City of Biloxi v. Biloxi Real Estate Co.

• Decision Date: 22 March 1909
• Docket Number: 13,867
• Citation: 94 Miss. 653,48 So. 729
• Court: Mississippi Supreme Court
• Parties: CITY OF BILOXI v. BILOXI REAL ESTATE COMPANY ET AL

48 So. 729

94 Miss. 653

CITY OF BILOXI v. BILOXI REAL ESTATE COMPANY ET AL

No. 13,867

Supreme Court of Mississippi

March 22, 1909

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

The Biloxi Real Estate Company and others, appellees, were complainants in the court below; the city of Biloxi appellant, was defendant there. From a decree in complainants' favor, overruling a motion to dissolve a preliminary injunction, the defendant appealed to the supreme court.

By their suit the complainants, appellees, sought and obtained an injunction restraining the city of Biloxi from collecting a tax levied by the municipal authorities upon property within the city limits. The bill charged that the tax was illegal because the mayor and board of aldermen met on October 31, 1908, for the purpose of raising and lowering the values of the taxable property in the city, and continued their sessions during the month of November, and made changes during said month largely increasing the assessed value of the property of each of the complainants.

Code 1906, § 3422, is as follows: "The mayor and board of aldermen of a city, town, or village may, at a regular or special meeting, to be held in September or October in each year, increase or diminish the valuation of property as assessed for taxation. Ten days' notice of the meeting at which such changes are to be made shall be given by posting written notices thereof in five or more public places in the municipality, and in cities the notice shall also be published in a newspaper, if there be one published therein. Any person aggrieved by the action of the mayor and board of aldermen may appeal therefrom to the circuit, court as in other cases of appeal, and the same shall be tried de novo in the circuit court."

Affirmed.

Doty &amp Elmer, for appellant.

There are no allegations in the bill of complaint sufficiently made to warrant a court of equity in granting relief, much less permit an injunction to stand. Allegations of irreparable injury are not sufficient, but the facts and conditions which exist and by reason of which irreparable injury will occur must be definitely given. McFarland v. Town of Jennings, 106 La. 541.

The bill of complaint does not allege that any attempt was made by any of the complainants therein to have the assessment roll changed; either increased or decreased; nor does it state whether any of the property was improved by buildings or drainage or otherwise, since the last assessment roll was made.

The next question raised is, had the mayor and board of aldermen the right, after having given the notices, as required by law, to increase or diminish the assessment? Having begun in the month of October, and the taxpayers having had due and legal notice, the board had a right to continue until the entire roll was gone over. This was merely an equalization of taxes, in order to fix the levy. 1 Abbott's Municipal Corporations, sec. 324.

The appellees, complainants below, did not make out even a prima facie case. Cooley on Taxation, 750. For a merely irregular assessment, the statutory remedy is the exclusive remedy; it is supposed to be adequate for all the requirements of justice; and it is the party's own folly if he fails to avail himself of it.

In this bill there is no fraud charged directly, nor are there any allegations that would imply fraud; hence a resort to a court of equity cannot be had.

Equity will not relieve against an assessment of property for the purpose of taxation, on the grounds that such an assessment is too high, when the excess, if any exists, results from an honest error of judgment on the part of the one making it. In such cases, the party aggrieved must resort to the remedy provided by statute. If he omits to do so at the proper time and place, the remedy is lost. Butternuth v. St. Louis Bridge Co., 5 Ill. 545, 5 Am. St. Rep. 545.

As there are no allegations in the of complaint that the property of the complainants, appellees here, was assessed proportionately at a higher rate than other property in the same locality, and none that the complainants, appellees here, are paying a greater rate of taxation than any other citizen of Biloxi or taxpayer who owns property in the same locality on the property described in the bill of complaint, no relief can be granted in a court of equity.

Nowhere in the bill is there any offer to do equity by those who have sought, through a court of chancery, to clog the wheels of a municipality and embarrass its officers.

Dodds & Leathers, for appellees.

The action of the board in arbitrarily increasing the assessment of appellee's property according to geographical location and districts as alleged in the bill of complaint is utterly null and void, and consequently appellees are not liable for taxes on said increased assessment. Hawkins v. Mangum, 78 Miss. 97, 24 So. 872. Code 1906, § 3422, provides how and when boards of mayor and aldermen shall equalize the assessment of property. The appellant board did not meet to equalize the assessment of complainant's property until the night of October 31, 1908, although said section provides that it shall be done in September or October. Statutes providing for assessment and taxation of property are to be strictly construed, and appellant did not make even a substantial compliance with the section. Adams v. Greenville, 77 Miss 881. Appellant increased the assessment of all of appellee's property in the present case, and increased the assessment in solido, without authority to do so. Tax Collector v. Ingersol, 62 Miss. 73.

Appellant seems to depend largely on the case of Ames v. Noxubee County (Miss), 3 So. 37 In that case there was no question raised as to the validity of the action of the board in increasing the assessment, it was not alleged that its action was void, the only purpose of the bill having been to seek a reduction of the assessment. In the above case the court uses the following significant language in the opinion: "Resort to chancery should not be allowed, in the absence of special circumstances making such resort proper."

MAYES, J. FLETCHER, J., dissents.

OPINION

MAYES, J.

If the injunction in this case is maintainable, it must be on the sole ground that the mayor and board of aldermen had no...