Nickey v. State
| Decision Date | 30 January 1933 |
| Docket Number | 30067 |
| Citation | 167 Miss. 650,145 So. 630 |
| Court | Mississippi Supreme Court |
| Parties | Nickey Et Al. v. State ex rel. Attorney-General. |
(In Banc.)
1. CONSTITUTIONAL LAW. Statute making tax a debt due by taxpayer for which action may be brought held not invalid as depriving taxpayer of property without due process of law (Code 1930 section 3122; Const. U.S. Amend. 14; Const. Miss. 1890 section 14).
Code 1930, section 3122, providing that every lawful tax assessed "shall be a debt due by the" taxpayer, whether properly assessed or not, and authorizing recovery thereof by action, does not violate due process clause of both State and Federal Constitutions, in view of further provision that in all actions for the recovery of ad valorem taxes, the assessment roll shall only be prima facie correct, which furnishes the taxpayer with an opportunity for hearing to contest the validity of the tax.
2 APPEARANCE.
Nonresident defendants who appeared and answered bill of complaint were before court, same as residents, and same as if they had been personally served with summons.
3 DRAINS.
Drainage district's assessments are charge only on lands against which they are assessed, and do not constitute debt against landowner which may be enforced by action (Code 1930, section 3122).
4 DRAINS.
Fact that owner of land subject to drainage district assessments was removing timber which constituted chief value of land held not to entitle state to charge other land of taxpayer outside drainage district with payment of drainage assessments upon ground that security had been destroyed.
5. DRAINS.
In suit by state against taxpayer to enforce taxes, including drainage assessments, against other lands of taxpayer, wherein taxpayer gave bond to discharge attachment, drainage assessments determined to be unenforceable against other lands of taxpayer held not enforceable under bond (Code 1930, section 3122).
6. TAXATION.
Proceedings by tax collector of county, exhausting statutory remedies provided for collection of taxes, held not condition precedent to action by state to collect taxes as debt against taxpayer (Code 1930, section 3122).
7. TAXATION.
State, in action against taxpayer for collection of taxes as debt, held not entitled to recover costs of advertising lands by tax collector and tax collector's statutory damages, where statutory proceedings were abandoned in favor of action by state (Code 1930, section 3122).
ON SUGGESTION OF ERROR. [146 So. 859. No. 30067.]
1. TAXATION. Taxes may be collected by judicial process when authorized by Legislature (Code 1930, section 3122). 2. CONSTITUTIONAL LAW. Personal liability against nonresident for taxes meets due process requirements if, before obligated to pay tax, nonresident has been given appropriate notice and opportunity to contest tax (Code 1930, section 3122). 3. CONSTITUTIONAL LAW. Where nonresident defendants appeared in state's action for collection of taxes as debt, and submitted to jurisdiction, and had opportunity for hearing, requirements of due process were met (Code 1930, section 3122).
ON MOTION TO CORRECT JUDGMENT. [147 So. 324. No. 30067.]
1. APPEAL AND ERROR. Alleged error in calculation and statement in court below of amount due by appellants could not be rectified on motion to correct reviewing court's judgment, where not separately and particularly assigned (Rules of the Supreme Court, rule 6). 2. APPEAL AND ERROR. Assignment that court erred in rendering every part of decree held insufficient. 3. APPEAL AND ERROR. Error in decree not complained of on appeal therefrom cannot be considered on motion to correct reviewing court's judgment (Rules of the Supreme Court, rule 6).
HON. R. E. JACKSON, Chancellor.
Suit by the state of Mississippi on the relation of the Attorney-General against S. M. Nickey and others. From a decree in favor of complainant, defendants appeal. Affirmed in part and reversed in part, in accordance with opinion.
ON SUGGESTION OF ERROR.
Suggestion of error overruled, and former decision adhered to. For former opinion, see 145 So. 630.
ON MOTION TO CORRECT JUDGMENT.
On defendants' motion to correct judgment. Motion overruled. See 145 So. 630.
W. E. Gore, of Jackson, and T. N. Gore, of Marks, for appellants.
The board of supervisors acquired no such personal jurisdiction of the appellants as would support the assessment as a personal judgment and, consequently, a degree rendered against them would constitute taking their property without due process of law.
No state has any power to assess persons or property outside of its territorial jurisdiction or to enter a personal judgment against one not summoned or who did not appear.
The legislature possesses no power to enact a statute permitting a personal judgment to be taken against them as nonresidents, without personal service of process or an appearance, at the time the land was assessed.
McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, at 607; Cleveland, Painesville & Ashtabula Railroad Company v. Pennsylvania, 15 Wall. 300, 21 L.Ed. 186; Central Railroad of New Jersey v. Jersey City, 209 U.S. 473, 52 L.Ed. 898; Dewey v. Des Moines, 173 U.S. 193, 43 L.Ed. 665; New York v. McLean, 57 N.Y.App.Div. 601, 68 N.Y.S. 606, 63 N.E. 380; Maltbie's Case, 119 N.E. 389; Pennoyer v. Neff, 95 U.S. 714; Mexican Central Railway Company v. Pinkney, 149 U.S. 699, 705; State Tax on Foreign Held Bonds, 15 Wall. 300, 319; Pendleton v. Virginia, 65 S.E. 536; Winchester v. Stockwell, 74 A. 249; Columbia Star Milling Co. v. Brand, 115 Miss. 625, 76 So. 557; Boutwell v. Grayson, 118 Miss. 80, 79 So. 61; Delta Insurance Agency v. Fourth National Bank, 137 Miss. 855, 102 So. 846; Brown's Case, 50 Miss. 468; Holmes v. Fisher, 49 Miss. 472; McDonald v. Maybee, 61 L.Ed. 608; Bank of United States v. Mississippi, 12 S. & M. 456; Enos v. Smith, 7 S. & M. 85; Neal v. Wellson, 12 S. & M. 649; Vance v. McConnell, Walker 254; Byrd v. State, 1 How. 163; Coleman v. Saunders, 5 H. 287; Lewis v. Garrett, 5 H. 434; DeMoss v. Camp, 5 H. 516; Ayer v. Bailey, 5 H. 688; Ex parte Heyfron, 7 H. 127; Gwin v. McCarroll, 1 S. & M. 351; Prentiss v. Mellin, 1 S. & M. 521; Miller v. Ewing, 8 S. & M. 421; Winston v. Miller, 12 S. & M. 552; Saffrons v. Terry, 12 S. & M. 690; Edwards v. Toomer, 14 S. & M. 75, 78; Hardy v. Gholson, 26 Miss. 70; Wall v. Wall, 22 Miss. 409; Cason v. Cason, 31 Miss. 778; Jonkins v. The State, 33 Miss. 382; Foster v. Simmons, 40 Miss. 585; Treadwell v. Herndon, 41 Miss. 48; Jack v. Thompson, 41 Miss. 49; Glenn v. Wragg, 41 Miss. 654; Bacon v. Bevan, 44 Miss. 293; Moody v. Lyles, 44 Miss. 121; Erwin v. Heath, 50 Miss. 800; Brown's Case, 50 Miss. 468, 483 to 488; Wood v. Page, 55 Miss. 108; Cocke v. Brewer, 68 Miss. 775, 9 So. 823.
The fixed policy and rule of property in this state, by both statutory enactment and judicial interpretation, is that dominion over persons and property must be acquired before the power to impose liability can be exercised.
To support this, we have cited the following authorities: Sections 3123, Code of 1930; 8191, Code of 1927; 6891, Code of 1917; 4258, Code of 1906; 8189, Code of 1927; 6887, Code of 1917; and 4256, Code of 1906; Colbert v. Board of Supervisors of Leake County, 60 Miss. 142; State v. Smith, 68 Miss. 79, 8 So. 294; Adams v. Colonial & United States Mortgage Company, 82 Miss. 263, 34 So. 482; Jahier v. Rascoe, 62 Miss. 699; Catlin v. Hull, 21 Vt. 152; Bristol v. Washington County, 177 U.S. 133, 44 L.Ed. 701; Re Jefferson, 35 Minn. 215, 28 N.W. 256; 1 Cooley on Taxation (4 Ed.), pp. 220, 221 and 223.
The land was not legally assessed and no lawful levy of taxes was made, because of failure to follow the scheme prescribed by the statute and failure of the minutes to set forth the jurisdictional facts to support the assessment as a judgment, either in rem or personal.
Ballard v. Davis, 31 Miss. 525; Caston v. Caston, 60 Miss. 475; Adams v. Bank, 103 Miss. 744, 60 So. 770; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Smythe v. Whitehead, 113 Miss. 184, 97 So. 529; Cameron v. Whittington, 120 Miss. 595, 82 So. 311; Henderson Molpus Company v. Gammill, 149 Miss. 576, 115 So. 716; Gordon v. Smith, 154 Miss. 787, 122 So. 762; McDevitt v. Walls, 154 Miss. 671, 122 So. 766; Tatum v. Smith, 130 So. 683; Board v. Allen, 60 Miss. 93; White v. Railroad, 64 Miss. 366, 1 So. 730; Madden v. Railroad, 66 Miss. 258, 6 So. 181; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204; Postal Telegraph Co. v. Robb, 104 Miss. 165, 61 So. 977; Aden v. Board, 142 Miss. 696, 107 So. 755; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Lake v. Perry, 95 Miss. 550, 59 So. 569; Hard v. Pepper, 128 Miss. 27, 90 So. 181; Wilson v. McCorkle, 155 Miss. 525, 99 So. 366; Poole v. Jones, 136 Miss. 645, 101 So. 786; Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Root v. McFerrin, 37 Miss. 17; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Garner v. Webster County, 79 Miss. 565; Lester v. Miller, 76 Miss. 309, 24 So. 193; Board v. Hottley, 146 Miss. 118, 112 So. 466; Smith v. Board, 124 Miss. 36, 86 So. 707.
The record of this case shows the failure to comply with the statutory scheme and to recite the facts necessary to confer jurisdiction. No presumption is indulged in favor of a judgment of a court of special and limited jurisdiction, but the presumption is that no facts not recited existed and that no act not set forth as having been done was done.
The statutes confer original jurisdiction on the assessor, board of supervisors and state tax commission and appellate jurisdiction on the circuit court and not the chancery court.
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