Chassaniol v. City of Greenwood

• Decision Date: 14 November 1932
• Docket Number: 30237
• Citation: 166 Miss. 770,144 So. 548
• Court: Mississippi Supreme Court
• Parties: CHASSANIOL v. CITY OF GREENWOOD

144 So. 548

166 Miss. 770

CHASSANIOL v. CITY OF GREENWOOD

No. 30237

Supreme Court of Mississippi

November 14, 1932

Division A

Suggestion Of Error Overruled November 28, 1932.

APPEAL from circuit court of Leflore county, HON.S. F. DAVIS, Judge.

Action by H. Chassaniol against the city of Greenwood. Judgment of dismissal in county court was affirmed by the circuit court and plaintiff appeals. Affirmed.

Affirmed.

Ward Allen, of Greenwood, for appellant.

Our contention is that by the allegations in the declaration the appellant placed this suit squarely within the provisions of the statute and that he is proceeding under the statute. The statute relieves one proceeding under it from the necessity of showing payment of the tax under protest, in view of the unmistakable language of the statute.

Riley v. Ammon, 143 Miss. 861, 108 So. 296; Section 2591, Code of 1930.

We apply to the statute the familiar rule expressio unius est exclusio alterius, meaning, of course, that the mention of one thing in a statute implies the exclusion of another thing. Section 2591 includes everything that shall be done by an applicant up until the time his claim is rejected and is then silent. We are therefore forcibly reminded that the legislature did not intend to legislate on the procedure to be followed after rejection of a claim. In view of this rule we think any court would be traveling far to say that by enacting section 2591, the Legislature intended to change the rule of the Pylant case, 87 Miss. 433, and to require an applicant proceeding under the section to resort exclusively to his remedy by appeal under section 61.

A statute is not to be given a construction at variance with established rules of procedure, unless the intention of the Legislature is apparent.

25 R. C. L. 1057.

Long prior to the enactment of section 2591 and while it was still necessary to pay a tax under protest if recovery could be had, it was a recognized method of procedure in this state that a taxpayer could pay an illegal tax under protest and bring a suit for its recovery against the municipality or the tax collector thereof, if the money were still retained by him.

Leonard v. Canton, 35 Miss. 189; Vicksburg v. Butler, 56 Miss. 72; Huntley v. Bank of Winona, 69 Miss. 663, 13 So. 832.

We think it would be going very far to say that by section 2591 the Legislature ever intended that a serious constitutional question must necessarily be tried on the record presented by an appeal to the circuit court from an order of a municipal board. We think we had the right to appeal after complying with section 2591, but we think we had an equal right to bring this suit after complying with section 2591, and we contend that by bringing this suit on a formal declaration and reciting in our declaration a previous literal compliance with section 2591, we have chosen the better of the two methods of procedure which were open to us.

Pearl River County v. Lacey, 124 Miss. 85, 86 So. 755; Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227; Union Land & Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277.

A. H. Bell and W. S. Vardaman, Jr., both of Greenwood, for appellee.

Before the enactment of chapter 273 of the Laws of 1926, there was no remedy to a taxpayer who paid a tax not due, unless the tax was paid under protest.

Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 534; Union Land & Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277.

The Legislature of the state of Mississippi in enacting chapter 273 of the Laws of 1926 changed the general rule and provided a method whereby a refund of taxes erroneously paid may be held. Section 2591 sets out the method which must be followed in order for a taxpayer to recover erroneously paid taxes from a municipal treasury.

The statute is silent as to what course should be pursued by an applicant whose claim is found not to be due by the governing body of the municipality. If such a claim found not to be due, there will be an order on the minutes of such municipality, and section 61 of the Code of 1930 provides that any person aggrieved by a decision of the municipal authorities may appeal to the circuit court or the county court, as the case may be. This the appellant did not do, but elected to file his direct action against the city of Greenwood in the county court of Leflore county, Mississippi. In filing this direct action, the appellant takes his case out of the provisions of the statute.

It is an elementary rule of law that no tax can be recovered unless paid under protest, except where the statute has changed this rule.

Schmittler v. Sunflower County, 125 So. 534, 156 Miss. 227.

Argued orally by W. S. Vardaman, Jr., and A. H. Bell, for appellee, and Ward Allen, for appellant.

OPINION

Smith, C. J.

The appellant sued the appellee, in a county court, for the amount of privilege taxes alleged to have been paid by him to the appellee for each of several past years.

One of the allegations of the declaration is that: "Plaintiff says that heretofore, after payment of the aforesaid privilege taxes to defendant, and pursuant to section 2591 of the Mississippi Code of 1930, he submitted his application for refund of said taxes, to the governing body of defendant city of Greenwood, but that his said claim was found by said governing body to be not due, and that the clerk of said defendant municipality has failed and refused to audit said claim, and to certify the amount due plaintiff to the mayor of said defendant municipality, and that said mayor has failed and refused to cause a warrant to be issued on the treasury or depository of said defe...