Henderson Molpus Co. v. Gammill , 149 Miss. 576 ( 1928 )

^* Corpus Juris-Cyc. References: Taxation, 37Cyc, p. 1098, n. 96; p. 1107, n. 57; p. 1108, n. 60; p. 1493, n. 13; As to necessity of notice and opportunity to be heard as essential to valid assessment of property for taxation, see annotation in L.R.A. 1916E, 5; 26 R.C.L. 345; 4 R.C.L. Supp. 1662. The appellant, as owner of the record title to the land in controversy, filed its bill of complaint in the chancery court of Leake county, seeking to cancel a tax collector's deed, which was executed pursuant to a tax sale on April 2, 1923, and purports to convey said land to the appellee; and, from a decree denying the relief prayed for and dismissing the bill, this appeal was prosecuted.

The bill of complaint attacked the validity of the said tax collector's deed upon two grounds; namely,

"(1) That the alleged tax sale was made by the tax collector pursuant to an assessment of the lands of Leake county, made in 1921, and that the record of the proceedings of the board of supervisors, in the matter of the equalization and approval of the land assessment roll of the county for 1921, does not show the publication of the notices required by section 6937, Hemingway's Code of 1917, or by section 5, chapter 323, of the Laws of 1920. That therefore there is no competent evidence to show that the board of supervisors ever acquired jurisdiction of the taxpayers of the county for the purpose of equalizing and approving the assessment roll, and hence there was no valid or lawful assessment of the lands of the county, and the tax sale held pursuant thereto was void.

"(2) That, even conceding the tax sale to have been valid, yet the fact that the appellee immediately thereafter, in the year 1923, caused the land to be assessed to himself, was such an unlawful and fraudulent interference by him with appellant's rights, and with the orderly processes of the law relating to sales of land for taxes, as to preclude and estop him from claiming the land under said tax collector's deed."

By an agreed statement of facts, which appears in the record, it is admitted that the appellant was the owner in fee simple of the land in controversy at the time of the tax sale on April 2, 1923, and that it had never conveyed its title to any one; that the land was delinquent for the taxes claimed to be due for the year 1922; that a tax sale of the said land was made by the sheriff and tax collector on the 2d day of April, 1923, and a tax collector's deed was duly filed for redemption, as required by law, but the land was never redeemed from said tax sale; and that, after the expiration of the period for redemption, the deed was delivered to the purchaser, Stewart Gammill, trustee, and was duly filed for record in the office of the chancery clerk of the county.

It was further agreed that the said tax sale was made pursuant to an assessment of the lands in Leake county, made in the year 1921; that the only orders of the board of supervisors of Leake county which were made touching the approval of the land assessment roll of 1921 were as contained in Exhibits B, C, and D to the bill of complaint; that, after his purchase of the land at the tax sale on April 2, 1923, Stewart Gammill, trustee, caused the said land to be assessed to himself on the land assessment roll of Leake county for the year 1923, and caused the same to remain so assessed since that time; that no affidavit of publication of any notice to taxpayers by the assessor of Leake county, nor by the board of supervisors, nor by the clerk of such board, touching the filing of the assessment roll of 1921, or giving notice to the said taxpayers that the said roll was on file and open to public inspection, and to file objections to the said assessment, was ever made up or filed with the clerk of the said board of supervisors, or with any member thereof; that no affidavit of the printer or publisher of any newspapers, or by any one else, that such publication had been made, was before the board of supervisors at the time the orders, Exhibits C and D to the bill of complaint, were made by said board.

It was further admitted that, in fact, the notice to the taxpayers of the county of the filing of the assessment roll was duly made by the tax assessor for the year 1921, by proper publication in a newspaper published in the county; that said notice of the assessor appeared in the copies of said newspaper that were filed and kept in a bound volume in the office of the chancery clerk, as required by statute; that subsequent to the order of the board of supervisors, passed on July 21, 1921, which order is identified as Exhibit B to the complaint, and pursuant to such order, the clerk of the board of supervisors published a notice to the taxpayers of Leake county, the said notice appearing in a newspaper published in the county on July 21 and July 28, 1921.

It was further admitted that the taxes claimed to be due on said land were unpaid for the year 1922 at the time of said tax sale; that said land was at the time of said sale assessed to Dr. W.P. Edwards, who had no legal title thereto; that the said Dr. Edwards had become the purchaser of said land at a former tax sale, but it was properly redeemed from said sale by the appellant; and that appellee has paid all taxes on said land since its purchase at the tax sale.

It was further agreed and stipulated, however, that all of said admissions were made by the complainant — "as mere admissions of the facts stated, without admitting that they are competent to show the jurisdiction of the board of supervisors to enter an order approving the assessment roll of 1921 or competent to show that proper and lawful notices were ever given to the taxpayers of Leake county, Miss., touching the approval of said roll, and that said roll was open to public inspection and filing of objections thereto, or to show that the board of supervisors had acquired jurisdiction of the taxpayers of said county in the matter of the approval of said assessment roll; it being the intention of this agreement and admission by both parties to agree upon the facts but to reserve the questions as to the competency of such facts as competent evidence for the decision of the court."

The order to the board of supervisors, which was passed at the July, 1921, session, and is filed as Exhibit B to the bill of complaint, is as follows:

"The board of supervisors, having examined the rolls filed by T.H. Brooks, the assessor of said county, of assessments, as of the 1st day of February, 1921, of real and personal property in said county, and having made such changes and corrections in said rolls as were found necessary to fix the assessments of real and personal property to its owners and at its actual value so as to establish an equality and uniformity of taxation among the taxpayers of said county, according to the value of their property, does hereby approve the said assessment rolls as so fixed; and it is further ordered that the following notice be posted in the courthouse and be published in the Carthaginian, a newspaper published at Carthage, Miss., and having a circulation in said county, to-wit:

"`To the Taxpayers of Leake County, State of Mississippi: "`You will please take notice that the assessments of real and personal property on the rolls for 1921 have been changed and corrected by this board so as to comply with the laws of this state, and that said revised rolls are now open for examination, and that any objections to any assessments contained in said revised rolls must be made in writing and filed with the clerk of this board on or before the first Monday of August, 1921, at his office in the town of Carthage, Miss., said county, and that any or all assessments to which no objection is then and there made will be made final.'"

The order passed at the August, 1921, meeting of the board, which is filed as Exhibit C to the bill of complaint, reads as follows:

"The board of supervisors met in the chancery clerk's office, in the town of Carthage, Miss., said county, on the 1st day of August, 1921, being the first Monday of August, 1921, and it continuing in session from day to day, hearing objections to assessments, taking testimony of witnesses, and examining books, records, and papers with reference to the assessments of property. It made such changes in the assessments (as fixed by it on the rolls, at its July, 1921, meeting) that it was satisfied should be made to fix the assessments of property at its actual value so as to establish an equality and uniformity of taxation according to value among the taxpayers of said county. Now, being satisfied that said assessment rolls contain assessments fair, equal, uniform, and just, according to the value of the real and personal property therein described, it is therefore hereby ordered that the said rolls and assessments therein now contained be and they are hereby accepted, approved, and made final and the final recapitulations of said assessment rolls be certified to the state tax commission on the blanks furnished by it."

It will be noted that the order, Exhibit C, passed at the August meeting of the board, does not recite that the notice to the taxpayers that such roll so equalized was ready and open for inspection and examination, as required by section 5, chapter 323, Laws of 1920, had been published or given; and the exact contention of appellant, as stated by counsel, is:

"That, in equalizing and approving assessments of property and hearing objection thereto, the board of supervisors exercised a special and limited statutory jurisdiction. That since, by section 5 of chapter 323 of the Laws of 1920, the board of supervisors was required to notify the public that the rolls so equalized were ready and open for inspection and examination, it had no authority to proceed to examine, equalize, or approve the rolls, without first having made the publication required. That the only competent evidence of the publication of such a notice is the record of the proceedings of the board of supervisors, as shown by its minutes; and, since the minutes of the board failed to recite or adjudicate that such notice was given, and since no proof of publication of such notice was ever made up or filed, then there is no competent evidence that any such notice was ever given or published, and hence no evidence that the board ever acquired jurisdiction of the taxpayers of the county in the matter of equalizing the assessments, hearing objections thereto and approving the assessment roll, and therefore the assessment was wholly void."

That, in equalizing assessments and approving assessment rolls, the board of supervisors acts as a court of special and limited jurisdiction is too well settled in this state to require the citation of authority, and counsel for appellee do not contest that proposition. It is equally well settled that, in order to render the acts of a court of special and limited jurisdiction valid, it is necessary that all jurisdictional facts appear of record, and it is not permissible to show the existence of such jurisdictional facts by evidence aliunde the record. In the case at bar, the fact that notice had been given to the taxpayers that the assessment rolls had been equalized and were ready and open to examination and objections, as required by section 5, chapter 323, Laws of 1920, does not appear on the face of the orders of the supervisors, or otherwise from the record of the proceedings to equalize and approve the assessments, and it therefore appears that the first, and in fact the decisive, question is whether or not the giving of such notice to taxpayers is necessary to confer jurisdiction on the board to correct, equalize, and approve the rolls.

In the case of State v. Wyoming Manufacturing Co.,138 Miss. 249, 103 So. 11, the court held that the notice required by section 5, chapter 323, Laws of 1920, and the notice required by section 4303, Code 1906 (section 8225, Hemingway's 1927 Code), were provided for exactly the same purpose; and that consequently section 5, chapter 323, Laws of 1920, being the later act, supersedes section 4303, Code 1906 (section 8225, Hemingway's 1927 Code), in so far as the notice required thereby is concerned. Before the enactment of chapter 323, Laws of 1920, however, the necessity of giving the notice required by section 4303, Code 1906, and the effect of a failure to give this notice, were considered by this court in the case of Cameron v. Whittington, 120 Miss. 595, 82 So. 311; and what was there said with reference to the notice applies with equal force to the notice required by section 5 of said chapter 323, Laws of 1920, which superseded and was intended to accomplish the same purpose as section 4303, Code 1906 (section 8225, Hemingway's 1927 Code). In the Cameron v. WhittingtonCase, supra, in discussing the question, the court held that:

"The notices required by section 4303 form a part of a statutory substitute for personal summons, and under the state and federal Constitutions notice must be given the taxpayer and opportunity to be heard before the assessment can become final and binding."

And it was further held that:

"Where the law fixes a definite time and place for a person to appear, with opportunity to be heard, and provides that this notice shall be sufficient, it has been held this would constitute due process of law; but, where the statute prescribes other and additional notice to be given, such notice must be given in accordance with the statute."

In the case of Robertson v. Bank, 115 Miss. 840, 76 So. 689, in discussing the effect of the failure of the board of supervisors to give the notice required by section 6, chapter 98, Laws of 1916 (section 9350, Hemingway's 1927 Code), before making changes or corrections in the rolls, in compliance with an order of the state tax commission so to do, the court said:

"This notice is the due process of law which brings the individual taxpayers into court and renders the decision of the board of supervisors binding upon them. Unless this notice be given in accordance with section 6 of the State Tax Commission Act, the board of supervisors is without jurisdiction to equalize these taxes. The order of the board of supervisors at this special October meeting, which is above quoted, affirmatively shows that this notice was not given. Having failed to give this notice, the board was without jurisdiction to raise the assessment of this appellee. . . .

"It is too well settled in this state for us to cite authorities, that, in this instance, the board was acting as a court of limited jurisdiction, and that all of the jurisdictional facts must appear upon the minutes of the board to render its proceedings valid.

"From the above it follows that the failure of the board of supervisors to give the five days' notice, as required by section 6 of the state tax commission statute (chapter 98, Laws of 1916), prevented them from acquiring jurisdiction of the appellee, and rendered their orders and proceedings upon which they attempted to raise this assessment absolutely void."

The ruling of the court in the above-mentioned cases upon the question of the necessity of notice to the taxpayers appears to be decisive of the question now under consideration, and these cases lead to the conclusion that the giving of the notice required by section 5, chapter 323, Laws of 1920, is necessary to confer jurisdiction upon the board of supervisors to equalize and approve the assessment rolls. And, since the notice to the taxpayers is necessary to confer jurisdiction upon the board of supervisors, the fact that such notice was given must affirmatively appear of record in the proceedings to equalize and approve the rolls, as it is established by a long line of decisions of this court that, where a court exercises a special, limited, statutory jurisdiction, nothing is presumed in aid of its jurisdiction, but the record of its proceedings must affirmatively show the existence of every jurisdictional fact necessary to authorize it to act; otherwise its proceedings and judgments are void. Board ofSupervisors v. Ottley, 146 Miss. 118, 112 So. 466; Aden v.Board of Supervisors, 142 Miss. 696, 107 So. 753; Smythe v.Whitehead, 133 Miss. 184, 97 So. 529; Monroe County v.Minga, 127 Miss. 702, 90 So. 443; Robertson v. Bank,115 Miss. 840, 76 So. 689; Henry v. Board of Supervisors,111 Miss. 434, 71 So. 742; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170, 977; Adams v. Bank, 103 Miss. 744, 60 So. 770;Hinton v. Perry County, 84 Miss. 536, 36 So. 565; BolivarCounty v. Coleman, 71 Miss. 836, 15 So. 107; Marks v.McElroy, 67 Miss. 545, 7 So. 408.

It is not necessary to here decide whether the fact that such notice was given must appear on the minutes of the board of supervisors, for the reason that, in the case at bar, the fact that such notice was given does not appear on the face of the orders of the board or otherwise of record. It is shown by evidence, and admissions of fact aliunde the record that such notice was, in fact, given, but this can give no validity to the orders of the board which were void for the reason that this necessary jurisdictional fact does not appear of record in the proceedings to equalize and approve the assessment. It is contended by counsel that it was competent to show that such a notice appears in the copies of a newspaper that are filed in the office of the chancery clerk of the county, pursuant to the requirements of section 531, Code 1906 (section 300, Hemingway's 1927 Code). This section requires the clerk of the chancery court to subscribe for such of the newspapers published in the county as the court or chancellor may direct, not exceeding two, and to file and preserve the same in his office, but this file of newspapers in the chancery clerk's office is in no sense any part of the record of the proceedings of the board of supervisors in equalizing and approving assessments. The jurisdictional facts must appear from the record of the proceedings in the particular matter or cause, and it is not sufficient that proof aliunde the record is available by which the existence of the jurisdictional facts may be established.

For the reason that the record of the proceedings of the board of supervisors in equalizing and approving the assessment upon which the tax sale was based does not show facts necessary to confer jurisdiction upon the board to approve the assessment roll, the decree of the court below will be reversed, and the cause remanded, for a decree by the court below canceling the tax collector's deed, and for an accounting as to the taxes paid by appellee.

Reversed and remanded.