McGuire v. Union Investment Co.

• Decision Date: 03 April 1899
• Citation: 25 So. 367,76 Miss. 868
• Court: Mississippi Supreme Court
• Parties: OSCAR G. MCGUIRE ET AL. v. UNION INVESTMENT CO. ET AL

25 So. 367

76 Miss. 868

OSCAR G. MCGUIRE ET AL. v. UNION INVESTMENT CO. ET AL

Supreme Court of Mississippi

April 3, 1899

March 1899

FROM the chancery court of Bolivar county, HON. A. H. LONGINO Chancellor.

The appellants, McGuire and others, were complainants in the court below. The Union Investment Company and others appellees, were defendants there. The object of the suit was to confirm complainants' tax title and to cancel the claims of defendants to the land as clouds upon the title. The answers set up the defects in the assessment under which the tax sale was made, as shown in the opinion. The decree of the court below adjudged the complainants' title void dismissed the bill, but taxed defendants with the costs. The complainants appealed to the supreme court and defendants prosecuted a cross appeal. [The chapter on "Revenue " code 1892, became operative April 2, 1892. See act of said date adopting the code (sec. 12). Code 1892, p. 115.]

Decree affirmed.

Sillers, Jones & Owen, for appellants and cross appellees.

The pivotal point in this case is whether an assessment roll filed or "returned" by the assessor on the eighteenth day of August, 1892, is sufficient to maintain a sale for taxes made thereunder, and, in so far as our research has extended, although often decided in cases coming up under the old codes in the negative, has never been passed upon by this tribunal in a case arising under the revenue chapter of the code of 1892. The code of 1880, under which the most recent decisions holding the assessment roll void unless filed on or before the first Monday of July were annunciated, was materially changed by the code of 1892 in such a manner as to unequivocally manifest the clear intention of the law-making power to effectually sweep away this ground of objection to the validity of a tax sale. The code of 1880 provided for the delivery of the roll on or before the first Monday of July (§ 499), which provision is adopted in the code of 1892 (§ 3782), but in the former there is no such provision as that contained in the latter (§ 3783, code 1892), which reads: "The failure of the assessor to certify and swear to his assessment roll, or to return it on the day named for its return, shall not affect the validity of the assessment if approved by the board of supervisors or by operation of law." The record shows that the roll was duly approved on September 8, 1892. To avoid the disastrous effect of this statute, counsel for appellees labor hard in an effort to show that it is limited and controlled by provisions specifying the time of meeting of the board of supervisors and for the performance of specific acts. We shall not dignify their contention in this respect by an extended argument against it, but shall content ourselves by a reference to § 3848, code of 1892, a reading of which will conclusively show that the provisions relative to stated meetings are merely directory. This section is in part as follows: "If the board of supervisors fail to meet at the time appointed, it shall be convened by the president thereof as speedily as practicable for the discharge of the duties prescribed by this chapter." In the absence of proof the presumption will be indulged that the meetings of the boards of supervisors, at which the several orders copied in the record were made, were regularly called and held. Morgan v. Blewitt, 72 Miss. 903.

Moore & Clark, for appellees and cross appellants.

The failure to file the roll on the first Monday in July, 1892, rendered the assessment absolutely null and void, and took from the tax collector any and all right to sell the land for taxes. This assessment roll must be governed by the provisions of the revenue law of 1892. See § 3782 et seq. By reference to these sections, it will be seen, first, that the assessor is required to complete the assessment and deliver the roll to the clerk of the board of supervisors on or before the first Monday of July of each year. Section 3783 of the code provides that the failure to return the roll on the day named shall not affect the validity of an assessment, if approved by the board of supervisors or by the operation of law; but this section must be read in connection with the whole law upon the subject, as well as the construction placed upon those laws by the decisions of this honorable court.

By looking at § 3784, it will be at once apparent that the time within which the assessment roll must be filed is limited and prescribed by law, and that, while the failure to complete and file the roll by the first Monday of July is not of itself fatal to the validity of the roll, still it must be completed and must be filed by a day not later than the first Monday in August; and, unless it is completed by the first Monday in August, or unless the board is satisfied that it can be completed by that time, then the old assessment must be abandoned, and the board must proceed to order an entirely new assessment of land. This is mandatory, and not discretionary with the board. Section 3784, code 1892; Stovall v. Connor, 58 Miss. 138.

The record of this case discloses the fact affirmatively that the assessment roll was not completed by the first Monday of July, 1892, and that it was impossible for the assessor to complete the roll by the first Monday of August of that year. No new assessment was ordered, but instead thereof the board continued to deal with an assessment which was dead in law and at its...