Long Bell Co. v. McLendon

• Decision Date: 23 January 1922
• Docket Number: 22861
• Citation: 90 So. 356,127 Miss. 636
• Court: Mississippi Supreme Court
• Parties: LONG BELL CO. v. MCLENDON

90 So. 356

127 Miss. 636

LONG BELL CO. v. MCLENDON

No. 22861

Supreme Court of Mississippi

January 23, 1922

TAXATION. Land cannot be back assessed where it appears assessed on rolls, even though assessed as of no value.

Under section 4320, Code of 1906 (section 6954, Hemingway's Code), land cannot be back assessed by the collector as land "left unassessed by the assessor," where the land appears assessed on the assessor's roll and approved by the board of supervisors, even though assessed and approved as "vacant" and of no value.

SMITH C. J., dissenting.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Clarke county, HON. G. C. TANN Chancellor.

Suit by the Long Bell Company against A. F. McLendon. Decree for defendant, and plaintiff appeals. Reversed and rendered.

Judgment reversed.

S. H. Terral, for appellant.

Section 170 of our state Constitution under the head of "Judiciary" created the office of the board of supervisors and in the case of Haley v. State, 108 Miss. 899, this court held that the "boards of supervisors are made a part of the judicial department of the state."

Section 4291 of the Code of 1906, section 6925 of Hemingway's Code, required the assessor to complete the assessment and deliver the roll or rolls to the clerk of the board of supervisors on or before the first Monday of July in each year." Section 4297, Code of 1906 (section 6931 of Hemingway's Code), requires the board of supervisors to equalize the valuation at the August meeting. In equalizing these valuations the board of supervisors sits as a court and in order for its judgment to be binding the tax-payers must have notice required by law. Robertson v. Bank, 115 Miss. 840, 76 So. 689; Adams v. Clarksdale, 95 Miss. 88; McGuire v. Union Co., 76 Miss. 868.

Of course, every man is presumed to know the law and thereby to know that the board equalizes values at the August meeting, yet in construing section 4303 of the Code of 1906 (section 6937, Hemingway's Code), this court held in the case of Cameron v. Whittington, 120 Miss. 595, 82 So. 311, that the notice required by section 4303 forms a part of the statutory substitute for personal summons and under the state and federal Constitutions notice must be given the tax-payer an opportunity to be heard before the assessment can become final and binding" yet no notice was given here and counsel contends that none is necessary. As a matter of fact notice should have been served on the Mississippi Lumber Company in accordance with section 3941, Code of 1906.

J. L. Adams, for appellee.

The appellee contends that there was nothing omitted in the back assessment of this land that vitiates his title. It is the duty of the owner of the land to give it in to the assessor, and if he does not, the assessor is to assess it and if he does not know the owner, even then to assess the land, and if for any reaon the assessor fails to assess it, then if the collector discovers that it has escaped taxation he is required under section 4320, Code of 1906 (section 6954, Hemingway's Code), to assess it. This section says: The collector shall assess and collect taxes on land liable to taxation left unassessed by the assessor, and on land that has become liable to taxation since the last assessment, etc., "and he shall report to the board of supervisors on making each monthly settlement, under oath, additional assessments made by him, a copy of which the clerk shall transmit to the auditor, etc." Now there is nothing in evidence nor even in appellant's bill that would tend to show that the tax collector did not comply in all respects with the law in making this additional assessment of lands. Then it is presumed that he did comply with the law in all respects, but if this were not true it appears affirmatively from the evidence that he did make the assessment and report same to the board of supervisors as is required by law as provided in section 4320, Code of 1906, as is shown by the original report on file in this cause introduced by the appellant as exhibit "A" to the testimony of Mr. Foster.

The evidence further shows that the board of supervisors ordered the tax collector to make a sale of this among other lands on August 2, 1915, and that he did on that day make sale of this land to appellee as will appear from the tax collector's deed to appellee which is in evidence.

Now, what will vitiate an assessment thus made or the deed made upon sale of land under same? The case of Monroe v. Thomas, 95 Miss. 644, 48 So. 1025, says: "That sections 4284 and 4332, Code of 1906, declares the only matters which will invalidate a tax sale. The former section has reference solely to description of property which is not in question in the instant case. The latter section 4332, Code 1906, section 6966, Hemingway's Code, then, according to the above decision, contains the only matters that bear on this case. This section first gives the form of conveyances by the tax collectors, then recites what shall invalidate such conveyances, none of which things are shown to be true in this case. It is clear that there has been no redemption nor a tender of the taxes due, nor has it been shown nor attempted to be shown that the same was made at the wrong time or place."

HOLDEN, J. ANDERSON, J. concurring. SMITH, C. J. dissenting.

OPINION

HOLDEN, J.

This is a suit in chancery by the appellant, Long Bell Company, to cancel the claim of appellee to certain lands and to quiet the title of appellant thereto. On a final hearing the court refused to grant the relief sought, from which decree this appeal is prosecuted.

This appeal presents two questions for our decision: One is whether or not section 4320, Code of 1906 (section 6954, Hemingway's Code), is unconstitutional, in that it provides an assessment, by the collector, of lands left unassessed by the assessor, but fails to provide for any notice to the owner; the exact point in this case being whether a tax title obtained through a sale under this statute is valid. The other question raised is whether or not the collector may legally back assess land and sell it under the above section in a case where the same land had already been assessed, but assessed as vacant, and not valued, by the assessor, and approved by the board of supervisors in due course under the law.

We shall omit deciding the first question as to the constitutionality of the statute, because it is unnecessary to do so, since a decision of the second question will settle the case.

The appellee claimed title under a tax sale for the taxes of 1913 and 1914, which were back assessed by the collector, in 1915, under said section 4320, Code of 1906 (section 6954, Hemingway's Code). The appellant claimed in his bill, and showed by undisputed proof, that the land was assessed on the rolls for the years of 1913 and 1914 as "vacant" land and valued at blank or nothing. These assessments were considered, passed upon, and approved by the board of supervisors in due course during said years. And it is urged therefore that said land was not "left unassessed by the assessor" as provided in said statute, and that the back assessment by the collector was void, and consequently the sale thereunder was void.

After a careful consideration of the question we have reached the conclusion that the contention of the appellant is well grounded. The land had been assessed on the rolls for the years 1913 and 1914 and has passed under the eyes of the assessor and board of supervisors, and been duly and legally approved by the latter. Therefore it was not "unassessed" for these years in the sense that it had escaped assessment and could be back assessed by the collector. In such a case the regularity or validity of the assessment is not involved, but the inquiry is, before the assessment under the said statute can be made, whether or not there has been an assessment in fact which has not escaped the notice and consideration of the board of supervisors. In other words, has the property been withheld from the assessment roll? We think not in this case, because there appears to have been an actual assessment and approval by the board of supervisors, even though it may not be valid in the eyes of the law. On this reasoning we think the back assessment here by the collector was without warrant and void.

The view we express is supported clearly in principle in Adams v. Luce, 87 Miss. 220, 39 So. 418. In that case this court said:

"It will not do to say that, because an assessment is utterly void in the eye of the law, though once actually made, such property has escaped taxation. The very term 'escape,' ex...