Butts v. Ricks

• Decision Date: 04 May 1903
• Court: Mississippi Supreme Court
• Parties: EDWARD S. BUTTS v. FRANCES J. RICKS

34 So. 354

82 Miss. 533

EDWARD S. BUTTS v. FRANCES J. RICKS

Supreme Court of Mississippi

May 4, 1903

FROM the chancery court of Yazoo county. HON. HENRY C. CONN Chancellor.

Butts appellant, was complainant, and Mrs. Ricks, appellee, was defendant, in the court below.

Complainant by his bill of complaint, alleged that he was owner of certain lands described in the bill, but that defendant was in possession thereof, and had been for over three years claiming under a tax deed dated March 2, 1891; that said tax deed had been executed by the tax collector in pursuance of an attempted sale of the land for taxes alleged to be due thereon for the year 1890; but that said sale was void because there was no assessment for 1890, but the tax collector in making the sale acted under the assessment of 1889, which was made as directed by the act of 1888, Laws 1888, pp. 24-27, which was unconstitutional, and had been so adjudged by the supreme court. See Hawkins v Mangum, 78 Miss. 97. Appellant filed with his bill an abstract of title, which showed that he was the owner of the lands, unless appellee had acquired title by her tax deed and occupancy. Complainant prayed for the cancellation of the tax deed. Defendant relied on the following defenses: That the sale of March, 1891, under which she claims, was not made under the assessment of 1889, but the assessment of 1888, as provided by a local act of the legislature entitled "An act to authorize the assessment of land in Yazoo county for the year 1888" (Laws 1888, p. 463, c. 378); that she had actually occupied the land for three years since the expiration of the period of redemption; and that the three-years statute of limitations (section 2735, Code 1892) was a bar to the suit. To the first of these defenses complainant insisted that the board of supervisors and the tax collector had abandoned the assessment of 1888, and that the sale was actually made under the assessment of 1889. The Yazoo river runs through this tract of land, and only a small portion of it is on one side of the river, the remaining portion being on the opposite side of the stream, the same being a navigable stream lying wholly in this state. Defendant was in actual possession of the smaller portion. It was contended by complainant that the two parts of the land were not contiguous, even if section 2735, Code 1892, did apply. The court below decreed in favor of defendant, and complainant appealed to the supreme court.

Affirmed.

Edwin R. Holmes, for appellant.

In regard to the argument that there had been no abandonment of the assessment of 1888 by the board of supervisors or the tax collector because of the act (Laws 1888, p, 24), commonly called the Madison act, was unconstitutional and void, and that therefore all the acts of the board and the tax collector under the assessment of 1889 were insufficient to work an abandonment of the 1888 assessment, and that the 1888 assessment was still in force in 1890, it may be confidently affirmed that there was a de facto abandonment. Both the board and the tax collector acted in good faith under the Madison act, and that act, although unconstitutional, was sufficient authority to them to abandon the 1888 assessment, since it had not then been pronounced unconstitutional by the courts. In other words, since the tax collector was a mere ministerial officer, it was his duty to act under the assessment of 1889, made under the Madison act, and to abandon the assessment of 1888, since the Madison act was valid on its face and had never been judicially declared unconstitutional. In the case of Railroad v. West, 78 Miss. 789, 811, this court said: "Besides, the sheriff is a mere ministerial officer, both as sheriff and as tax collector. It could not be expected of him to construe a statute expressly granting an exemption and determining judicially, as the court would, whether an exemption was constitutional or not, it never having been contemplated that a mere ministerial tax collector should undertake the tremendous responsibility involved in such exercise of judicial functions. He might well plead, as a good and sufficient excuse for not selling the property of this railroad, that he found an express statute granting an exemption upon conditions, which conditions had been complied with by making the required affidavits. Whether the express statute violated the supreme law of the land--the state constitution--conformity to which is essential to the validity of every legislative act, was a solemn judicial question for the courts to determine in a suit which he could not, and which the revenue agent could, institute for that purpose." Citing Cooley on Tax (2d ed.), 710; Wiley v. Sinkley, 179 U.S. 66; Mayson v. Mo., 179 U.S. 333; Mechem on Public Officers, sec. 523. Also in Revenue Agent v. Stonewall Mills, 80 Miss., on page 113, this court said: "As held in Railroad Co. v. West, supra, it was not the duty of the tax collector, acting in a mere ministerial capacity, to pass upon the validity of the exemption claimed, either under the statute or the constitution. This is a judicial question."

The Madison act, valid on its face, was sufficient to authorize the tax collector to abandon the assessment of 1888, and whether authorized or not both the tax collector and the board of supervisors actually did abandon the 1888 assessment and approved and adopted the...