Mississippi Cent. R. Co. v. City of Hattiesburg

• Decision Date: 23 May 1932
• Docket Number: 30052
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENT. R. CO. v. CITY OF HATTIESBURG

141 So. 897

163 Miss. 311

MISSISSIPPI CENT. R. CO. v. CITY OF HATTIESBURG

No. 30052

Supreme Court of Mississippi

May 23, 1932

Division B

1 TAXATION.

Protest at time of paying taxes was necessary to enable party to recover taxes erroneously paid.

2 TAXATION.

Statute authorizing refund of taxes erroneously paid, whether paid under protest or not, contemplated prospective operation (Laws 1926, chapter 196).

3 STATUTES.

Statutes will be given prospective operation unless contrary intention is shown.

4 STATUTES.

Statute should not be given effect which imposes additional burden on past transactions, unless that plainly appears to be legislature's intention.

5. TAXATION.

Statute authorizing refund of taxes erroneously paid, whether paid under protest or not, creates right, and not mere remedy (Laws 1926, chapter 196).

HON. W. J. PACK, Judge.

APPEAL from the circuit court of Forrest county, HON. W. J. PACK, Judge.

Action by the Mississippi Central Railroad Company against the City of Hattiesburg. From the judgment, plaintiff appeals. Affirmed.

Affirmed.

Hannah & Simrall, of Hattiesburg, for appellant.

The illegality of the action of the state Tax Commission in attempting to assess the appellant's property in the City of Hattiesburg at a forty per cent higher valuation for municipal taxation than for state and county taxation for the years 1922 and 1923 was adjudicated by this court in the case of the City of Hattiesburg v. New Orleans and Northeastern Railroad Company, 141 Miss. 497, 106 So. 749.

This record does not present the question of the taxing authorities having the right and authority under the law to make the assessments complained of and of the taxing authorities having made assessments that were illegal on account of their failure to do what the law required they should do. On the contrary, it presents the question of the taxing authorities having acted in direct conflict with both the statutes enacted by the Legislature and the Constitution of the State.

Being entirely void from their beginning, the assessments here complained of amounted to nothing more than scraps of paper. As far as collecting the taxes from the appellant, under the authority of these assessments, goes, the City of Hattiesburg might as well have been acting upon the authority of blank pieces of paper. The maxim of the law that a judgment of any court void because of the lack of jurisdiction of the court over the subject matter can confer no rights upon any party is too well settled to require the citation of authorities to support it.

It has been the settled law of our state ever since it has been in existence that property must be assessed at its true value. Both the State Tax Commission and the City of Hattiesburg are bound to have known that such was the law and they are both bound to have known that the assessment was void. No good reason could exist for requiring the taxpayer to point out to the City of Hattiesburg that the assessment was void, when in truth and in fact no assessment existed.

Leonard v. City of Canton, 35 Miss. 189.

In this case the City of Hattiesburg stands exactly in the shoes of the State Tax Commission and it has no more right to collect and retain the money than the State Tax Commission had to make the assessments.

Tuttle v. Everett, 51. Miss. 27.

The distinguished city attorney took the dogmatic position in the court below, and the learned circuit judge adopted his view, that payment under protest was an essential prerequisite to the right of the recovery in every case. As we have pointed out, this view is not in accord with reason and logic or with the authorities.

In enacting chapter 273, Laws of 1926, the Legislature must have been actuated by a desire to make the tax laws with reference to the refund of erroneously and illegally collected taxes more just and equitable.

The act of the Legislature just referred to is one declaratory of the public policy of the State of Mississippi. It is in conformity with the rule that the taxing power must be most strongly construed against the taxing authorities.

In the case at bar the appellant followed this statute exactly. It presented its claims to the City of Hattiesburg and sought a refund of the amount due it. The City of Hattiesburg wrongfully denied its claim and the appellant then had the right to elect whether or not it would appeal from the order or bring a plenary suit.

Pearl River County v. Lacey Lumber Company, 128 Miss. 885, 91 So. 572.

Under the allegation that the sums of money were paid by the appellant to the city and received by the city from the appellant under a mutual mistake of fact, the appellant is likewise entitled to recover.

Bessler Movable Stairway Company v. Bank of Leakesville, 140 Miss. 537, 106 So. 445; Bank of Belmont v. Judson Lumber Company, 143 Miss. 86, 108 So. 440.

R. W. Heidelberg, of Hattiesburg, for appellee.

Payment under protest is necessary.

City of Vicksburg v. Butler, 56 Miss. 72; Town of Tupelo v. Beard & Holditch, 56 Miss. 532; Jackson v. Newman, 59 Miss. 385; Town of Wesson v. T. C. Collins, 72 Miss. 844; Pearl River County v. Lacey Lumber Co., 86 So. 755, 124 Miss. 85.

Where the tax is utterly void, as stated in the case of Pearl River County v. Lacey Lumber Company, supra, a general protest is sufficient, but still a protest is required.

Union Land & Timber Co. v. Pearl River County, 106 So. 277, 141 Miss. 131.

It is the settled law of this state that, in the absence of a statute providing otherwise, taxes or license fees voluntarily paid without protest cannot be recovered, although assessed and collected without legal authority.

Union Land & Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Lamborn v. Dickinson, County Commissioner, 7 Otto. 181-188, 24 L.Ed. 926; Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 534.

Chapter 273, Laws of 1926 is not applicable.

Chapter 273 of the Laws of 1926 was enacted years after the payment of the tax involved in this case.

The mere fact that it is charged in the declaration that plaintiff filed a claim with the governing authorities of the municipality for the allowance to be allowed by it does not cause this case to be a proceeding under chapter 273 of the Laws of 1926.

Chapter 273 of the Laws of 1926 is not retroactive.

It is a familiar rule of statutory construction that retroactive operation shall not be given to a statute, unless it be the manifest intention of the Legislature that it should have that effect. Before a statute will be given such retroactive effect, there must be a plain declaration therein that it is so to operate.

Pan-American Petroleum Corporation v. Miller, 122 So. 393; Eastin v. Vandorn, Walk. 214; Gayden v. Bates, Walk. 209; Brown v. Wilcox, 14 Smedes & M. 127; First Decennial Digest, Statutes, Section 263; Hooker v. Hooker, 10 Smedes & M. 599; Stewart v. Davidson, 10 Smedes & M. 351; Garrett v. Beaumont, 24 Miss. 377.

The courts will not give a statute a retroactive...