mayor and board of aldermen, and on the 5th day of May, 1908, that board passed another ordinance annulling the first order of March 3, 1908. In the bill which was filed, it was asked that the second order be cancelled as a nullity, the precise prayer we have in this bill.

At page 99 the court said: "Since the action of the board was a nullity, it would be useless to require the board to expunge from its record that which has no legal force or effect; for this reason alone the demurrer filed by the city should be sustained, and the petition dismissed as to it."

This announcement is squarely in point here, and decisive of the proposition as to the demurrer and the action of the court in sustaining it and on counsel's own theory that the order is null and void on its face.

Argued orally by O. G. Johnston, for appellant and A. H. Whitfield, for appellee.

OPINION

REED, J.

On December 7, 1909, the board of supervisors of Leflore county assessed the First National Bank of Greenwood for certain back taxes. The state revenue agent filed a bill to enjoin the bank from using this order upon the trial in the circuit court of Leflore county of an appeal from an order of the board of supervisors, made January 4, 1910, rejecting the assessment of back taxes against the bank, made by the tax collector of the county.

The prayer of the bill also asked that the order of the board, made December 7, 1909, be decreed to be void, because it was fraudulently obtained, and because it was rendered without authority of law, and at a time when no valid assessment was pending before the board.

It is alleged in the bill that the revenue agent wrote to the bank, stating that it appeared that the bank had not been assessed for sufficient amount in certain years, and suggested a conference with the bank relative to the proper amounts for these years, and that the bank agreed to take the matter up with him at some convenient time; that before this conference could be had, and without notifying the revenue agent, the bank appeared before the board of supervisors and obtained the order purporting to assess it with back taxes.

The bill charges that the order was obtained in fraudulent violation of agreement with the revenue agent, and on false and fraudulent representations of the bank as to the value of its stock that at the time of the order the assessment rolls were in the hands of the sheriff and tax collector, and that he was the only officer authorized by law to make the assessment against the bank for back...