Lord v. City of Kosciusko

• Decision Date: 23 April 1934
• Docket Number: 30771
• Citation: 170 Miss. 169,154 So. 346
• Court: Mississippi Supreme Court
• Parties: LORD v. CITY OF KOSCIUSKO

154 So. 346

170 Miss. 169

LORD v. CITY OF KOSCIUSKO

No. 30771

Supreme Court of Mississippi

April 23, 1934

Division A

1 RECORDS.

Affidavits respecting date of ninety-nine year lease destroyed in courthouse fire, and which were executed pursuant to statute that such affidavits when executed and recorded should stand in place of lost deed, held to control over conflicting recitals contained in deeds conveying part of land involved (Laws 1858, chapter 371).

2. MUNICIPAL CORPORATIONS.

State's property may not be, and court will assume is not, embraced in statute making abutting property liable for local improvements (Code 1930, sections 2558, 2562).

3. MUNICIPAL CORPORATIONS. Public lands.

Though state owned fee of sixteenth-section school lands, exclusive right of lessee thereof to use and possession during lease was "property right;" hence to that extent lands were property of lessee, and subject to state, county, and municipal taxes and assessments for local improvements and sale of such lands for nonpayment of taxes or local assessments thereon during life of lease could not divest state of its reversion thereto on expiration of lease (Code 1930, sections 2558, 2562).

HON. T P. GUYTON, Chancellor.

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

Bill by C. C. Lord against the City of Kosciusko and others. From an adverse decree, complainant appeals. Affirmed.

Affirmed.

J. D. Guyton, of Kosciusko, for appellant.

"Recitals in deeds" have long since by the courts been given quite high value as evidence. The older the deeds are, the stronger the value as evidence of fact stated in such recitals. In the absence of reliable and quite convincing evidence to the contrary, they are accepted as true.

Jones on Evidence (3 Ed.), sections 50 and 281; 22 C. J., page 859, sec. 1028, page 970, sec. 1210; Jones v. Frank, 123 Miss. 280, 85 So. 310; McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 47 So. 801; Bowen v. Chess, 83 Miss. 218, 35 So. 444; Clark v. Hibler, 109 Miss. 432, 69 So. 220.

On the other hand, ex parte affidavits are always regarded as weak evidence, when receivable at all.

2 C. J. 376, sec. 149; 23 C. J. 38, sec. 1780.

The appellant, being the owner of a mere lease of this land for a term of years, is not an "owner" of the lot that should be assessed and the law requires to be assessed. The assessment being made against the appellant's "leasehold interest" in this lot for the entire one-third of the cost as it were the fee, is void on its face; and a void judgment is subject to collateral attack at any time.

Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, 42 So. 290; Jefferson Davis County v. Lumber Co., 49 So. 611, 94 Miss. 530; 44 C. J., Municipal Corporations, secs. 3292 and 3293; Martin v. Miller, 103 Miss. 754, 60 So. 772; Swayne v. Hattiesburg, 111 So. 818, 147 Miss. 244; Paepecke-Leight Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Gulf View Apartments v. City of Venice, 145 So. 842; Jones v. Madison County, 72 Miss. 777, 18 So. 87.

Section 112 of the Constitution, the equality and uniform taxation clause, applies only to ad valorem taxes. It does not apply to special assessments like that in the case at bar.

Daily v. Swope, 47 Miss. 367; Clarksdale Ins. Agency v. Cole, 87 Miss. 637, 40 So. 228; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Jones v. Belzoni Dr. Dist., 102 Miss. 796, 59 So. 921; Stingly v. Jackson, 140 Miss. 19, 104 So. 465; Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; 44 C. J., Municipal Corporations, sections 2822, 2904 and 2895.

Cities and counties have no inherent powers of taxation. All their power to tax is derived solely from legislative grant expressly given or necessarily implied.

Daily v. Swope, 47 Miss. 366; Beck v. Allen, 58 Miss. 166; Adams v. Kuykendall, 83 Miss. 583, 35 So. 830; 43 C. J., Municipal Corporations, secs. 185, 187, 189 and 190; 44 C. J., Municipal Corporations, secs. 4271, 4272 and 4811.

Chapter 194, Laws of 1924, under which the defendant city of Kosciusko operated in this case, is a complete scheme of making public improvements in itself; and to it alone and statutes in pari materia we must look for all its powers to make such improvements and to assess the benefits or cost thereof against property.

44 C. J., Municipal Corporations, sec. 2822; Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818; Stingley v. City of Jackson, 140 Miss. 57, 104 So. 465.

Since the decision by this court of Stingley v. City of Jackson, 140 Miss. 57, and Swayne v. Hattiesburg, 147 Miss. 244, wherein, in the last named case, this court said that "the state or any political subdivision of the state with the authority of the state may tax property for public purposes to the extent of confiscation, " we do not here, nor are we called on so to do, question, the power of the Legislature to provide that 16th section lands, or the leasehold interest therein, shall or may be assessed with the cost or a portion thereof of such street improvements. We do contend that the Legislature has not provided therefor; and without such legislative authority the defendant city is without power to assess such property.

60 C. J. 215, sec. 92; Gray's Limitations on Taxing Power, secs. 1925-1933; Edwards Hotel and City Ry. Co. v. Jackson, 51 So. 802, 96 Miss. 547; Harvey Coal Co. v. Dillon, 53 S.E. 928, 6 L. R. A. (N. S.) 628; Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, 42 So. 290.

A local assessment can only be levied on land; it cannot as a tax be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited.

Macon v. Patty, 57 Miss. 386; 44 C. J. 485, sec. 2811; 44 C. J. pp. 519-521.

Statutes authorizing municipalities to make public improvements and charge the cost or benefits to adjoining lots are in derogation of the common law, and must be strictly construed.

44 C. J. 492, sec. 2283.

Local improvement assessments are levied solely for a particular purpose, end with the accomplishment of that purpose, are based on benefits to the property assessed, are charges against the property only, and are not a personal liability of the property owner.

San Diego v. Linda Vista Dr. Dist., 35 L. R. A. 33, and note; Macon v. Patty, 57 Miss. 378; Dailey v. Swope, 47 Miss. 367; Nugent v. City of Jackson, 72 Miss. 1040, 18 So. 493.

Section 3156, Code of 1930, has no application to assessments for local improvements.

Leflore County v. Whittington, 118 Miss. 799, 80 So. 8.

James T. Crawley, of Kosciusko, for appellee, Attala County.

A form of affidavit has been provided by the Legislature to cover a case exactly on all fours with this one.

Section 7, chapter CCCLXXI, Laws 1857 to 1860.

We understand the force of the argument of counsel with reference to recitals in deeds as well as the rule with reference to ancient documents. However, in a case of this kind where the statutory remedy is to be considered it transcends the ordinary rules of law with reference to the construction placed upon recitals in deeds and the rule with reference to ancient documents.

On the admission of Mississippi as a state into the union the title to the 16th sections vested in it without grant from the United States.

Jones v. Madison County, 72 Miss. 777; Street v. City of Columbus, 75 Miss. 822; Cooper v. Roberts, 18 Howard 181.

The title to the 16th section of land is in the state in trust for the support of the schools of the township.

Jefferson Davis County v. James-Sumrall Lbr. Co., 94 Miss. 530.

The leasehold interest in sixteenth section lands is what is taxable and not the fee title itself.

Street v. City of Columbus, 75 Miss. 822; North American Lbr. Co. v. City of Blaine, 154 P. 446, 89 Wash. 366; City of Mt. Sterling v. Montgomery County, 153 S.W. 952, 152 Ky. 637, 44 L. R. A. (N. S.) 57; City of Grenada v. Grenada County, 76 So. 682.

The courts of Mississippi will hold that unless there is a clear statutory enactment providing for the assessment of public property for public benefits, that the same cannot be had and cannot be charged against the county.

Thogmartin v. Nevada School District, 176 S.W. 473, 189 Mo.App. 10; Rabel v. City of Seattle, 87 P. 520, 44 Wash. 482; City of Lagrange v. Troup County, 132 Ga. 384, 16 Ann. Cas. 885; State v. Kilburn, 129 Am. St. Rep. 205; City of Huntsville v. County of Madison, 52 So. 326, 166 Ala. 389; State v. New Orleans Land Co., 75 So. 515; Whittaker v. City of Deadwood, 122 N.W. 590.

The exemption of educational property from taxation does not apply to local assessments against real property, based on benefits which accrue to it from public improvements.

School, etc., v. Summerville, 181 Ind. 463, Ann. Cas. 1916D 661; City of Nokomis v. Zepp, 92 N.E. 246; Star Street In Borough of Queens, 131. N.Y.S. 71, 73 Misc. 380.

Our contention that the title to this property being reserved in the state, only the leasehold interest of the lessee could by any means be taxed, is borne out by section 6767 of the Code of 1930, which applies to the assessments of sixteenth section lands for the purpose of paying drainage assessments. This is controlling so far as the county is concerned.

Ralph L. Landrum, of Kosciusko, for appellee, City of Kosciusko.

The affidavits are the best possible evidence of when the lease expired; the affidavits having been made by the two persons most vitally interested in the lease at the time it was made, and the two people who showed to be fully and personally acquainted with the facts if anyone was. Affidavits were made in accordance with and under statutory authority.

The finding of the trial court that appellant is precluded from questioning the assessment made by the said city of Kosciusko, against...