Reed, Tax Collector v. Norman-Breaux Lumber Co.

• Decision Date: 06 February 1928
• Docket Number: 26732
• Court: Mississippi Supreme Court
• Parties: REED, TAX COLLECTOR, v. NORMAN-BREAUX LUMBER CO. [*]

115 So. 724

149 Miss. 395

REED, TAX COLLECTOR, v. NORMAN-BREAUX LUMBER CO. ^[*]

No. 26732

Supreme Court of Mississippi

February 6, 1928

Division B

Suggestion of Error Overruled March 19, 1928.

APPEAL from chancery court of Adams county. HON. R. W. CUTRER Chancellor.

Suit by the Norman-Breaux Lumber Company against W. H. Reed, tax collector for Adams county, for an injunction. From a judgment for plaintiff, defendant appeals. Reversed, and bill dismissed, and cause remanded.

Judgment reversed, bill dismissed, and cause remanded.

L. T. Kennedy, for appellant.

There are a great many points raised in the bill and upon which evidence has been introduced that are absolutely immaterial. There are but two propositions really involved in this very lengthy bill and large record and they are as follows:

1. The assessment; 2. The levy. The creation of the district cannot be attacked in this, a collateral proceeding, and, in addition thereto, the creation of the district was validated by chapter 225, Laws of 1924. The validity of the bond issue, for all of the reasons now set up, has already been passed upon by this court in a former hearing of this cause.

The assessment upon which the tax collector relies in this case and for the collection of this tax was not left on the old assessment roll made by the assessor but the tax collector and the tax assessor each under authority of law laid a back assessment against this property, describing it in a manner that would be good in a deed of conveyance, certified it to the board of supervisors, and gave notice to the Lumber Company; it appeared and protested the assessment and on approval thereof by the board of supervisors the Lumber Company did not appeal to the circuit court. We therefore have a valid assessment and a valid levy as shown by the record and the motion to dissolve the injunction should have been sustained.

Counsel's main contention as to the assessment and the levy is now based upon his amendment to the original bill made on the day the motion to dissolve was tried, to the effect that the board of supervisors could not make a valid levy in each of the years 1924 and 1925 because it did not have a valid assessment and therefore the immediate question is not really the validity of the assessment--because it seems to be conceded that the back assessment cured all errors in the assessment--but that there is no valid levy to operate on that assessment. Counsel seems to have gotten his idea for the amendment from the opinion. In the former hearing of this cause and in which this court quoted from Mullins v. Shaw, 28 So. 958, as follows:

"It is necessary not only to have a proper levy of taxes but it is essential to have a legal assessment of the lands upon which the levy is to operate. The assessment roll is the warrant of the tax collector for collecting the taxes. If that is void, his action in the sale of the land under it is void." It appears that it will be contended by appellee that this is an authority for the contention that any levy of taxation without a proper assessment is void. The language immediately preceding the citation holds directly that a levy of taxation without any assessment is a valid levy. We quote as follows: "There was in that case nothing imperfect in the levy of the state and county taxes as there is nothing imperfect in this case in the levy of the taxes. In fact, the taxes, state, county and levee, in the present case, are legal. The defect consists in having no legal assessment of lands upon the levies may operate."

If the appellee's contention were correct an entire assessment roll, invalid, could not be certified as an additional assessment and amount to anything because the board of supervisors would again have to make a levy of taxation.

We respectfully submit that this cause should be reversed and remanded, not only because of the defects in the bill, but because the preliminary injunction was granted without notice, was granted without the proper conditions in a bond, or the proper penalty in the bond, and at a time when there was a valid assessment of said property accurately describing it, approved by the board of supervisors and from which no appeal had been taken, and at a time when there was a valid levy and the taxes were due and unpaid.

Luther A. Whittington, for appellee.

On the original bill of complainant which was before this court before, it was held that the assessment and levy of taxes made for the year 1924 was void. We insist, therefore, that it has been definitely held under the same facts as disclosed by the former record, that there was never for the years 1924 and 1925 any assessment roll of the Homochitto Swamp Land Drainage District. Under the express provisions of section 377, Code of 1906, a separate additional assessment was required to be made of all the overflowed lands in each swamp land district, and all laws as to land assessments and all laws applicable to the sale of lands for delinquent taxes shall apply to such Drainage District assessment and taxes and the sale of such lands for delinquent taxes, so far as same are not inconsistent with these provisions.

The time for making the general land roll was in 1923 and 1925 and the evidence in this case shows that no such assessment as required by law was made for these years, presented to the board by the assessor, or approved, and further shows that the tax collector himself did not receive any such roll and had no such in his office for the years 1924 and 1925.

It is now urged, however, that both the tax collector and the assessor since the rendering of said decision, made a back assessment of the lands of appellee, and that same was reported to and approved by the board of supervisors; that notice was given to appellee and that no appeal was taken from the order of the board by appellee approving said assessment. Our contention is that in the absence of a primary assessment roll made as required of law of said Homochitto Swamp Land District, that the assessor and tax collector were both without authority to back assess any lands and that the order of the board therefore was void and the assessment was void.

The assessor himself says that he did not file it with the board; that he did not certify to it, and that the board did not approve it, in the absence of a primary assessment, that is to say, an assessment roll made as required by law, ratified and approved by the board, and certified to by the assessor and submitted to the board for their approval, that neither the assessor nor the tax collector were authorized, under the law, to back assess any property of appellee as being in said Homochitto Swamp Land District. Johnston v. Puffer, 111 Miss. 240. Applying this principle there can be no assessment of property until it is listed according to law, and there can be no valid assessment even then until same is ratified and approved by the board of supervisors. Touching the authority of the assessor to make a back assessment, we find only two statutes conferring such--Sections 6911 and 6947, Hemingway's Code. Under the first statute it is provided that when the assessor shall discover any property that may have escaped taxation in former years,--"He shall assess such persons and property for such former years distinctly specifying the fact of such escape and discovery by him on a page or pages of his assessment roll, separate from the assessment for the current year." Section 6947 provides: "That the assessor may add any person or thing to his roll, after returning his roll, at any time before action on it by the board." It is plainly manifest therefore that the assessor could not act under the authority conferred by either of these sections, unless he had an assessment roll; and in this case, the assessor himself says that there was none.

Touching the authority of the tax collector to "back assess" section 6954, Hemingway's Code, provides:--"The tax collector shall assess and collect taxes on land liable to taxation left unassessed by the assessor, and all land that has become liable to taxation since the last assessment; and, he shall also assess such other persons and personal property as he may find unassessed by the assessor." This section plainly presupposes the existence in the hands of the sheriff and tax collector of an assessment roll made by the assessor and approved by the board, as required by law. He had no such roll in his office; he had a "sheet of paper," one for the year 1925, and one for the year 1924, purporting to contain a list of the lands in the drainage district, not sworn to, not certified to, and not approved by board of supervisors and never submitted to the board of supervisors, but handed directly to him by the assessor; the lands of appellee appear on these sheets of paper just the same as all other lands therein, although there might be said to be a void description thereof.

Can it be said that this section conferred authority upon the tax collector to back assess property or to assess property when there was no roll whatsoever in his office? We say not. Section 6954 therefore clearly is applicable only to a case where an assessment roll is on file with the sheriff, which assessment roll shows unassessed property which should be thereon. Authority to act under this section arises only when it is made to appear from a roll in the hands of the sheriff that certain property has been left unassessed by the assessor; within the limitation, measured solely by whether he has a roll and whether on that roll property has been left unassessed is the tax collector authorized to act. And when he does act, he must list the property, on the roll fixed by law as the particular assessment roll upon which the assessment...