Geo. Cameron v. Whittington & McGhee

• Decision Date: 14 July 1919
• Docket Number: 20842
• Citation: 82 So. 311,120 Miss. 595
• Parties: GEO. CAMERON ET AL. v. WHITTINGTON & MCGHEE
• Court: Mississippi Supreme Court

82 So. 311

120 Miss. 595

GEO. CAMERON ET AL. v. WHITTINGTON & MCGHEE

No. 20842

Supreme Court of Mississippi

July 14, 1919

March 1919

Division B

1 TAXATION. Sale for non-payment. Irregularities in assessment filing roll. Meeting of board. Notice to tax payers.

Code 1906, section 4303, requiring an assessor among other things when he files his roll to publish notice thereof and date of the meeting of the board of supervisors to consider the same is mandatory, and in the absence of such notice the collector cannot make a valid sale of the land for default in the payment of the taxes.

2 SAME.

The notices required by section 4303, Code 1906, form a part of a statutory substitute for personal summons and under the state and federal constitutions notice must be given the taxpayers and opportunity to be heard before the assessment can become final and binding.

HON. R W. CUTRER, Chancellor.

APPEAL from the chancery court of Franklin county, HON. R. W. CUTRER, Chancellor.

Bill by Wittington & McGhee against Geo. Cameron and others. From a judgment for plaintiff, defendants appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Theo. McKnight, for appellant.

Invalidity of Assessment Roll of 1909. The land assessment roll of Franklin County for 1909, under which the sale in dispute was made was not returned and filed on the First Monday in July as required by sec. 4291, Code 1906; the board of supervisors did not extend the time until the First Monday in August as provided and required by section 4293, Code 1906, but ordered the assessor to file his land roll on July 15, 1909. The assessor filed his said roll on July 14, 1909. No notice of the filing of said roll nor the time for the making of objections thereto was published as required by sections 4295 and 4303, Code 1906. The land roll was not approved by the board of supervisors until the 18th day of September, 1909.

The facts of record in regard to the return and approval of the land assessment roll of Franklin County for 1909, bring this case squarely within the case of McGuire v. Union Investment Co., 76 Miss. 868, and it follows that the sale thereunder of the land in dispute was void.

Section 4292, Code 1906, which provides that the failure of the assessor to return his roll on the day named for its return shall not effect the validity of the assessment if approved by the board of supervisors, was cited in the court below and held by the court to be curative of the defect above shown in the assessment roll of 1909, in dispute. That this section does not cure such defects is clearly shown by the McGuire case above, where it is held that, "this section must be construed in connection with all the other provisions on this subject." And upon reading the body of said cases as reported, it will be seen that this court held that, so construed, said section 4292 does not validate a sale like the one in said case and in the instant case. The attention of the court is called to the fact that the annotation, of the McGuire case of the Code of 1906, is erroneous in that it states said case as holding that, "so construed, section 292, Code 1906, does not invalidate a sale, etc." The learned chancellor was evidently mislead by this error in annotation.

Whittington & McGee, for appellees.

"Invalidity of assessment roll of 1909." It is contended that the tax deed was void because based on an invalid assessment for the year 1909; this assessment is declared invalid by appellants for the following reasons, viz.: (a) that at the July meeting the board did not extend the time for the completion of the roll until the first Monday of August, but only extended the time until the fifteenth day of July; (b) that the board failed to give notice of the filing of the roll or of the time at which objections were heard as required by section 4295, Code 1906; (c) that the board did not approve the assessment roll until September, 1909; (d) that the assessor did not file his roll on the first Monday of July, 1909, as required by section 2491, nor did he give formal notice of the filing of said roll as required by section 4303, Code 1906. We respectfully submit that in the event the assessor fails to file his roll by the first Monday of July, as required by section 4291, the board of supervisors under the provisions of section 4293, may extend the time until the first Monday of August. In this case the assessor failed to file his roll on the first Monday of July, and the board, under section 4293, extended the time until the fifteenth day of July; we submit that it is wholly immaterial whether the board gave the full time, to wit: until the first Monday of August, the essential and material thing being that they did not extend the time beyond the first day of August. Having extended the time for filing the roll under section 4293, the board could not approve the roll prior to the September meeting, as provided by section 4298. No notice was given by the board under section 4295, for the reason that the board was not operating under the provisions of that section at all, no new assessments having been ordered. We therefore respectfully submit that the board acted strictly in conformity with the statute in dealing with this roll; the trouble being that counsel for appellants is confusing two methods of procedure given to the board when the assessor fails to file his roll by July. Section 4295 applies, we submit, only when coupled with action by the board under section 4294, Code 1906. We submit that the failure of the assessor to file his roll by the first Monday in July does not invalidate the assessment, when further time is given by the board under section 4293, Code 1906. The proof offered by appellants showed that the board did not publish notice of the time, etc., of hearing objections to the assessment roll, nor does the law require the board to do so, unless the board be acting under the provisions of law governing the making of a new assessment entirely. It is contended not by counsel--a contention not advanced in the lower court, and about which no proof was offered by appellants--that the assessor failed to give the notice required by section 4303, Code 1906. Granting that appellants showed by proper proof that the assessor did not give the notice required by said section and we submit that this was not proven, the only evidence touching this question being shown on page 21 of the stenographer's notes, we still submit that the assessment would not be invalidated thereby, for the reason that the law fixed the time at which objections were to be heard in the event of an extension of time being granted, viz., at the September meeting; and this time is just as certain and fixed as is the time when the assessment roll is filed by the first Monday of July, viz., at the August meeting, there is no provision of law whereby the board must give notice to taxpayers that they will hear objections, etc., to the assessment rolls at either the August or September meetings before they can perform their duties prescribed for these meetings with reference to the examination and approval of the rolls.

Further there is no provision of law whereby the board is precluded from approving an assessment roll at either of these meetings because the assessor has failed or neglected to give the notice required by section 4303. The roll was filed on the fourteenth day of July and remained on file until the September meeting before any action was taken by the board with reference to its approval; thus giving all taxpayers an unusual length of time in which to file objections; it was in truth and fact on file for two weeks preceding the August meeting, and subject to the inspection of all taxpayers. We thus see that the roll was duly filed within the time fixed by law and the order of the board and was duly approved by the board at the time fixed by law; by the plain provisions of section 4296 when the roll is approved by the board all persons are precluded from questioning its validity, except as provided. In order, therefore, to sustain appellants contention, this court would have to hold that the failure of the assessor to give...