Reed v. Norman-Breaux Lumber Co.

• Decision Date: 18 January 1926
• Docket Number: 25331
• Citation: 107 So. 545,142 Miss. 756
• Court: Mississippi Supreme Court
• Parties: REED, COUNTY TAX COLLECTOR, v. NORMAN-BREAUX LUMBER CO. [*]

107 So. 545

142 Miss. 756

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

No. 25331

Supreme Court of Mississippi

January 18, 1926

Division A

Suggestion of Error Sustained in Part and Overruled in Part March 29, 1926.

1 DRAINS. Proceedings for issuance of bonds, as well as resulting bonds, held validated by general surative act (Laws 1924, chapter 225).

Proceedings for issuance of drainage district bonds, as well as resulting bonds, sold or contracted to be sold for not less than par though statutory majority had not signed petition, held validated by Laws 1924, chapter 225, a general curative statute.

ON SUGGESTION OP ERROR.

2. DRAINS. Paper not certified, filed or approved held, not a valid assessment for drainage taxes (Code 1906, section 377).

Under Code 1906, section 377, part of the Swamp Land Act of 1902, paper containing list of names and number of acres, headed with name of swamp land district, but not certified by assessor, nor filed in chancery clerk's office, nor approved by board of supervisors, is not a valid assessment for drainage taxes of district.

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. Motion to dissolve temporary injunction was overruled, and defendant appeals. Affirmed and remanded.

Reversed and remanded. Suggestion of error sustained in part and overruled in part.

Ratcliff & Kennedy, for appellant.

The injunction should have been dissolved. The question of the issuance of bonds is regulated entirely by statute; the legislature having prescribed the mode and method may at any time, by curative statutes, waive compliance with its former requirements. The legislature regularly validates taxing districts' proceedings for the issuance of bonds and the bonds themselves. By chapter 225, Laws of 1924, approved April 9, 1924, the legislature validated all proceedings theretofore had by the boards of supervisors looking to the issuance of bonds and thereby waived or cured any irregularities, if any there were, in the petition, notices, etc. The creation of the district was, therefore, validated by the statute cited.

Luther A. Whittington, for appellee.

It is contended by counsel that chapter 225, Laws of 1924, validated all proceedings for the issuance of these bonds, even though it does not expressly validate the bonds. This chapter went into effect on April 9, 1924; the bonds were ordered issued on April 8, 1924; but they were not sold, nor were they contracted to be sold, until some time in June, the clerk being ordered to advertise for the sale of the bonds on May 5, 1924. So, on April 8, 1924, admittedly, these bonds had neither been sold nor contracted to be sold.

We submit to the court that it is a very finely spun theory that counsel are indulging in, in construing chapter 225, Laws of 1924. By reference to said chapter it will be noted that it was an "Act to validate all bonds, etc., which had been sold or contracted to be sold at not loss than par and accrued interest." The evidence and sole purpose of the legislature, therefore, was to validate certain bonds and these certain bonds were limited to those which had been sold or contracted to be sold prior to the enactment of this act.

Counsel for appellant ingenuously undertake to argue to the court that the legislature did more than validate the bonds. They contend that the legislature validated all the proceedings by which the drainage district or other district might have been created as well as the proceedings leading up to the issuance of said bonds.

The plain purpose and express intent of the legislature was to validate all bonds which had been sold or contracted to be sold and, of course, in making such validation, it was necessary to validate, in effect, all proceedings pursuant to which and by virtue of which these bonds had been sold or contracted to be sold.

The only proceedings, we submit, that were intended to be validated by this act were proceedings pursuant to which bonds had been issued or had been sold or contracted to be sold, after authorization, but before issuance. To give this statute any other construction would be exceedingly far-fetched and a departure from the plain intent and meaning of the chapter.

Luther A. Whittington, for appellee, on suggestion of error.

The court erred in reversing the decree of the court below even though it correctly or properly holds that chapter 225, Laws of 1924, validated said bonds. The bill of complaint charged that the assessment of the lands of complainant under the Swamp Land Act and in the Swamp Land District was void, and that since the assessment was void, even though there was a legal levy, even though the bonds were valid, even though all acts and proceedings of the board issuing the bonds had been validated, nevertheless, complainant was entitled to the injunction restraining the enforcement of such levy or the collection of the taxes.

The relief prayed for herein by complainant was based not only upon the illegality of the levy and the illegality of the bond issue, but was also predicated upon the illegality of the assessment. Mullins v. Shaw, 77 Miss. 910. In this case the court held that the levy was legal and proper; but, nevertheless, because the assessment was void, the tax collector was without right to collect the taxes arising by virtue of the operation of the levy.

The record in this case shows that there was not a valid or legal assessment for the year 1924 of the lands in the Homochitto Swamp Land District. A copy of what purports to be the assessment of these lands is shown in the record herein. By reference to same it will be noted that it is altogether unauthenticated, is not signed nor certified to by the assessor, is not approved by the board of supervisors and is not filed with the clerk of the board of supervisors. In short, there is nothing whatsoever to identify, import verity to it or endow it with the sanctity of official action. See section 377, Code of 1906 (section 3752, Hemingway's Code).

We submit, therefore, that the assessment complained of herein as being void and illegal, is void and illegal and that complainant was entitled to have the sheriff enjoined from the collection of the taxes, as the lower court decreed.

Ratcliff & Kennedy, for appellant, in answer to suggestion of error.

It is now contended that a valid assessment of the property had not been made and even though the levy was valid, the collection of the tax should have been enjoined by the court.

There is no merit in the contention for the following reasons: (1) A valid assessment was made; (2) whether the assessment was valid or invalid, the appellee here makes out no cause of complaint because it admits the ownership of the exact acreage and its location in a swamp land district and if the assessment is irregular in any manner, it was not to the prejudice of the lumber company; (3) the bill of complaint is not based upon an illegal assessment and there is no prayer for relief against the same.

The lumber company could not complain of the assessment as being excessive acreage, for it admits the acreage. It could not complain of the ownership, for it alleges the ownership.

However, the assessment is presumed to be legal and regular. The appellee attempted to make proof as to the assessment but the sheet so offered in evidence was not identified as the assessment roll because the chancery clerk said that he had been in office only a few months and there were many records there and he did not know what they were, but under his personal supervision he did not see this particular assessment. He also stated that he was not positive as to the matters about which he was testifying; but, as to the assessment roll or its contents, there is not an allegation of the bill or any of the evidence that shows anything prejudicial to the lumber company.

No complaint is made in the bill as to the assessment, nor is any relief asked as against the assessment; but, on the contrary, the lumber company asks in its bill for affirmative relief based upon the validity of the assessment. It is, therefore, apparent that complainant did not ask for any relief as against the assessment, but the only relief prayed for was a temporary injunction against the collection of the ten cents per acre to pay the contested bond issue and that that injunction be made permanent for any levy in excess of three cents per acre.

The suggestion of error should be overruled.

Argued orally by L. T. Kennedy, for appellant, and L. A. Whittington, for appellee.

OPINION

MCGOWEN, J.

The appellant, the Norman-Breaux Lumber Company, filed its bill in the chancery court, praying an injunction against the tax collector of Adams county to prevent the collection of certain swamp land taxes of thirteen cents per acre, levied by the board of supervisors at the instance of the commissioners of the Homochitto swamp land district, contending that said levy was void, that a second bond issue for drainage purposes, before a precedent issue had been fully paid, was void and without authority. The maximum amount allowed to be taxed for this purpose under the law was fifty cents per acre, and the second bond issue for twenty thousand dollars required ten cents per acre as tax for the payment of the second bond issue; the total tax for both bond issues being thirteen cents per acre, as levied by the board of supervisors for all the purposes in anticipation of the taxes.

The main contention is that, although the order of the board recited jurisdictional facts, in truth and in fact the statutory majority had not signed the petition for the second bond issue...