Robertson v. First Nat. Bank of Greenwood

• Decision Date: 19 November 1917
• Docket Number: 19969
• Citation: 115 Miss. 840,76 So. 689
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, REVENUE AGENT, v. FIRST NATIONAL BANK OF GREENWOOD

76 So. 689

115 Miss. 840

ROBERTSON, REVENUE AGENT, v. FIRST NATIONAL BANK OF GREENWOOD

No. 19969

Supreme Court of Mississippi

November 19, 1917

APPEAL from the circuit court of Leflore county, HON. F. E. EVERETT JUDGE.

Suit by Stokes V. Robertson, revenue agent, against the First National Bank of Greenwood. From a, judgment for defendant plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed. Suggestion of error overruled.

Monroe McClurg, for appellant.

Recurring again to the counsel's most persistently urged point that, the failure of the minutes of the board of supervisors at their October meeting to include a copy of the five days' notice published for the purpose to hold that special meeting is fatal to recovery in this cause, the reply, is as above stated, that special meeting was merely incidental in a matter of mere procedure. No final judgment was rendered at that meeting. Appellee had appeared and contested at the September meeting and was charged by the Act of 1916, with knowledge that the action of the September meeting was not to be considered final and a dismissal of appellee from his diligence. The failure of that clerical omission in the recorded minutes would have been more important if the matter of assessing or valuing the appellee's property had originated there, or the final judgment been rendered there, in a direct controversy between the state's taxing officers and the appellee alone, or in some contractual matter between them as in the case of Rabb & Chichester v. Postal Tel. Co., 104 Miss. 165 and other cases cited by counsel. There was not a single jurisdictional act taken at that meeting of which the appellee could complain. No affirmative recital in the minutes would have helped or hurt the appellee other than what was done to its advantage.

To determine whether the process is sufficient, or even necessary the whole record must be examined; it is not enough to look to the return only; and the record as a whole will be given a sensible construction looking to the real ends of justice. See Allen v. Dicken, 63 Miss. 91, 93, especially on collateral attack of the judgment. See Brennan v. Strass, 85 Miss. 341, 344, and Swain v. Gilder, 61 Miss. 667, 670, as to what the rules are respecting affirmative showing of jurisdictional facts in the proceedings before courts of inferior jurisdiction.

Gwin & Mounger, for appellee.

The constitutional sufficiency of the notice under the Act of 1916, will be hereafter discussed. Here we submit that the question as to whether the notice required by that act is a sufficient compliance with the state and federal Constitution is immaterial. Regardless of the constitutionality or unconstitutionality of the law upon the point of notice and regardless of whether notice can be dispensed with altogether or not, it is, nevertheless, true that section 6 of the Act of 1916, requires that notice shall be given and specifically prescribes that the notice shall be given in one of two ways, and that the special meeting of the board of supervisors shall be held only "after giving five days' notice by posting at the courthouse or publishing in a newspaper of the county. "The third special plea herein expressly alleges that the notice was never given of the meeting, or of the intention of the board of supervisors to consider assessments, and the demurrer admits this to be a fact. The order of the board of supervisors and the subsequent proceedings based thereon are obviously void, even though the notice were not required by the Constitution and might have been dispensed with by the legislature. It was not dispensed with, but is required by the statute, and is a condition precedent to the power of the board of supervisors to act. The notice is jurisdictional. Leflore County v. Cannon, 81 Miss. 334, 33 So. 81; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Herrick v. Pascagoula St. Ry. & Power Co., 97 Miss. 637, 54 So. 660; Adams v. Bank, 103 Miss. 780, 60 So. 770; Henry v. Board of Supervisors of Sunflower County, 111 Miss. 434, 71 So. 742; Robb & Chichester v. Postal Telegraph Co., 104 Miss. 165. Suggestion of error, 104 Miss. 176, 61 So. 170-977.

It is unnecessary to dwell at length upon the failure of the record of the board of supervisors exhibited with the declaration herein and also exhibited with the special pleas to show the proper notice, since the plea alleges that no notice was ever given, and the appellant's demurrer and refusal to join issue or plead, followed by final judgment in the circuit court, admits and establishes the truth of this allegation and the invalidity of the assessment. However, it is perfectly obvious from the record why the able counsel for appellant should have declined to plead further and permitted judgment final to go against the appellant when his demurrer or motion was overruled. The minutes of the board of supervisors of the special meeting held on the 20th day of October, 1916, which are exhibited with the declaration, fail to show sufficiently the legal notice which, it is held in the Wheatley case, "the statute expressly provides for notice and which is required to be given for the benefit of the public generally."

It is apparent from an examination of this record of the board of supervisors that a traverse of the plea would have been wholly useless in this case. The board of supervisors, when equalizing matters of assessment, is a court of limited jurisdiction, and all of the jurisdictional facts must appear in the record and on the minutes of the board. The minutes must show a finding of all jurisdictional facts. In this instance, it is essential that the minutes should show that the notice was given at least five days before the meeting, and should show further the manner in which it was given, whether by posting at the courthouse or by publishing in a newspaper. The failure of the minutes to show this is fatal to the validity of any action taken by the board in reliance upon such alleged notice. Leflore County v. Cannon, 81 Miss. 334 33 So. 81; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Herrick v. Pascagoula St. Ry. & Power Co., 97 Miss. 637, 54 So. 660; Adams v. Bank, 103 Miss. 780, 60 So. 770; Henry v. Board of Supervisors of Sunflower County, 11 Miss. 434, 71 So. 742; Robb & Chichester v. Postal Telegraph Co., 104 Miss. 165; Suggestion of error, 104 Miss. 176, 61 So. 170, 977.

OPINION

SYKES, J.

This suit was brought in the circuit court of Leflore county by the state revenue agent against the appellee bank for the sum of $ 10,002.14, taxes claimed to be due the state, county and levee district for the year of 1916. To the declaration are made exhibits the various proceedings of the board of supervisors of Leflore county relating to these taxes. For an understanding of this opinion it is unnecessary for us to set out or consider all of the various steps taken in this matter. The board of supervisors was dissatisfied with the original assessment against the appellee bank and raised this assessment of its own motion, before any instructions were received by it from the state tax commission. After this was done, a communication was received by the board of supervisors from the above commission, instructing it to increase the assessment of "capital stock, surplus, and undivided profits of banks, less assessment of real estate, forty-two per cent." The board of supervisors, at a special meeting held in October, appointed a committee of five...