Hemphill v. Wofford

• Decision Date: 05 April 1937
• Docket Number: 32327
• Citation: Hemphill v. Wofford, 173 So. 426, 178 Miss. 687 (Miss. 1937)
• Court: Mississippi Supreme Court
• Parties: HEMPHILL v. WOFFORD et al

173 So. 426

178 Miss. 687

HEMPHILL v. WOFFORD et al

No. 32327

Supreme Court of Mississippi

April 5, 1937

Division A

Suggestion Of Error Overruled May 17, 1937.

APPEAL from the chancery court of Webster county HON. JAS. A FINLEY, Chancellor.

Bill of complaint by L. D. Hemphill against J. F. Wofford and others. From the decree, the complainant appeals. Reversed and remanded.

Reversed and remanded.

Valentine & Valentine, of Cleveland, for appellant.

Section 3252, Code of 1930, which appears applicable to sales in municipalities by virtue of section 2585, provides that where any lands have not been sold for taxes, etc., they may be sold thereafter at a time to be designated by order of the board of supervisors, notice thereof to be given as in other cases of tax sales.

In this case the time provided by law for a sale of this property had passed. The town had no authority to make a sale at another time except by statute. While the law may charge a person with knowledge that any lands upon which taxes had not been paid would be sold at the time prescribed by law, it does not charge him with knowledge that such lands will be sold on June 6th, or any other particular date. Here the order must designate what is to be done, what lands are to be sold, and the time and place. The town is not bound to order all lands sold, and did not so order. There is no presumption that the town would order a sale of all lands on which taxes had not been paid. It may order a sale of some and omit others, and it is a matter of common knowledge that this is sometimes done. The town was without authority to proceed with the sale of lands of appellant, or any other lands, without specifically designating such lands in said order as lands to be so dealt with. Since the law did not require these lands to be sold on June 6th, the town could only sell on that date after specifically designating in said order, and the notice thereon, which was not done in this instance by proper and valid description, that the lands of appellant, correctly described and designated as lands to be so sold. The authorities are numerous and uniform that a tax sale made on a wrong day is void, and this sale on June 6, 1932, was a sale on the wrong day so. far as the lands of appellant are concerned, not being specifically designated as lands to be sold on that day.

The writers in 44 C. J. 1358, have laid down the general rule that a time not provided by law is a wrong time for a tax sale, and that a municipal tax sale must be made at the time and in the manner provided by law.

O'Flinn v. McInnis, 80 Miss. 125, 31 So. 584; Brown v Sharp, 31 So. 712.

We are unable to find any statute or rule of law which requires or permits section 3252, Code of 1930, to be applied to governing authorities of a municipality, and while there may be other statutes or cases, we have pointed out those which we believe bear on the question, by way of illustration and distinction, and from which it more clearly appears thai; section 3252 confers no datefixing powers upon municipalities for tax sales, and that June 6, 1932, was not a day fixed by law and hence a wrong day for such sale, such sale therefore being void.

McKeigney & Latham, of Eupora, for appellees.

A copy of the order made by the mayor and board of aldermen of the town of Eupora for sale of land delinquent for taxes for the year 1931, and not sold at the regular time prescribed by law, appears in the transcript as Exhibit "D" to complainant's bill. We respectfully submit that this order meets the requirements of the law. The sufficiency of the order is settled by the case of Bass v. Batson, 157 So. 530.

Advertisement of land for sale for taxes is not essential to a valid sale.

Code of 1930, secs. 3249, 3252; Laws 1931, chapter 25, section 2.

These sections are applicable to municipal tax sales.

Sections 2584, 2585, 2587, 2588, 2589 and 2590, Code of 1930.

When property delinquent for taxes, from any cause, is not sold by the tax collector at the reeler time, the law authorizes the proper authority to fix a day for sale; and when this is done the day so fixed becomes the legal day for sale. And all curative statutes applicable to sales made at the regular time are applicable to sales made on the day fixed by the proper authority. The argument of appellant that his land was sold "on a wrong day" does not square with the law,

The court requests counsel "to point out what other statute or rule of law requires or permits Section 3252 of the Code of 1930 to be applied to the governing authorities of a municipality, and also any other statute or decision of this court bearing thereon." The question has never been decided by this court. No statute, in express words, that we have found, applies section 3252 to municipal authorities, but we think that the intent of the general legislative scheme for the levying and collection of municipal taxes applies it.

The levying and collection of municipal taxes for the purposes of municipal government are quite similar to the levying and collection of taxes for the purposes of state and county government.

The proper functioning of municipal government is as essential within the municipality as is the proper functioning of state and county government within the state and county.

We do not concede that municipal boards have no powers except such as are expressly granted by legislative act. Municipal corporations have such powers as are expressly conferred by the Legislature and such as are conferred by necessary implication.

20 Am. & Eng. Ency. L. (2 Ed.), pages 1139, 1140; Nixon v. City of Biloxi, 76 Miss. 810, 25 So. 664; Green v. Hutson, 104 So. 171.

The Legislature has delegated to municipal authorities the power to levy and collect taxes. Taxes levied are worthless unless collected. And it is just as essential that the municipal authorities shall have full power to collect taxes as it is that the state and county authorities shall have full power to collect taxes.

Section 2585, Code of 1930.

But the question recurs, Did the mayor and board of aldermen of the town of Eupora have the power to make the order for the sale of the property on the first Monday of June, 1932? We think they had the power to make the order, and we invoke section 3252 of the Code of 1930, and all of the provisions of the code requiring that municipal taxes shall be collected as state and county taxes are collected.

Section 2393, Code of 1930.

We respectfully submit that the ordinance adopted by the mayor and board of aldermen of the town of Eupora designating Monday, the 6th day of June, 1932, as the day for the sale of property for taxes which, "from any cause," was not sold the first Monday of April, 1932, for taxes, was an ordinance for the collection of municipal taxes, and as such was an ordinance which was "not repugnant to the laws of the state," but an ordinance entirely consistent with law--consistent with section 3252 of the Code of 1930 which expressly authorizes boards of supervisors to make such orders for...