Nickey v. State ex rel. Attorney-General

• Decision Date: 03 April 1933
• Docket Number: 30067
• Court: Mississippi Supreme Court
• Parties: NICKEY et al. v. STATE ex rel. ATTORNEY-GENERAL

145 So. 630

146 So. 859, 147 So. 324, 167 Miss. 650

NICKEY et al. v. STATE ex rel. ATTORNEY-GENERAL

No. 30067

Supreme Court of Mississippi

April 3, 1933

January 30, 1933, March 20, 1933

APPEAL from chancery court of Tunica county, 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. Sec 145 So. 630.

Reversed in part and affirmed in part. Overruled. Overruled.

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 A.D. 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; Saffrans 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.

Chapter 323, Laws of 1920; Chapter 120, Laws of 1918; State v. Wyoming Manufacturing Company, 138 Miss. 249, 103 So. 11; Moller-Vandenboon Lumber Company v. Attala County, 135 Miss. 249, 99 So. 825; Wilkinson County v. Foster Creek Lumber Company, 135 Miss. 616, 100 So. 2.

The bill contains no allegation or prayer that the chancery court make an assessment. It is a straight action on the assessment roll as a personal judgment.

Refusal of the tax collector to sell the land of the appellants to satisfy the debt constituted a positive violation of the law.

Section 4326, Code of 1906; Section 6960, Code of 1907; Section 8245, Code of 1927; Chapter 199, Laws of 1908; Section 6962, Code of 1917; Section 8247, Code of 1927.

The sale of the land would have extinguished the debt.

Carrier Lumber & Manufacturing Company v. Quitman County, 156 Miss. 196, 125 So. 416.

The land must have been sold for all the taxes. The right to have it sold for the full amount is a valuable and substantial right.

Lumbley v. Yazoo Delta Mortgage Co., 149 Miss. 864, 116 So. 95, 97; Chapter 230, Laws of 1912; Section 5268, Code of 1917; Section 6103, Code of 1927.

Refusal to sell this land denied to the appellants the equal protection and immunities of the law and constituted a discrimination, in violation of the Fourteenth Amendment to the Federal Constitution.

Yick Wo v. Hopkins, 118 U.S. 356, 374, 30 L.Ed. 220, 228.

The statutes of this state do not authorize the imposition of personal liability on nonresidents. The power to tax is derived solely from the statutes. Every person must be assessed in the county in which he resides at the time of the assessment. Being a nonresident, the appellant cannot be said to reside in any county subject to the jurisdiction of this state and, consequently, there is no authority to impose personal liability.

Section 4258, Code of 1906; Section 6891, Code of 1917; Section 8191, Code of 1927.

While section 8189, Code of 1927, provides that the assessment roll shall be prima facie correct, this is a rule of evidence, the force of which is entirely destroyed by the allegation of the bill that the land, stripped of its timber, is worth less than the taxes. The valuation cannot be used as a basis upon which to calculate the tax and thus to determine its amount, and its value denied in order to provide the ground upon which to rest a lawsuit. The proof in this case shows the land, stripped of its timber, tract for tract, was worth from two and one-half to four times the taxes, including the drainage charges. No proof of value whatever was introduced except the roll, the correctness of which is disputed by the pleadings of the complainant.

Taxes do not constitute a debt at common law.

No personal action will lie for taxes as a debt, at common law.

26 R. C. L. 25 and 380; Lane County v. Oregon, 19 L.Ed. 101; Merriwether v. Garrett, 26 L.Ed. 197; New Jersey v. Anderson, 56 L.Ed. 284.

Neither the board of supervisors, the state tax commission nor the chancery court has any power to impose liability for taxes independent of the statute. In the exercise of jurisdiction of either and all of them, they are governed strictly by the statute which prescribed the jurisdiction of each of these authorities and the power to act is derived from the statute and there must be a literal compliance with the statute and the jurisdictional facts must affirmatively appear in the record of the proceedings of each of these agencies of government. In the absence of a literal compliance with the statute and a recital of the...