Herrick v. Pascagoula Street Railway & Power Co.

• Decision Date: 27 February 1911
• Docket Number: 14679
• Citation: 54 So. 660,97 Miss. 637
• Parties: LOUIS D. HERRICK, TAX COLLECTOR v. PASCAGOULA STREET RAILWAY & POWER COMPANY
• Court: Mississippi Supreme Court

54 So. 660

97 Miss. 637

LOUIS D. HERRICK, TAX COLLECTOR v. PASCAGOULA STREET RAILWAY & POWER COMPANY

No. 14679

Supreme Court of Mississippi

February 27, 1911

FROM the chancery court of Jackson county, HON. THADDEUS A. WOOD Chancellor.

The railway, etc., company, appellee, was complainant in the court below; Herrick, tax collector, appellant, was defendant there. From a decree overruling a motion to dissolve a preliminary injunction the defendant appealed to the supreme court. The facts as stated by ANDERSON, J., are these:--

"The bill of complaint in this cause was filed by appellee, a property owner and taxpayer of the city of Pascagoula against the appellant, Herrick, as tax collector of said city, to enjoin him from the collection of certain municipal taxes alleged to be illegal. An injunction was issued in accordance with the prayer of the bill. Appellant made a motion to dissolve the injunction, which was heard by the court on bill, answer, and affidavits, and a decree made overruling the motion. From this decree the appellant was granted an appeal to this court to settle the principles of the cause. It is alleged in the bill that the board of mayor and aldermen of Pascagoula, after the 31st day of October increased the assessment of the property of the appellees above that as copied from the county roll, and therefore such increase was without authority of law, and that such board levied eight mills tax on the property within its limits for general revenue purposes, when under the law it was only authorized to levy six mills, and therefore such levy was void as to such excess, and that appellee had tendered to the city the full amount of taxes levied by it, based on the assessment as copied from the county roll, less two mills such alleged illegal excess.

"On the motion to dissolve, the minutes of the mayor and board of aldermen were introduced as evidence and show as follows That the board met on October 27th, and 'worked on equalization of assessment rolls,' and instructed the clerk 'to give notice to taxpayers that they would hear complaints from October 30th to November 5th as to their assessments.' There was an adjournment to October 28th, when the board reconvened and 'worked on assessment rolls.' There was a recess to October 29th, when the board reconvened, and 'worked on equalization of assessment rolls,' and adjourned to November 1st, and reconvened, and heard 'complaints as to assessments,' and adjourned to November 2d, the time for a regular meeting, when 'complaints on valuation of property were heard.' There was a recess to November 3d, and another to November 4th, and another to November 5th, and another to November 8th, when a meeting was held at which 'Mrs. Mary Blanchard protested against the valuation of her property.' There was a recess to November 9th, when on motion the real and assessment rolls 'as revised by the board' were approved. At a meeting on November 10th this order was entered levying taxes:

"'On motion of J. H. Cook, duly seconded, a tax levy of fifteen mills was ordered and prorated as follows: School purposes, three mills; redemption of bonds, four mills; general funds, eight mills.'

"Affidavits were introduced on behalf of the city to the effect that no property was actually raised or lowered after the 31st of October; and affidavits on behalf of the appellee that after the 1st of November the board considered protests of persons whose assessments had been raised."

Affirmed and remanded. Suggestion of error overruled.

H. B. Everett, for appellant.

The court is now asked to condemn the entire work of the board in changing values because the finished product was allowed to pass the dead line without the capstone of a final order of approval. A formal order was not necessary to the validity of changes made by the board, and certainly not as a part of the exercise of the official acts of change of values required to be done only within the time limit. It is clearly shown, that, in this case, the assessment values were all adjusted in October, as is made manifest by the minutes of the board directing that notice be given, that the rolls were equalized and on file for inspection. If it were necessary that the minutes show an approval of the equalized rolls this was such an approval. It has been held that the order of the board of supervisors directing the clerk to make and transmit to the auditor copies of the assessment rolls of the county was a sufficient expression from which to infer an approval.

But it is contended that the minutes of the board indicated that they had not finished their work and closed the doors because they invited the public to an audience for hearing complaints, but it is manifest that the complaints to be considered were with reference to the equalized and approved roll that had become a final judgment so far as equalizing values was concerned where any changes were made. And this is true notwithstanding the fact that a final order of approval was yet lacking and was made and entered later.

In Morgan v. Blewett, 72 Miss. 903, it was held that the fact that the board of supervisors were in session longer than the three days allowed by law, and did not approve their minutes and the completed and equalized roll until the September meeting, did not invalidate the roll or the changes of values made at the proper time. See, also, Wolfe v. Murphy, 60 Miss. 1; Mills v. Scott, 62 Miss. 526.

It was held by the chancellor in this case that the order of approval of the roll was a judicial act as part of the altering of the roll by changes of values and that without such order the work was incomplete and void as to all changes made. The alterations were made by the board in a manner expressly approved in Investment Co. v. Suddoth, 70 Miss. 417, saying at page 422: "The mere clerical act of noting on the roll the increase of the valuation may be done by the assessor or by the clerk of the board if under its direction and in pursuance of its judgment." In that case the changes had actually been ordered and made at a time and place not allowed by law but were rendered valid by an order of the board afterwards made at the proper time and place.

But it is said the minutes of the board of aldermen and the notice given and hearing of objections indicated that the acts done in October were not conclusive because such acts manifested an intention on the part of the board to leave same open for objections with a purpose of further corrections or alterations in response to objections before final approval. These orders, together with the affidavits of two members of the board and of the tax collector; showed that the roll had been completely equalized and the entries actually made of all changes by or under the direction of the board and that the completed roll so legally and properly made up placed on file for public inspection. After this was done and the time for changes generally authorized to be made had elapsed the board was powerless to undo what it had done. If it be considered that a general order of approval of this roll was necessary to its validity as a final warrant for the collection of taxes, unless it is also held that such order must be made before the expiration of the time for changing values there can be no complaint that the act of final approval was purposely postponed during the hearing of objections. The contention that the circumstances of postponing this final order and notice that objections would be heard beforehand indicated that the board was not going to stop at the time limit is to assume that the board intended to do a wrong and do things that the law did not allow instead of the more charitable and lawful assumption that they were not going to do anything unlawful. But having done a final act in a lawful time and manner in the making of proper changes in the roll, the mental reservation on the part of the board of a determination to undo the lawful acts in a time and manner not awful simply because of a want of a proper regard for law could not relate back and invalidate valid acts. If a valuation had been raised by the board as a deliberate official act and entered on the roll it was completely done and who can say it was not legally and timely done, especially...