Hartsfield v. Carter

• Decision Date: 18 February 1924
• Docket Number: 23896
• Citation: 99 So. 265,134 Miss. 471
• Court: Mississippi Supreme Court
• Parties: HARTSFIELD, Sheriff, v. CARTER

99 So. 265

134 Miss. 471

HARTSFIELD, Sheriff, v. CARTER

No. 23896

Supreme Court of Mississippi

February 18, 1924

Division A

Suggestion of Error Overruled March 17, 1924.

APPEAL from chancery court of Lafayette county, HON. J. G. MCGOWEN Chancellor.

Suit by R. C. Carter against J. C. Hartsfield, sheriff and tax collector of Lafayette county. From a decree for plaintiff defendant appeals. Affirmed.

Affirmed.

James Stone, Oldham, Stone & Stone, for appellant.

I. The appellee, having failed to avail himself of a remedy provided him by chapter 197 of the Laws of 1912, is now concluded, and this matter is now res adjudicata. The evidence is undisputed that the appellee appeared before the county board of drainage commissioners on the 15th day of May, 1920, and objected to the issuance of the eleven thousand dollars additional bonds, and did not appeal from the action of the said county board of drainage commissioners to the chancery court of Lafayette county. Avent v. Markette (1915), 109 Miss. 835, 69 So. 705; Sabougla Creek Drainage District No. 2 v. Provine (1922), 130 Miss. 761, 94 So. 889; Richardson et al. v. Board of Supervisors of Neshoba County (1922), 128 Miss. 869, 91 So. 565; Wheeler & Sibler v. Bogue Phalia Drainage District (1913), 106 Miss. 619, 64 So. 375; Allen v. Hopson Bayou Drainage District (1913), 106 Miss. 630, 64 So. 418. See, also, the case of White et al. v. Lake Cormorant Drainage District (1922), 130 Miss. 351, 94 So. 325; Leonard et al. v. Arnold et al. (1910), 244 Ill. 429, 91 N.E. 534. The general law is set out in 19 C. J. 745.

In conclusion, we call the attention of the court to the fact that appellee had his right of appeal from the issuance of these bonds under section 46 of the act.

II. It was not necessary to file an additional assessment roll prior to the issuance of the eleven thousand dollars additional bonds of said Wells drainage district. The appellee grounds his contention in this ease on section 46 of the act, which is the only section relating to the issuance of additional bonds. In the first place, it is expressly provided by section 25 that bonds may be issued for the total amount of the assessed benefits and damages. The total amount of benefits as provided in the original assessment roll, filed March 9, 1920, was ninety-three thousand five hundred and sixty dollars. The total amount of bonds issued, including the bonds whose validity is now contested, is thirty-eight thousand dollars. So as a matter of calculation, the total amount of bonds of this drainage district outstanding, with all principal and interest, does not exceed more than two-thirds of the assessed benefits of said district, as shown by the original assessment roll.

III. The chancellor erred in excluding the proof offered by appellant as to the making, approving, confirming and filing of the additional assessment roll of the said Wells drainage district prior to the taking of any steps for the issuance of the eleven thousand dollars additional bonds of the said Wells drainage district.

This is not a question of varying the minutes of the county drainage board by parol testimony. This is a situation where the record is silent and under the well-known rule, parol testimony is competent to show the filing of a paper which is a part of the record, and which has been lost, the record itself being silent. The appellant offered a certified copy of the additional assessment roll which he alleged had been filed. This certified copy was marked, docketed and filed on the back, and was marked filed by the clerk of the drainage board.

There is no testimony whatever in opposition to these facts; even the clerk of the board testifies that he does not remember whether or not the additional roll was filed prior to the issuance of the additional bonds, so that there can be no question as to the value to appellant of this testimony.

This was an attempt to explain the loss of an original paper, which constituted a part of the record, and to introduce a certified copy made by the clerk of the drainage board himself.

T. H. Somerville and Harry M. Bryan, for appellee.

Under appellant's first assignment of error he contends that appellee failed to avail himself of the remedy provided in chapter 197, of the Laws of 1912, and that the case is now res judicata. In support of this contention he argues that complainant, appellee, should have appealed to the chancery court when he first registered his objection to the proposed issue of bonds, May 15, 1920. We contend that at this time there was nothing of record to appeal from, no assessment roll having been filed as provided by law, and, it is too well settled to admit of argument that the county drainage board can speak only through its minutes.

Chapter 197 of the Laws of 1912, which is the source of the existence of this drainage district, sets out a complete scheme for the creation and government of such districts, and the requirements of this chapter must be complied with before a lien will attach to the lands of a taxpayer. This chapter requires the approval, confirmation, and filing of a roll showing the assessment of tax against each landowner to meet the payment of principal and interest of each and every bond issued by the county board before the said bonds are issued, and are given an issue date from which to bear interest.

We wish to distinguish the filing of a roll that shows the assessed benefits (as a whole) from such a roll as will show the assessment of tax against the landowner. In other words, in the Wells drainage district the assessment roll as originally filed before the issuance of twenty-seven thousand dollars of its bonds showed the theoretical or calculated total benefit to the landowners in dollars and cents to be something like ninety-three thousand dollars. Now, the question is, can the county board issue bonds of the district up to this total calculated benefit without the actual filing, approval and confirmation of assessment rolls that show just what each landowner shall have to pay by way of tax to retire them and pay their interest coupons? We contend that it is both the letter and spirit of the law that the taxpayer shall have an opportunity to know how much money he is going to be expected to pay in every bond issue of a drainage district, and without this opportunity a lien on his lands will not attach.

Appellant states in his second assignment of error that it was not necessary to file an additional assessment roll prior to the issuance of the eleven thousand dollars additional bonds in this case. Now, we respectfully submit that the language "shall order the same to be approved and confirmed and filed," is absolutely vital to the validity of bonds predicated upon the assessment, if any was made, and to the validity of the tax herein enjoined.

What other construction could be placed upon sections 22, 23, 24, 25, 26, and 46 than that they must be strictly complied with in order to carry out the due process clause of the state Constitution? Is a mere filing sufficient? We say that it is not. It is not filed with the clerk of the drainage board until after it has been approved, confirmed, and ordered filed.

The undisputed proof in the instant case is that the very first time the county board entered an order with reference to the new assessment roll covering the additional issue of eleven thousand dollars of bonds was in September, 1920. The board had already issued, months before, the said bonds, and had given them the issue date of May 15, 1920, and interest thereon immediately began to accrue.

As a matter of law, can appellee be compelled to prove by a resort to a process of elimination that such a roll was not in fact approved at the time of, or before the interest bearing debt was incurred? Or, does not the law require all jurisdictional matters to affirmatively appear upon the minutes of the board exercising the extraordinary powers and functions of a taxing entity? The county drainage board is a corporate entity, made an inferior court of record by statute, and is required to give notice of every step taken by it that affects the right of the landowner to be apprised of liens made by it upon his properly. Were it not so then the whole scheme would be clearly unconstitutional and void. The general purport of the legislature to provide safeguards for the landowners is reflected in Gum Ridge Drainage District v. Clark & Parker, 86 So. 859.

The precise question raised in this case has not come before the supreme court for adjudication. We can be guided only by precedents that have been set in the matter of general taxation for local improvements. There is no need for us to cite the many cases holding the taxing power to the very strictest...