Russell v. Mabry

• Decision Date: 21 January 1924
• Docket Number: 23800
• Citation: 134 Miss. 239,99 So. 2
• Court: Mississippi Supreme Court
• Parties: RUSSELL et al. v. MABRY, Tax Collector

99 So. 2

134 Miss. 239

RUSSELL et al. v. MABRY, Tax Collector

No. 23800

Supreme Court of Mississippi

January 21, 1924

Division A

Suggestion of Error Overruled March 3, 1924.

APPEAL from chancery court of Newton county, HON. G. C. TANN Chancellor.

Suit by Mrs. Kate Russell and another against W. C. Mabry, Tax Collector. From a decree sustaining a demurrer to the bill plaintiffs appeal. Reversed and remanded.

Decree reversed and cause remanded.

R. L Bullard, for appellants.

This was a proceeding by two complainants to enjoin the sale of their property for the collection of a tax. The proceeding is under authority of section 533, Code of 1906. It is alleged that the tax was unlawfully levied because the property owners had no notice, actual or constructive, and the proceeding is therefore to take their property without due process of law, in violation of section 14 of the state Constitution, and of the Fourteenth Amendment to the Federal Constitution.

The court sustained a demurrer to the bill and dismissed it, and rendered a decree against both complainants for the total tax held to be due from each, and the total damage upon the whole. An inspection of the petition and the notice will show that it is impossible to tell what was embraced within the proposed drainage district, or even to approximate it, and it was impossible for any landowner living in that part of Newton county to know that there was any probability that the board of supervisors would at any future term take any action that might result in a tax against his land.

The district was to "include all lands between the points hereinafter set forth on Potterchitto, Turkey, Bogue Falema and Tarlow Creeks to which benefit would accrue by a drainage canal."

The points set forth are as follows: "Beginning on Potterchitto Creek at N. O. M. and C. Railroad in section 23, township 6, north, range 11 east; on Turkey Creek where the Jones Branch empties into Turkey Creek in section 2, township 6, north, range 11 east; on Tarlow Creek at the point where Bethel Creek empties into Tarlow Creek in section 10, township 5, north, range 11 east; on Bogue Falema Creek at the range line, etc., and end where Potterchitto Creek empties into Chunkey Creek."

"The points" are definite enough, but where do we go from each point? We have four lines from those starting points extending down the thread of four streams to where the waters of all four of them are finally joined. That would describe four irregular lines but would not describe any region, territory, or district.

Finally it was not proposed that any definite territory was to be embraced in the district, but only such lands as would thereafterward be found to be those "to which benefit would accrue by a drainage canal." The original petition was insufficient under chapter 269, Acts of 1914.

In the formation of a drainage district the board of supervisors acts judicially, and is governed by the laws applicable to courts of special and limited jurisdiction. Its act in levying the tax is also governed by the same principles. The petition and notice are jurisdictional and if the petition, which the notice follows, is not sufficient to apprize the property owners that their property is embraced within the proposed district, the entire proceeding is void. It is necessary for the petition to contain in a general description all of the territory proposed to be embraced within the district, the description to be definite enough to enable a person owning property within it to know that his property was being dealt with in that way.

This being a proceeding in rem, constructive notice is sufficient, but it must be notice which within itself is sufficient to apprize the person of the fact that the tribunal is dealing with the right or property to be affected. For a proceeding in rem of this kind see Brown v. Levy Commissioners, 50 Miss. 480.

When a drainage district is to be formed by the judgment of the board of supervisors, the "thing," the region, the district is brought within the custody of the court by means of the petition. The published notice is the process, and if it is not sufficient to apprize the owners of property to be included and subjected to the burdens of taxation, it violates the Fourteenth Amendment, for it is a taking of property without due process of law. See Lent v. Tilson, 140 U.S. 318, 35 L.Ed. 419; Falbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 41 L.Ed. 369, and authorities cited.

The tax was levied without notice of any sort, and without any opportunity to be heard. After the expiration of four regular monthly meetings of the board, at which nothing was attempted, the temporary commissioners carried a petition before the board wherein they represented that they had borrowed large sums of money to pay themselves, their attorney, the surveyor, and other expenses that had been incurred by them, and for which they say they had pledged the lands in the proposed district, whatever that district was.

No notice had been given by the commissioners of their intent or purpose to file this petition; no notice was given of the pending of it when it was filed, but at the very time it was filed the board proceeded to levy an acreage tax against the lands arbitrarily selected by them, including the lands of appellants, amounting to 39 3/10 cents per acre. No notice was given of the fact that the tax had been levied, and the first notice that appellants had that the tax had been levied against their lands was contained in the advertisement informing them that it was the purpose of the tax collector of said county to sell their lands.

There can be no justification for the levy of the tax without any notice whatever to the landowners and without any possibility whatever for them to be heard. Authority in support of this proposition would hardly seem to be necessary, but the following are in point: 8 Cyc. 1108; Hegar v. Reclamation District, 111 U.S. 701, 28 L.Ed. 569; Paulsen v. Portland, 149 U.S. 30, 37 L.Ed. 673; Davis v. Davison, 96 U.S. 97, 24 L.Ed. 616.

Flowers & Brown, for appellee.

It is contended by complainants that the petition and order and notice were not sufficient in law to give the board of supervisors jurisdiction of the matter because it does not describe in specific and definite terms the exact land to be embraced in the district.

The record clearly shows that the petition did describe the lands as well as it was possible to describe them. We call attention to the fact that this petition, as stated in the bill, set out the exact starting point of the canal.

Section 1, chapter 269, Laws of 1914, provides: "That when ten per cent of the owners of real property within a proposed drainage district shall petition the board of...