Blodgett v. Pearl River County

• Decision Date: 17 December 1923
• Docket Number: 23728
• Citation: 98 So. 227,134 Miss. 816
• Court: Mississippi Supreme Court
• Parties: BLODGETT v. PEARL RIVER COUNTY

98 So. 227

134 Miss. 816

BLODGETT v. PEARL RIVER COUNTY

No. 23728

Supreme Court of Mississippi

December 17, 1923

Division A

APPEAL from circuit court of Pearl River county, HON. J. Q LANGSTON, Judge.

Action by John W. Blodgett against Pearl River County. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

D. E and C. W. Sullivan, for appellant.

The only question presented for consideration by this record is whether the statute of limitations of three years is applicable. This statute is found in section 3099, Code 1906 and section 2463, Hemingway's Code. The six-year statute of limitations is set out in section 3097, Code 1906, section 2461, Hemingway's Code.

The appellee in the court below relied on Musgrove v. City of Jackson, 59 Miss. 390. The suit was brought in the Musgrove case to recover for privilege license fees paid the city of Jackson on the business of banker and real estate agent. The bar of the three-year statute of limitations was pleaded but the court held that the limitation did not apply but the six-year statute did apply. The limitation as to unwritten implied contracts was not in the statute then. The court said, however, that if there was any liability on the city it grew out of an implied contract, and that the six-year limitation applied, that the liability, if it existed at all, arose from an implied liability because the city had coerced the payment of a tax which it had no power to impose. The Musgrove case does not apply to the case at bar. The three-year statute as it now is, makes the statute of limitations apply to "any unwritten contract, express or implied." This language means any unwritten express contract or any unwritten implied contract. Before the three-year statute could be applied to an implied contract it would have to appear that the implied contract arose from verbal arrangement or liability, and not from some written obligation or liability.

An implied contract may arise from a writing, and in such case the six-year statute of limitations applies. This was decided in Washington v. Soria, 73 Miss. 665.

The reclamation statute was adopted for the first time in chapter 76, Laws of 1900. This act has been brought forward in the different codes and is now found in section 4346, Code 1906, Hemingway's Code, section 6980. This statute does away with the implied contract for refunding taxes unlawfully collected. There cannot be an implied liability to refund on the part of the county when a direct and positive statute requires that the money shall be refunded and points out the method by which it is to be done. If we are correct in this conclusion then it follows that the three-year statute has no application to the case at bar. The six-year statute applies and it has not had time to bar the suit.

If there was any contract in the matter at all it was a written contract. The assessment of the property, the levy of the taxes, and the receipt given for the money were all in writing. All these matters are necessary in the proof of the plaintiff, and without them he could not make out his case. They are the basis of his suit. They constitute the written contract requiring the taxpayer to pay all lawful taxes and requiring the county to refund all unlawful taxes under the authority of the statute. See Levee District v. Railroad, 71 Miss. 752; Cock v. Abernathy, 77 Miss. 872; Folks v. Lea, 84 Miss. 509; Honea v. Monroe County, 15 So. 789, not officially reported; Bennett Association v. Bank, 99 Miss. 610; Railroad Co. v. Oil Co., 111 Miss. 320.

F. M. West, Amicus Curiae, for appellant.

I. The six-year statute applies because appellant's claim is provable by a writing, and for the further reason that, since he is proceeding under the provisions of section 4346 of the Code of 1906, the six-year statute applies, for that section provides no time within which an application for refund shall be made.

This court held in the following cases that the six-year statute applied, since they were provable by writings: Vicksburg Water Works Co. v. Y. & M. V. R. R. Co., 102 Miss. 504; I. C. R. R. Co. v. Jackson Oil & Refining Co., 111 Miss. 320; Madison County v. Collier, 87 Miss. 204; Cock v. Abernathy, 77 Miss. 872; Washington v. Soria, 73 Miss. 665; Masonic Benefit Assn. v. First State Bank, 99 Miss. 610; Edward Thompson Co. v. Foy, 115 Miss. 848; Tenn. Brewing Co. v. Hendricks, 77 Miss. 491; LeFlore County v. Allen, 80 Miss. 298; Fowlkes v. Lea, 84 Miss. 509; Romano v. Y. & M. V. R. R. Co., 87 Miss. 721; Wade v. Barlow, 99 Miss. 33; Honea v. Board of Supervisors, 15 So. 789.

This court held in Pearl River County v. Lacey Lumber Co., 124 Miss. 85, that the assessment involved in that case (which is the same here), was void, and that the county had no right to collect the taxes thereon. The lower court held that appellant's claim here was barred by the three-year statute of limitations, for the reason that the county having collected a tax to which it had no right, the obligation to repay was implied in law.

A county cannot make an implied contract. All of its contracts must be made in writing, and spread upon the minutes of the board. Pass Christian v. Washington, 81 Miss. 470; Marion County v. Woulard, 77 Miss. 343; Yandell v. Madison County, 88 Miss. 288; Drainage District v. Bolivar County, 111 Miss. 250; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742; Smith County v. Mangum, 89 So. 913; Corinth to Gulf, etc. v. Carothers & Co., 92 So. 696.

This court held in Wilson v. Naylor, 116 Miss. 573, that the statute of limitations did not begin to run against the applicant for refund until the patent to the land had been canceled by the land commissioner, and such fact certified to the auditor of public accounts. That case is decisive of the one here. The statute there involved (section 2947, Code of 1906), is a refunding statute similar to that at bar.

When did appellant first have the right to demand payment of the board authorized to allow or disallow the claim sued upon, under section 3096 of the Code of 1906? Manifestly, not until he had first applied to the auditor of public accounts, under section 4346, and that officer had duly certified the matter to the board of supervisors of Pearl River county. See, to the same effect, the following decisions by the supreme court of Iowa, in which state there is a refunding statute similar to ours: Lauman v. County of Des Moines, 29 Ia. 310; Tallant v. Berlington, 39 Ia. 543; Isbell v. Crawford County, 40 Ia. 102; Brownlee v. Marion County, 53 Ia. 489; The Iowa I. L. Co. v. Woodbury County, 64 Ia. 212; Thomas v. Berlington, 69 Ia. 140; Skinner v. Chickasaw County, 140 Ia. 453; Bank v. Board of Supervisors, 168 Ia. 501. See, also, Stewart, et al. v. Alameda County, 142 Cal. 660; Brenner v. Los Angeles, 160 Cal. 72; Kelly v. Rhoads, 7 Wyo. 237.

II. But if we are mistaken in this contention, the appellant would have six years from the time he paid the taxes, within which to bring his suit, because no other period of limitations applies. Prior to the year 1900 the only remedy of the taxpayer who had paid money into the state and county treasuries under circumstances similar to that here presented was by a special relief act of the legislature. By chapter 76 of the Acts of 1900, however, the state adopted a different policy in such matters. All of the sections of that act have been brought forward in the Code of 1906, and these statutes have been in force unchanged for twenty-three years, and are evidently serving the purpose intended. At each session of the legislature since the passage of this act, appropriations of money have been made to pay the claims covered by the act. It was out of this appropriation that the state refunded the appellee the amounts due him in the instant case.

It is the settled law of this state and other jurisdictions that where a taxpayer is subjected to the payment of a tax which is illegal, an action will lie against the collector to recover it back unless he has paid it over to his superiors; in which event the action is against the corporation. Tuttle v. Everett, 51 Miss. 27.

In Rand v. United States, 63 Law Ed. 731, (U. S.) decided by the supreme court of the United States April 21, 1919, that court held that repayment must be made under the act of July 27, 1912 (37 Stat. at L. 240, chap. 256), which provides for the refunding to persons presenting claims of taxes erroneously or illegally collected under the War Revenue Act of June 13, 1898 (30 Stat. at L. 465, chap. 448, Comp. Stat. 1916, sec. 6144), imposing taxes on inheritances. See also the cases of Simpson v. United States, 64 Law Ed. 417 (1920); United States v. Hvoslef, 237 U.S. 1, 59 Law Ed. 813; Ann. Cases, 1916A, p. 286.

Again we ask--When does the period of limitations begin to run? In 17 R. C. L. 748, the rule is stated.

In the case at bar, since section 2346 provides no limitation of time within which to apply for the refund, we say that the six-year statute applies.

Parker & Shivers, for appellee.

The only question presented for consideration by this record is the statute of limitations, of three years. The question presents itself at the outset, what is the basis of liability of the county to refund taxes erroneously collected from appellant under the facts of this case. If we can find the basis of liability of the county for the erroneous taxes then it is easy enough to apply the statute.

This court has repeatedly held that it is the duty of the board of supervisors to plead the statute of limitations as a bar to any claims against the county if the statute has run against said claims. And in fact if they fail to plead the statute of limitations in cases where it applies, the board could...