Nickey v. State , 167 Miss. 650 ( 1933 )

I adhere to my dissent rendered heretofore, and reported in 145 So. at page 634 et seq. In this case the proceeding in the chancery court was for both an attachment of the property and a personal judgment for the amount of taxes due thereon according to the assessment roll. The process was by publication to nonresidents, but the living defendants in the bill appeared and filed an answer, challenging the assessment, and denying personal liability. The property had been seized by the attachment proceedings, and the defendants gave a bond to have the attachment released, by which they bound themselves to pay whatever taxes the court should find to be due.

The giving of this bond, of course, subjected them to a personal liability, as they secured the benefit of having the property released from attachment. However, I cannot acquiesce in the doctrine that the original assessment constituted a personal liability against the defendants, enforceable by suit. There was no personal service upon any of the defendants in the assessment proceedings. And while there was a demand enforceable in the courts against the property itself, there was no liability upon the owners of the property, who were nonresidents, and had not been brought before the assessing board, nor had they appealed or otherwise appeared in the assessment proceedings.

In my judgment, the case of Bristol v. Washington County,177 U.S. 133, 20 S. Ct. 585, 44 L. Ed. 701, does not sustain personal liability against a nonresident for taxes, and does not change the rule announced in Dewey v. Des Moines, 173 U.S. 193, 19 S. Ct. 379, 43 L. Ed. 665. In the Bristol case the property owner had localized his business, having a resident agent to transact business for him. After the death of the property owner administration proceedings were had to collect demands in favor of the estate, and to have liability against the estate adjudged, and the estate in Minnesota administered. The demand of Washington county for taxes was a liability against the property in Minnesota, and was taxable there. The administration in Minnesota had the same effect to give the court jurisdiction as though the deceased had been living, and had appeared and sought personally to transact business in court.

The case of Collector of Taxes of Boston v. Rising Sun Street Lighting Co., 229 Mass. 498, 118 N.E. 871, cited in the majority opinion is likewise a case where the defendant corporation had localized its business in Massachusetts, where its property was situated, and was there assessed. There is quite a difference between a citizen merely owning property in a foreign state, and being subject to a personal liability for taxes without service of personal process.

The case of Greenbaum et al. v. Commonwealth of Kentucky,147 Ky. 450, 144 S.W. 45, Ann. Cas. 1913d 338, is likewise distinguishable from Dewey v. Des Moines, supra. In its opinion in this case the Kentucky court said, on page 456 of 147 Ky., 144 S.W. 48, Ann. Cas. 1913d 341: "The cases relied upon by appellant rest upon the governing fact that a nonresident is not to be liable personally where he had not appeared in any way in the initial proceedings taken to levy the assessment. Being a nonresident, and presumably ignorant of the steps taken by the foreign state, he has not had his day in court, and his liability is therefore limited to his property there taxed; but, where he takes part in the assessment, this presumption does not exist, and he stands in no better position than a resident."

In that case the Kentucky court held that the defendant took part in the assessment of the property. In other words, that he was present during the assessment proceedings, and participated therein. The interpretation, however, placed by the Kentucky court upon the case of Dewey v. Des Moines is contrary to the weight of authority, and, in my view, contrary to the holding in that case.

In a case note to Greenbaum v. Commonwealth, Ann. Cas. 1913D, p. 342, it is said:

"Most of the decisions on the question of the personal liability of a nonresident for taxes on resident property hold contrary to the reported case and support the proposition that no action can be brought to enforce a personal liability for taxes against a nonresident. Dewey v. Des Moines, 173 U.S. 193, 19 S. Ct. 379, 43 L. Ed. 665; Rising v. Granger, 1 Mass. 47; Dewey v. Stratford, 42 N.H. 282; Cocheco Mfg. Co. v. Strafford, 51 N.H. 471 (dicta); Bowles v. Clough, 55 N.H. 389; Winchester v. Stockwell, 75 N.H. 322, 74 A. 249; New York, etc., R. Co. v. Lyon, 16 Barb. (N.Y.) 651; New York v. McLean, 57 A.D. 601, 68 N.Y. Supp. 606, affirmed 170 N.Y. 374, 63 N.E. 380; New York v. Mason Au, etc., Confectionery Co., 64 Misc. 405, 119 N.Y. Supp. 472; Pendleton v. Com., 110 Va. 229, 65 S.E. 536; Berlin v. Grange, 5 U.C.C.P. 211. See also McLean v. Myers, 134 N.Y. 480, 32 N.E. 63; Cottle v. Cary, 61 A.D. 66, 70 N.Y. Supp. 129, affirmed 73 A.D. 54, 76 N.Y. Supp. 580; [Id.], 173 N.Y. 624,66 N.E. 1106; State v. Hodges, 14 Rich. L. (S.C.) 256."

I am, therefore, of opinion that the suggestion of error should be sustained.