Smythe v. Whitehead

Decision Date15 October 1923
Docket Number23449
CourtMississippi Supreme Court
PartiesSMYTHE et al. v. WHITEHEAD

Division B

(Division B.) January 1, 1920

TAXATION. Notice to taxpayer that rolls on file and date of meeting of board to consider objections can only be given by assessor.

Under section 4303, Code of 1906 (section 6937, Hemingway's Code), requiring the tax assessor to publish notice in a newspaper in the county for the space of three weeks, giving notice that the rolls are on file and the date of the meeting of the board to consider objections, etc., the notice must be given by the assessor, and cannot be given by any one not authorized by law to give the same, and a notice by the clerk of the board is not a compliance therewith. Such notice is a part of the statutory scheme in lieu of personal summons, and must be strictly complied with. Cameron v Whitington, 120 Miss. 595, 82 So. 311, cited.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Attala county, HON. T. P. GUYTON Chancellor.

Suit by J. G. Smythe and others against Mrs. M. A. Whitehead. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Decree affirmed.

H. T Leonard, for appellants.

The opinion of the special chancellor holds, first, that the assessor did not file the assessment rolls within the time allowed by law, and, second, that no legal notice of the filing of the rolls was given as required by law. I. That the assessor did not file the assessment roll within the time required by law, we desire to submit the following: The complainants below proceeded under section 1983 of the Code of 1906, which is as follows: "A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima-facie evidence that the assessment and sale were legal and valid." We submit that the Prima-facie presumption of the statute is not overcome by the pretended order of the board dated August 7, 1915. The defendant utterly and wholly failed to show any irregularity to invalidate the tax deed relied upon. The best way they could have shown this would have been to introduce the rolls themselves. Morgan v. Blewitt, 72 Miss. 907; Grayson v. Richardson, 65 Miss. 222; Herndon v. Mayfield, 79 Miss. 533.

II. FILING ROLL OUT OF TIME. Section 4292, Code of 1906, section 6926 of Hemingway's Code, was ably construed by this court in the case of McGuire v. Union Investment Co., 76 Miss. 872. The learned chancellor in his opinion filed in this cause, cites: Brothers v. Beck, 75 Miss. 482; Bennett v. Maxwell, 82 Miss. 70; McGuire v. Union Co., 76 Miss. 960; Seals v. Perkins, 96 Miss. 704; McCord v. Shaw, 77 Miss. 900. We submit that the above authorities upon careful examination do not support the position taken in that they have no application to the case at bar and each and every one of them was decided on some other and collateral point for the holding of the assessments void.

III. NOTICE BY CLERK INSTEAD OF ASSESSOR. The chancellor also held that the notice was defective and as such invalidated the assessment. We are not able to find after extended search any authority touching upon this precise question, to-wit: the legality of the notice given by anyone except the assessor. Now, the purpose of the notice essentially is to notify property owners that the rolls are on file subject to inspection and to make their objections thereto, if any they have, in the manner provided by law. This idea predominates throughout the whole notice and would be no notice at all. If inadvertently, the name without such information contained in the notice, it of the clerk, and possibly by typographical error, is appended, it is still apparent that the notice of the filing of the rolls and that they are in the office subject to inspection, is the obvious feature of such notice. Doubtless not one small portion of the taxpayers really know who the assessor was, and were not in the slightest concerned, but it was of the utmost concern to them to know when the rolls were on file and when they could make their objections. The spirit and clear intention of the law is to advise them of the filing of the rolls and who would dispute the fact that they were fully advised by the publication of the foregoing notice? The duty of proper assessment is a double duty, as stated by Chief Justice MAYES in North v. Culpepper, 97 Miss. 737, "resting both upon the property owner and the assessor, and every opportunity is offered the property owner to see that a proper assessment is made, either by giving it in himself, or by making proper objections and corrections after the return of the assessment rolls, as provided by section 4296. Code of 1906. . . . Under this section we held . . . that where an assessment roll has been properly approved, the taxpayer is precluded from questioning its validity afterwards, and the effect of the approval is to render a final judgment against the tax-payer, unless subject to be reopened under section 4312."

IV. ORDER OF APPROVAL BY BOARD OF SUPERVISORS IS CONCLUSIVE. The decisions of this court as to the conclusive effect of the order of approval by the board of supervisors are numerous: Yazoo Investment Co. v. Suddoth, 70 Miss. 416; Yazoo Delta Lumber Company v. Eastland, 104 Miss. 553; North v. Culpepper, 97 Miss. 730, 53 So. 419; Adams v. Clerk, 80 Miss. 134.

The appellants confidently rely upon section 4332, Code of 1906, section 6966, Hemingway's Code. Nevin v. Bailey, 62 Miss. 433. The only authority cited by the learned special chancellor or in support of his finding that the notice was illegal and void is the case of Cameron v. Whittington & McHee, 120 Miss. 595, 82 So. 311, and we respectfully submit that an examination of that case shows that it is not at all in point; that the record discloses that there was an entire absence of any notice of any kind whatever and upon that feature the court held the assessment void. Everything could be ascertained from the publication of this notice that could possibly have been ascertained of any notice suggested by counsel or required by law. Darington v. Rose, 90 So. 632. There is nothing in the Constitution prohibiting curative statutes. Armstrong v. Allen; 16 Iowa 508, 5 A. L. R., 162. For the constitutional features of this case see section 79 of the Constitution of 1890; Virden v. Bowers, 55 Miss. 1; Quarles v. Hiern, 70 Miss. 891; Natchez v. Minor, 10 S. & M. 246; Wolfe v. Murphy, 60 Miss. 1; Long v. Stanley, 79 Miss. 298, 30 So. 823.

S. L. Dodd and O. A. Luckett, for appellee.

The conclusion is irresistible that the real assessment roll for 1915 of Attala county, Mississippi, was not filed within the extended time allowed by law and the order of the board. The assessor did not file the roll on the first Monday of August, 1915, but filed it on Saturday the 7th day of August, 1915, a day not recognized by law for filing of the roll. Morgan v. Blewitt, 72 Miss. 907, is not on all-fours with the instant case. Herndon v. Mayfield, 79 Miss. 533, cited by counsel, does not touch on the question involved in this case, but the only question in that case was that of the approval of the roll. This court in the case of McGuire v. Union Investment Company, 76 Miss. 868, in construing section 4292 of the Code of 1906, and section 3783, says: "If the board of supervisors can, in the face of the plain requirements of the statute, extend the time for the completion and return of his assessment by a delinquent or incapable assessor, until the first Monday in September, what will prevent its extending the time in like case to November or December? See Horne v. Green, 52 Miss. 452.

The board has no authority to extend the time beyond the first Monday of August. We contend that the assessor did not file the roll as he was required to do on the first Monday of August, and this is a vital error, and is not saved by section 79 of the Constitution or by section 4292 of the Code of 1906. Yazoo Delta Land Company v. Eastland, 104 Miss. 553, cited for appellant is not in point for in that case, there was an effort to impeach the order of the board approving the assessment roll, by parol evidence, as to the manner in which the land was assessed by the assessor, and the court properly held that the order could not be collaterally impeached. North v. Culpepper, 97 Miss. 730, merely holds that a valid assessment is essential to a valid tax sale. The only question involved was of the objection to the sale on the sole ground that a joint assessment was made of two different tracts of land owned by different persons. The owner of the eighty acre tract paid two-thirds of the taxes and the other forty acres was sold for the balance of the taxes. Yazoo Investment Co. v. Suddoth, 70 Miss. 416, referred to by counsel for appellant was one where the property in District No. 2 of Coahoma county was changed, the board then being in session in the first district of the county. But afterwards at a meeting of the board held in the second district, an order was entered approving the roll, which the court held legalized the roll. That question is not involved in this case. Adams, Revenue Agent, v. Clark, 80 Miss. 134, is also distinguishable. The prerequisites of a legal assessment, approval, and levy, make a valid judgment, and if anyone of these essential things are wanting, the sale is void. Nevin v. Bailey, 62 Miss. 433, is distinguishable.

This tax deed is void because the notice required to be given the owner of the land, after the assessor filed his roll, by section 4303, Code of 1906, was absolutely ignored by that officer, but the notice was given by the chancery clerk under section 4295 of the code of 1906. Cameron v Whittington, 82 So....

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