Henderson Molpus Co. v. Gammill

• Court: Mississippi Supreme Court
• Writing for the Court: COOK, J.
• Citation: Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716 (Miss. 1928)
• Decision Date: 27 February 1928
• Docket Number: 26866
• Parties: HENDERSON MOLPUS CO. v. GAMMILL. [*]

115 So. 716

149 Miss. 576

HENDERSON MOLPUS CO. v. GAMMILL. ^[*]

No. 26866

Supreme Court of Mississippi

February 27, 1928

(In Banc.)

1. TAXATION. To render acts of board of supervisors in approving assessment rolls valid, jurisdictional facts must appear of record.

In order to render acts of board of supervisors in equalizing assessments and approving assessment rolls valid, all jurisdictional facts must appear of record, and it is not permissible to show existence of such jurisdictional facts by evidence aNunde the records, since board of supervisors in equalizing assessments and approving assessment rolls acts as court of special and limited jurisdiction.

2. TAXATION. Giving notice that assessment rolls were open to objections was necessary to confer jurisdiction on supervisors to equalize and approve assessment rolls (Laws 1920, chapter 323, section 5).

Giving of notice to taxpayers that assessment rolls had been equalized and were ready and open to examination and objections as required by Laws 1920, chapter 323, section 5 was necessary to confer jurisdiction upon board of supervisors to equalize and approve assessment rolls.

3. TAXATION. Where fact that notice was given that assessment rolls were open to objections did not appear of record proceedings approving rolls were void (Laws 1920, chapter 323, section 5).

Where fact that notice had been given to taxpayers that assessment rolls had been equalized and were ready and open to examination and objections, as required by Laws 1920, chapter 323, section 5, did not affirmatively appear of record in proceedings of board of supervisors to equalize and approve rolls, proceedings were void, since, where court exercises special, limited, statutory jurisdiction, nothing is presumed in aid of its jurisdiction.

4. TAXATION. That notice was actually given that rolls were open to objections did not make valid order approving assessment rolls where such fact did not appear of record (Laws 1920 chapter 323, section 5).

That notice had actually been given to taxpayers that assessment rolls had been equalized and were ready and open to examination and objections as required by Laws 1920, chapter 323, section 5, could not make valid order of board of supervisors approving assessment rolls which was void for reason that this jurisdictional fact did not appear of record in proceedings to equalize and approve assessment.

5. TAXATION. That notice was given taxpayers that rolls were open to objections could not be shown by copies of newspaper filed in chancery clerk's office (Laws 1920, chapter 323 section 5; Hemingway's Code 1927, section 300).

Where fact that notice had been given to taxpayers that assessment rolls had been equalized and were ready and open to examination and objections as required by Laws 1920, chapter 323, section 5, did not appear of record in proceedings to equalize and approve rolls, it was not competent to show that such notice appeared in copies of newspaper filed in office of chancery clerk of county pursuant to Hemingway's Code 1927, section 300 (Code 1906, section 531), since this file of newspapers was not part of record of proceedings of board of supervisors in equalizing and approving assessments.

6. TAXATION. Where proceedings approving assessment roll were void, owner of record title could have tax collector's deed canceled (Laws of 1920, chapter 323, section 5).

Where proceedings of board of supervisors equalizing and approving assessment roll were void because fact that notice required by Laws of 1920, chapter 323, section 5, was given taxpayers did not appear of record in proceedings, owner of record title was entitled to have tax collector's deed canceled.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Leake county. HON. T. P. GUYTON, Chancellor.

Suit by the Henderson Molpus Company against Stewart Gammill, trustee, to cancel a tax collector's deed. From a decree dismissing the bill, plaintiff appeals. Reversed and remanded.

Decree reversed, and cause remanded.

Amis, Dunn & Snow, for appellant.

By the agreed statement of facts, the appellee admits that Exhibits B, C, and D, to the bill of complaint, contain all of the orders with reference to equalizing and approving the assessment roll of 1921, as shown by the minutes of the board of supervisors. The assessment in question was made pursuant to the provisions of chapter 323 of the Laws of 1920, and pursuant to section 5 of that act, the board of supervisors entered an order at its July, 1921 term, reciting that it had examined the assessment roll and had made such changes and corrections as were found necessary to fix the assessments of property at its actual value, so as to establish an equality and uniformity of taxation among the taxpayers of the county and ordered the publication of a notice to the taxpayers, to be published in the Carthaginian.

A copy of this notice, was actually published in the Carthaginian, on July the 21st, and 28th, 1921, but no proof of publication of that notice or of any other notice was ever made up or filed with the clerk of the board nor with any member of the board; nor was any such proof of publication on file at the time when the orders, Exhibits C and D to the bill of complaint, were rendered by the board of supervisors. But notwithstanding there was no such proof of publication made up or filed, the board of supervisors, at its August, 1921 term, undertook to hear objections to assessments and to equalize and finally approve the rolls, without reciting or adjudicating anywhere that the notice required by section 5 of chapter 323 had ever been published and also thereafter, at its November, 1921 meeting, confirmed the order of the state tax commissioner, approving the rolls and fully and finally approved the roll.

In equalizing and approving assessments of property and hearing objection thereto, the board of supervisors exercised a special and limited statutory jurisdiction; and since, by section 5 of chapter 323 of the Laws of 1920, the board of supervisors was required to notify the public that the rolls so equalized were ready and open for inspection and examination, it had no authority to proceed to examine, equalize or approve the rolls, without first having made the publication required. The only competent evidence of the publication of such a notice, is the record of the proceedings of the board of supervisors, as shown by its minutes; and since the minutes of the board failed to recite or adjudicate that such notice was given, and since no proof of publication of such notice was ever made up or filed, then there is no competent evidence that any such notice was ever given or published, and hence no evidence that the board ever acquired jurisdiction of the taxpayers of the county in the matter of equalizing the assessments, hearing objections thereto and approving the assessment roll, and therefore, the assessment was wholly void.

As we understand State v. Wyoming Mfg. Co., 138 Miss. 249, section 5 of chapter 323, Laws of 1920, supersedes and repeals section 6937, Hemingway's Code 1917.

The uniform holding of this court is, that where a court exercises a special, limited statutory jurisdiction, nothing is ever presumed in aid of its jurisdiction, but the record of its proceedings must show affirmatively the existence of every jurisdictional fact, necessary to authorize it to act, otherwise its proceedings and judgments are wholly void. Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Smythe v. Whitehead, 133 Miss. 184; Robertson v. Bank, 115 Miss. 840; Henry v. Board of Supervisors, 111 Miss. 434; Robb v. Telegraph Company, 104 Miss. 165; Adams v. Bank, 103 Miss. 744; Bolivar County v. Coleman, 71 Miss. 836; McElroy v. Marks, 67 Miss. 644.

Where publication is required by statute, such publication is a necessary jurisdictional fact which must be strictly pursued and which must be shown by the record of the proceedings, else the proceedings and the judgment are void. Robertson v. Bank, 115 Miss. 846. See, also, Cameron v. Whittington, 120 Miss. 595, where this court said: "The notices required by section 4303, form a part of a statutory substitute for personal summons and under the state and federal Constitution, notice must be given the taxpayer with opportunity to be heard before the assessment can become final and binding." See, also, Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Robb v. Telegraph Company, 104 Miss. 165. The fact of publication must be shown by the minutes of the board of supervisors, otherwise its proceedings and judgments are void. Adams v. Banks, 103 Miss. 744; Aden v. Board of Supervisors, 142 Miss. 696.

The board of supervisors can speak only through its minutes; its minutes are the only evidence of what it did, and that when it makes a contract its minutes are the only evidence of that contract. Amite County v. Mills, 138 Miss. 222; Smith County v. Mangum, 127 Miss. 192.

One defense to this contention, made by the appellee, is that the chancery clerk of the county, pursuant to section 288 Hemingway's Code 1917, subscribed for the Carthaginian, and that he kept a file of it in his office. Conceding this to be the fact, yet, it is not competent evidence to show that the board of supervisors had jurisdiction of the taxpayers in the matter of the equalization and approval of the assessment roll. Those newspapers were not a part of the record in any cause pending before the board of supervisors or before the chancery court, circuit court or any other court. The jurisdictional facts must appear from the record of the proceedings, in the particular matter or cause. The other defense made by the appellee, is...