Tonnar v. Wade

• Decision Date: 18 March 1929
• Docket Number: 27685
• Court: Mississippi Supreme Court
• Parties: TONNAR v. WADE. [*]

121 So. 156

153 Miss. 722

TONNAR v. WADE. ^[*]

No. 27685

Supreme Court of Mississippi

March 18, 1929

Division B

Suggestion of Error overruled May 6, 1929.

APPEAL from circuit court of Issaquena county, HON. E. L. BRIEN Judge.

Election contest by L. T. Wade against B. J. Tonnar. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Montgomery & Montgomery, Brunini & Hirsch and Thames & Thames, for appellant.

It is the law of Mississippi that when a check is given for the payment of taxes, the taxes are not paid until the check is paid, and that the lien for taxes is a valid and subsisting lien, and continues until the actual money comes into the hands of the sheriff and tax collector. See 3 Cooley on Taxation (4 Ed.), 2486, par. 1252. In Houghton v. Boston, 159 Mass. 138, 34 N.E. 93, the court held that the statute of Massachusetts contemplates payment of taxes in money, and that if the collector, for the convenience of taxpayers or of himself receives checks, they are to be taken as a conditional payment, and if they are not paid, the claim for taxes is not satisfied and may still be enforced. See, also, Labrier v. Leedy, 230 P. 253. The question has been expressly decided in Mississippi in Moritz v. Nicholson, 141 Miss. 431, 106 So. 762. See Moore v. Auditor General, 122 Mich. 599, 81 N.W. 561.

The assessment of the lands to the "Estate of L. T. Wade, deceased," does not have any bearing on this case, and L. T. Wade, Jr., stands charged with the taxes upon his one-sixth interest in the lands, just as effectively as if the lands had been assessed to him individually upon the assessment roll. 3 Cooley on Taxation (4 Ed.), 2528, par. 1267; Davis v. Blumenberg, 107 Miss. 432, 65 So. 503; Hudson v. Gray, 58 Miss. 882; K. C. Lumber Co. et al. v. Morse, 119 Miss. 185, 80 So. 638.

As to whether or not a ballot does or does not contain marks of identification has been generally held to be a question of fact, that must be determined with regard to each particular ballot. It is conceded by all that if identification marks appear upon the ballot, the ballot is bad. If blots or other marks appear upon the ballot, by which it might subsequently be identified, then the elector is under the duty, under our statute, to surrender his ballot and obtain a new one. If he does not do this but proceeds to cast a ballot that is spoiled, then the ballot should not be counted, because its appearance is such that it might be subsequently identified. Oglesby v. Sigman, 58 Miss. 502; Kelly v. Kierskey, 79 Miss. 168, 30 So. 49. A curved mark over one branch of the cross was held to invalidate the ballot in Brown v. Queens County, 170 A.D. 476. 155 N.Y.S. 979. A half cross in voting squares was held to invalidate the ballot in Matter of Slevin, 179 A.D. 618, 167 N.Y.S. 72. A horizontal mark in the square opposite a candidates name, with three vertical marks extending downward from it was held not to be a cross, and to invalidate the ballot in Hodgson v. Knoblauch, 268 Ill. 315, 109 N.E. 338, Ann. Cas. 1917E. 653.

Percy & Percy and Farish & Bell, for appellee.

As to L. T. Wade's personal tax, covered by tax receipt No. 696, counsel state that Wade testified that he did not remember whether he paid by check or with cash, and that his bank statements would show. Wade testified, that he did not recall whether he paid by check or in cash; that he paid his individual personal tax to Mr. Birdsong; that he did not remember what checks he had given; that it might have been two checks for the same amount; but that he paid his taxes on the 1st day of February. Mr. Birdsong, the sheriff, testified that he did not know whether Wade paid them by check or in cash. The sheriff, as this court knows, is required to keep a duplicate of all tax receipts issued by him. The duplicate tax receipt was in evidence before the court and a copy thereof is contained in the record before this court. See Mullens v. Shaw, 77 Miss. 900; 22 C. J. 1083.

To bind property for taxation, it has to be set forth upon the assessment roll in the manner required by law and notice published, no matter in whose name that property may be listed on the assessment roll. The filing of the roll and the publication of the notice fixes a lien against the thing itself. But, notwithstanding the statute, unless the person's name appears upon the assessment roll opposite the description of the property which he owns, there is no personal liability because there never has been any notice served upon him to create a personal liability. The property is bound but the person is not, unless he is brought into court by having his name appear upon the assessment roll as the owner of that property. Unless this is done he has never received notice and, not having received notice, there can be no personal liability. Sec. 8213, Hem. Code 1927; 12 C. J. 1228. The assessment was made against the "estate of K. T. Wade" (the L. T. Wade named being the father of appellee here). The assessor was not authorized to put the assessment against the land of an estate. He was only authorized to assess it in the name of the owner, or, if the owner be unknown, then to "unknown." Assessments in the name of an estate, or against the heirs in blank, have been held time and time again to be absolutely void. 26 R. C. L. 363; 37 Cyc. 1006; 3 Cooley on Taxation (4 Ed.), 2238, par. 1106; See, also, sec. 1848, Hemingway's Code of 1927.

The ballots in question are legal. The legality of these ballots has been passed upon by three different tribunals created by the laws of this state for this particular purpose, to-wit: managers of the election, who counted them; the election commissioners, who canvassed the returns; and the circuit judge, who heard the contest. In each and every case these officials held these ballots did not contain distinguishing marks and were legal ballots and were counted. The principle announced by opposing counsel in their brief is not a correct statement of the general rule of law governing the marking of ballots. See 20 C. J. 163.

Argued orally by John Brunini and M. B. Montgomery, for appellant, and D. S. Strauss and H. P. Farish, for appellee.

OPINION

ANDERSON, J.

Appellee instituted this proceeding under section 4186, Code of 1906, section 8077, Hemingway's 1927 Code, in the circuit court of Issaquena county, to contest the election of appellant to the office of Mississippi levee commissioner for that county. There was an issue made up and tried, as provided by the statute, resulting in a directed verdict and judgment for the appellee. From that judgment, the appellant prosecutes this appeal.

The questions presented for decision are: Whether the court erred in denying the appellant's application for a continuance; whether appellee was a qualified elector; and whether the appellant or the appellee received a majority of the legal votes cast in the election.

On May 8, 1928, an election was held in Issaquena county under the provisions of chapter 12, Laws of 1928, for a commissioner of the Mississippi levee district, in which election appellant and appellee were candidates for the office. Less than two hundred votes were cast in the election. The returns from the election judges at the different voting precincts showed that appellee had received a majority of the votes cast. The county election commissioners met at the county seat and canvassed the returns, and declared that the appellant was elected by one vote, that the appellant received eighty-three votes, and the appellee eighty-two. Thereupon the appellee filed his petition, under the statute above referred to, to contest the election. There was a trial at the June term, 1928, of the circuit court of Issaquena county, resulting, as stated, in a verdict and judgment for appellee.

When the cause came on for hearing, appellant made an application to the court for a continuance upon the ground that a continuance of the cause was necessary in order to enable him to properly prepare his defense; the application was overruled, and appellant assigns and argues as error that action of the court.

The granting of a continuance of a cause rests in the sound discretion of the trial court, and, unless there has been a manifest abuse of that discretion, the cause will not be reversed upon the ground that a continuance has been refused. The party complaining of the action of the court in that respect must show that the refusal to continue denied him a substantial right; in other words, that the action of the court was harmful. We are of the opinion that the appellant has not met these requirements of the law. The completed record of the trial in this cause fails to show that, if the appellant had been granted a continuance, the result would probably have been different. As stated, there were less than two hundred votes cast in the election. The better part of two days was consumed in the trial. During the trial, the appellant had access to the ballot boxes and poll books used in the election, as well as the registration books. His defense appears to have been well planned and well conducted. There was nothing to show that delay in the trial would have developed any additional facts favorable to appellant's defense.

Under section 250 of the Constitution, only qualified electors, and no others, are eligible to public office. Section 241 of the Constitution prescribes the qualifications of an elector, and provides, among other things, that he must have paid "on or before the first 'day of February of the year in which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law, for the two preceding years," etc.

Appellant contends that, when the...