O'Flinn v. McInnis

• Decision Date: 24 March 1902
• Citation: O'Flinn v. McInnis, 31 So. 584, 80 Miss. 125 (Miss. 1902)
• Parties: MARY A. O'FLINN v. JULIA D. MCINNIS
• Court: Mississippi Supreme Court

31 So. 584

80 Miss. 125

MARY A. O'FLINN v. JULIA D. MCINNIS

Supreme Court of Mississippi

March 24, 1902

[Copyrighted Material Omitted]

FROM the chancery court of Lauderdale county. HON. STONE DEAVORS Chancellor.

The appellant, Mrs. O'Flinn, filed her bill of complaint against the appellee, Mrs. McInnis, for the confirmation of the title claimed by her under a municipal tax sale of the city of Meridian, made on February 27, 1899. The defendant answered, alleging that the tax sale was void because not made on the day on which sales for state and county taxes were required to be made (the first Monday in March), under the act of 1888, amending the city charter (laws, p. 286, and code 1880, § 521, and code 1892, §§ 3022, 3813); and that the sale of February 27, 1899, was under an amendment of the charter dated August 29, 1893, which was "not consistent with" § 3022, code 1892, and therefore not authorized by § 3039 of that code. The answer was made a cross-bill for the cancellation of complainant's tax deed; and to this cross-bill the complainant demurred on grounds challenging the merit of the objection made to the validity of the sale, and also because the cross-complainant did not tender or offer to tender with her cross-bill the amount of taxes paid, etc. This appeal is from a decree overruling the demurrer to the cross-bill. By the direction of the court the brief of counsel for the appellee, which presents at length the case under consideration, is printed in full.

Decree affirmed.

Ethridge & McBeath, for appellant.

Section 3830, code 1892, gives a lien in favor of the purchaser for the amount of the purchase price at any tax sale, either state, county, or municipal, and twenty-five per cent damages on said amount. This being the law, the demurrer should have been sustained, because the cross-complainant did not tender the amount of the taxes paid by complainant at the purchase of the property, and the taxes paid by complainant since the purchase up to the time of filing the bill. The cross-complainant asks for affirmative relief, and it is not necessary for us to cite authorities that "he who seeks equity must do equity." Ragsdale v. Alabama, etc R. R. Co., 67 Miss. 106; Black on Tax Titles, sec. 242; Peckam v. Millikan, 99 Ind. 352; 25 Am. & Eng. Enc. Law (1st ed.), 735.

The city complied with all the provisions of § 3039, code 1892. The cross-bill does not deny the proposed amendment was published three weeks, then submitted to the governor, who in turn submitted it to the attorney-general for his opinion. The latter then certified that in his opinion the proposed amendment was consistent with the constitution and laws of the United States and of this state, including chapter 93, code 1892.

Who is to be judge as to whether or not the amendment is consistent with the laws of the United States and of this state and ch. 93, code 1892? The attorney-general or the learned chancellor? Our contention is, that the legislature vested this authority in the attorney-general, and that when he has certified that in his opinion the amendment is consistent, it is not for the courts to say that he was mistaken. That the legislature has a right to make an act depend for its operation on a future contingency is well settled in this state, and by adjudications elsewhere. Schulher v. Bordeaux, 64 Miss. 59.

Neville & Wilbourn, for appellee.

The court did not err in overruling the demurrer of appellant to the cross-bill of appellee. The sale of the lands of appellee, described in appellant's bill, was made on February 27, 1899, for the taxes due the city of Meridian for the year 1898. We take it that unless there was a valid law in force at the time said sale was had, authorizing the sale of lands for the nonpayment of taxes due the city of Meridian on the fourth Monday of February of each year, then it will be conceded that said sale of appellee's lands was null and void, and that appellant acquired no title to the same by virtue of the tax deed filed as an exhibit to her bill. See McGehee v. Martin, 53 Miss. 519; Meed v. Day, 54 Miss. 58; Harkreader v. Clayton, 56 Miss. 383; Nelson v. Abernathy, 74 Miss. 164.

The first thing, therefore, to be determined is whether or not there was existent on February 27, 1899, a valid law authorizing the sale of appellee's land on said day for taxes due the city of Meridian. We may observe at the outset that no provision of the code, no act of the legislature incorporating the city of Meridian or amendatory of its charter, fixes the date for sales of lands for the nonpayment of taxes due the said municipality on the fourth Monday of February. The charter of the city of Meridian, and all amendments thereto prior to the code of 1892, are acts of the legislature, and as such the court will take judicial knowledge of them, and also of the fact that none of said acts of the legislature fix the fourth Monday of February as the day for the sale of lands for taxes due the city of Meridian. 17 Am. & Eng. Enc. Law (2d ed.), 936, et seq. Laws 1888, page 286, is the latest act of the legislature with reference to the date of delinquent tax sales by the city of Meridian. Said act provided that said sales should be made at the courthouse of Lauderdale county on the day when lands delinquent for state or county taxes were required by the code of 1880 to be sold, to-wit, the first Monday of March of each year. See secs. 5, 6, and 7 of act of 1888, page 286.

Section 3813 of the code of 1892 re-enacted § 521 of the code of 1880 as to date of tax sales of lands delinquent for state and county taxes. The act of 1888, amendatory of the charter of the city of Meridian, was of force on the adoption of the code of 1892. The city of Meridian, under § 3035 of the code of 1892, elected not to be governed by the provisions of chapter 93 of said code with reference to municipalities. The law of 1888 still remained in force, and tax sales of city of Meridian were required as before to be had on first Monday of March of each year.

As set out in cross-bill of appellee, and as appellant's demurrer admits, on August 29, 1893, under § 3039 of the code of 1892, and in the way therein marked out, the charter of the city of Meridian was amended so as to require the sale of lands delinquent for taxes due the city of Meridian to be had on the fourth Monday of February of each year. The sale of appellee's lands on the fourth Monday of February, 1899, was made pursuant to the aforesaid amendment. If said amendment be valid and binding, and appellee contends it is not, then appellant's demurrer should have been sustained. Otherwise the decree of the court below overruling appellant's demurrer to appellee's cross-bill was correct.

The decision of the court upon the question of the validity of said amendment being determinative of the case at bar under the view of appellee, we invite the attention of the court to the following considerations, which we respectfully submit will make the illegality of the said amendment apparent. Section 3039 of the code of 1892 provides for the amendment of the charters of only such municipalities as might elect not to be governed by chapter 93 of the code of 1892. The manner of amendment of the charters of such municipalities in said section indicated is not the only way in which they are to be amended. They may still apply directly to the legislature. Section 3039 of the code, as it stood in 1893, authorized amendments to the charters of such municipalities in the way therein indicated, when the proposed amendments were "consistent with the constitution and laws of the United States and of this state, including this chapter (93)."

Section 3022 of chapter 93 of the code of 1892 fixed the date of tax sales in all code municipalities on the first Monday of March. Nor did it leave the date of municipal tax sales subject to the selection of municipal authorities, as it did in reference to the place for holding such sales. When the amendment to the charter of Meridian of August, 1893, was sought to be made, the charter, and § 3022 of the code of 1892, ch. 93, were perfectly harmonious and consistent as to the matter of municipal tax sales. The amendment of August, A. D. 1893, fixed another day than the first Monday of March as the day for the sales of lands for the nonpayment of taxes due the city, and required the same to be had on the fourth Monday of February, and thereby destroyed the harmony and consistency of the provisions of the charter of Meridian, and chapter 93 of the code as to the time of tax sales, and introduced into the charter a provision wholly inconsistent with § 3022 of chapter 93 of the code of 1892. This, appellee contends, was unauthorized by § 3039 of the code. Under said section the only way in which the charter of the city of Meridian could have been so lawfully amended was by an act of the legislature.

The history of the adoption of chapter 93 of the code of 1892, with reference to municipalities, will throw some light upon the proper construction of § 3039 and the character of amendments allowable thereunder. The chapter on municipalities as first reported by the code commissioners did not contain said § 3039, and was made to apply to all municipalities from and after May, 1896. See code as reported by commissioners on file in the office of the secretary of state.

The friends of a uniform system of municipal government favored the adoption of chapter 93 of the code of 1892 as originally reported by the code commissioners. The existing chartered municipalities fought to retain their charter rights. Chapter 93 of the code is the compromise effected as a result of the contest between the advocates of uniform municipal government and the friends of the chartered...