Waits v. Black Bayou Drainage Dist

• Decision Date: 16 January 1939
• Docket Number: 33557
• Court: Mississippi Supreme Court
• Parties: WAITS v. BLACK BAYOU DRAINAGE DIST

185 So. 577

186 Miss. 270

WAITS v. BLACK BAYOU DRAINAGE DIST

No. 33557

Supreme Court of Mississippi, Division B

January 16, 1939

APPEAL from the chancery court of Washington county HON. J. L WILLIAMS, Chancellor.

Suit by the Black Bayou Drainage District against D H. Waits to recover drainage taxes assessed against the defendant's lands for the years 1931 to 1935, inclusive, and to enforce the lien given by statute for the payment of the taxes. From a degree for plaintiff, defendant appeals. Decree reversed and bill dismissed.

Reversed and bill dismissed.

Ernest Kellner, of Greenville, for appellant.

The trial court erred in holding that a tax lien existed in favor of the appellee against the land owned by the appellant for drainage taxes or assessments for the years 1931, 1932, 1933 1934 and 1935.

The lien asserted by the appellee is purely statutory and must have been created, if it exists, by a compliance with the provisions of the statute authorizing the creation of the lien asserted necessary to its creation. The appellee is a drainage district created under Chapter 195 of the Laws of 1912, and amendments, and was organized on September 4, 1916 so that it is controlled by Chapter 269 of the Laws of 1914 amending Chapter 195 of the Laws of 1912, the provisions of which are substantially unchanged in our present drainage laws. This court has held that a drainage district created under the foregoing laws is a public corporation created in invitum.

Stephens v. Beaver Dam Dr. Dist., 123 Miss. 884; Sevier Lake Dr. Dist. v. Kinney, 153 Miss. 440.

The general rule is that proceedings for special assessments, being in invitum, must, in order to charge the property of the owner, be based upon a strict compliance with the provisions of the statute authorizing the same.

25 R. C. L. 152; Lyon v. Alley, 130 U.S. 177, 9 S.Ct. 480.

The provisions of the statutes as to the form and mode of assessments, as to the tax lists, and the place where the tax lists are deposited, are designed for the benefit of the taxpayers and the protection of their property from sacrifice, and a failure to comply with those provisions is fatal to a valid assessment. As I understand this rule it is not that the failure to comply with those provisions of the statute must result in damage or injury to the taxpayers in order to invalidate the assessment but that the failure to comply with those provisions of the statute may result in damage or injury to the taxpayers and that, therefore, the failure so to do will invalidate the assessment even though damage or injury to the taxpayers does not result therefrom. That is, those provisions of the statute are for the benefit of the taxpayers and the protection of their property and unless complied with a valid assessment or lien is not created.

Reed v. Lbr. Co., 142 Miss. 756.

The compliance with the forms of law required in the assessment and imposition of state and county taxes is well settled in numerous decisions of this court and unless complied with will result in a void or dead assessment.

Hunter v. Bennett, 149 Miss. 368; Stovall v. Conner, 58 Miss. 138; Mitchum v. McInnis, 60 Miss. 945; Fletcher v. Trewalla, 60 Miss. 965; Carlisle v. Chrestman, 69 Miss. 392; Pearce v. Perkins, 70 Miss. 276; Brothers v. Beck, 75 Miss. 486; McGuire v. Union Inv. Co., 76 Miss. 868; Bennett v. Maxwell, 82 Miss. 70; Seals v. Perkins, 96 Miss. 704; Jones v. Belzoni Dr. Dist., 102 Miss. 796.

In support of the lien asserted by the appellee in this case and as a compliance with the provisions of the statute, the appellee relies upon the order of the board of supervisors of June 18, 1917, and the order of the board of supervisors of September 5, 1921. An examination of these orders discloses that the board of supervisors did exactly what this court said in the case of Jones v. Belzoni Drainage District, suprs, is beyond the power of the board of supervisors, in that, it undertook to add to and subtract from the provisions of the statute.

The statute is utterly silent on the question of interest, and the rule is that special assessments do not bear interest unless expressly provided by the statute authorizing such assessments.

9 R. C. L. 660; 25 R. C. L. 185; I. C. R. R. Co. v. Adams, 78 Miss. 895; Clark v. Pearman, 126 Miss. 327; White v. Lake Cormorant Dr. Dist., 130 Miss. 351; Bank v. Lake Cormorant Dr. Dist., 167 Miss. 364; Anderson v. McKee, 179 So. 858.

Under the foregoing authorities it is inescapable that the provision in the orders of the board of supervisors, which orders are relied upon by the appellee for the creation of the tax lien asserted against the land owned by the appellant, that the deferred drainage assessments thereby levied should bear interest at the rate of six per cent per annum, payable annually, was an addition to the provisions of the statute authorizing the creation of the tax lien asserted which invalidated the orders.

It is equally as inescapable that the failure to provide in the orders of the board of supervisors for the payment of all or any part of the deferred drainage assessments thereby levied at any time before the issuance of bonds by the district was a subtraction from the provisions of the statute authorizing the creation of the tax lien asserted which invalidated the orders.

The trial court erred in holding that said tax lien, if it existed, was revived and enforceable against the land after and by reason of the sale of the land to the appellant by the State for the years 1930 to 1934.

Chap. 303, Laws of 1926, Sec. 4488, Code of 1930; Sec. 6044, Code of 1930; Howie v. Panola-Quitman Dr. Dist., 168 Miss. 387; Carrier Lbr. & Mfg. Co. v. Quitman County, 156 Miss. 396.

I respectfully submit that the drainage assessments or taxes against the land now owned by the appellant for the years 1930, 1931 and 1932, were due and payable out of the purchase money paid for said land, and that the drainage assessments or taxes against said land for the years 1933 and 1934 did not accrue against the same.

The trial court erred in holding that said tax lien, if it existed and was revived and enforceable, bore interest as fixed by the decree of the trial court.

H. P. Farish and D. S. Strauss, both of Greenville, for appellee.

The Supreme Court of Mississippi has had occasion to deal with the question of the liability of land sold to the state for taxes during the time the title to the land was in the state, the land having been subsequently patented by the state. The court has harmonized the conflicting provisions in the various statutes with reference to the predominancy of an ad valorem sale over a benefit assessment, and in every case in which the question has been presented the court has harmonized the seeming conflict by holding that the provisions relative to the ad valorem tax and the provisions relative to the benefit assessment were of equal dignity and that a sale under one or the other of these taxes does not displace the lien of the other.

Carrier Lbr. Co. v. Quitman County, 156 Miss. 396; Seward v. City of Jackson, 165 Miss. 478; Howie v. Panola-Quitman Dr. Dist., 168 Miss. 387; Covington v. Meletio, 168 Miss. 497; Turley v. St. Francis County, 287 S.W. 196; Wyatt v. Beard, 15 S.W.2d 990; Hopper v. Chandler, 36 S.W.2d 398; Miller v. Watkins, 110 S.W.2d 531; 111 S.W.2d 466.

In the Carrier case, supra, our court held the statutes on taxation must be construed together and viewed as a whole, and that when land is sold together and viewed as a whole, and that when land is sold to the state for taxes the taxes of the subordinate agencies are in abeyance until the state disposes of the land, and it will be noted that the court states, while not passing upon the question, that any diminution or abatement of a tax theretofore levied would be in violation of Section 100 of the Constitution.

In levying the assessment of benefits and providing for a sale of the bonds against such benefits assessment provisions had to be made to secure the payment of the bonds issued under the drainage law. Security was effected through the use of the words that the drainage assessment should remain in effect against the land until the same had been paid. On the faith of this provision bonds were issued and sold, and on the faith of a proposed assessment to cover the payment of the bonds, the various land owners consented to the levy of the tax against their lands. Any diminution of the assessment would be a breach of faith with the purchasers of the bonds and would be a breach of faith with the other land owners in the district to the extent that the assessment against any particular land is abated or held unenforceable. It operates to cause the other lands in the district to pay a larger proportion of the tax in order to make up for the deficiency created by such abatement.

The statement was again made in the Howie case, 168 Miss. 387, that to abate an improvement lien might violate Section 100 of the Constitution. For this court to hold that the assessments maturing during the time title to the land was in the state is abated and cancelled would be to that extent a diminution of the tax and against the express provisions of the drainage act.

Carrier Lbr. & Mfg. Co. v. Quitman County, 156 Miss. 396; Seward v. City of Jackson, 165 Miss. 478; Howie v. Panola-Quitman Dr. Dist., 168 Miss. 387.

In the case of Covington v. Meletio, 168 Miss. 497, the court holds that the drainage assessments are merely suspended and are not abated or cancelled against the land even though it was purchased by the state and subsequently patented by the state to an individual.

It will be noted that as the cases arose the Supreme Court of this state has in each and every instance sustained the...