Opinion
No. 38800.
September 28, 1953.
1. Constitution — statutes regularly enacted not violative of — separate assessments — tax sales.
Where statute providing that each separate assessment as it appeared and was described on assessment roll should constitute one tract for the purpose of sale for taxes, appeared to have been regularly enacted, and had been approved by the Governor, statute would be accepted by courts as a valid legislative enactment and not violative of constitutional provisions notwithstanding certificate of Secretary of State showed his inability to locate in House and Senate Journals of Extraordinary Session at which statute was passed, any message from Governor relating to subject matter of the statute. Sec. 121, Const. 1890; Sec. 9923, Code 1942.
2. Taxation — tax sales — Legislature to provide manner and mode of.
The Legislature has the power to provide the mode and manner of tax sales. Sec. 121, Const. 1890; Sec. 9923, Code 1942.
3. Taxation — statutes — separate assessments — sale as unit of two separate noncontiguous tracts.
Statute providing that each separate assessment as it appeared on roll should constitute one tract for purpose of sale for taxes, notwithstanding fact that person who was owner thereof, or to whom it was assessed, was owner of or was assessed with other lands, authorized the sale, as a unit, of two separate parcels which were not contiguous, when they were assessed to the same owner. Sec. 121, Const. 1890; Sec. 9923, Code 1942.
4. Taxation — tax sales — determined by law in force at time of sale.
The validity of a tax sale must be determined by the law in force at time sale was made. Sec. 121, Const. 1890; Sec. 9923, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Wayne County; THOMAS Y. MINNIECE, Chancellor.
L. Barrett Jones, Jackson, Ben Stevens, Hattiesburg, and Matthew Harper, Jr., Assistant Attorney General, Jackson, for appellants.
I. The lower court erred in holding Chap. 69 of the Extraordinary Session of the Mississippi Legislature of 1938 unconstitutional and void. Sec. 121, Const. 1890; Sec. 9923, Code 1942; Sec. 3249, Code 1930 as amended by Sec. 28, Chap. 188, Laws 1934; Adams v. Noble, 103 Miss. 393, 60 So. 561; Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825; Hunt v. Wright, 70 Miss. 298, 11 So. 608; Field v. Clark, 143 U.S. 676, 12 S.Ct. 495, 36 L.Ed. 294; Columbus Greenville Ry. Co. v. Miller, State Tax Collector, 160 Miss. 383, 134 So. 847.
Buchanan Montgomery, Laurel, and E.C. Fishel, Hattiesburg, for appellees.
I. The legal presumption announced in the decisions relied upon by appellants should not be applied so as to destroy the safeguards provided for in Sec. 121, Const. 1890. Secs. 7, 8, Const. 1869; Journal of Constitutional Convention, pp. 34, 151, 152, 280, 281, 289, 296; Secs. 1, 2, 121, Const. 1890; State v. Skaggs, (Ala.), 46 So. 268, 271; McClurg v. Powell, 77 Miss. 543, 27 So. 927; Hunt v. Wright, 70 Miss. 298, 11 So. 608; Postal Telegraph Cable Co. v. Robertson, 116 Miss. 204, 76 So. 560; Riley v. Ammon, 143 Miss. 861, 108 So. 296; Columbus Greenville Ry. Co. v. Miller, 160 Miss. 383, 134 So. 847; Ex parte Wren, 63 Miss. 512; Witherspoon v. State, 138 Miss. 310, 103 So. 134.
II. Chap. 69 of the Laws of the Extraordinary Session of the Legislature of 1938 does not make legal a tax sale as a unit in the aggregate of two separate tracts or parcels of land which two parcels of land are not contiguous. Alexander v. Graves, 178 Miss. 583, 173 So. 417; Mills v. Barrett, 213 Miss. 171, 56 So.2d 485; Sec. 3249, Code 1930; Chap. 188, Laws 1934, Sec. 28; Cox v. Richerson, 186 Miss. 576, 191 So. 99; Carter v. Moore, 183 Miss. 112, 183 So. 512; Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563; Gregory v. Brogan, 74 Miss. 694, 21 So. 521; State, ex rel. Whall v. Saenger Amusement Theatres Corp., 190 Miss. 391, 200 So. 442, 446; Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449.
III. Sec. 28, Chap. 188, Laws 1934, bringing forward Sec. 3249, Code 1930, was the statute in effect at the time the proceedings for the tax sale in question were begun, and is the statute controlling the manner of tax sale, and not Chap. 69 of the Laws of the Extraordinary Session of the Legislature of 1938. Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392, 393; Price v. Harley, 142 Miss. 584, 107 So. 673; Everett v. Williamson, 163 Miss. 848, 143 So. 690; Capital State Bank v. Lewis, 64 Miss. 727, 2 So. 243; Opinions of Attorney General 1933-35, p. 59.
IV. The tax sale was void for the reason that separate and noncontiguous tracts of land were sold as a unit. Slush v. Patterson, 201 Miss. 113, 28 So.2d 738, 741; Morris v. Meyer, 87 Miss. 701, 40 So. 231; Speed v. McKnight, 76 Miss. 723, 25 So. 872; Hewes v. Seal, 80 Miss. 437, 32 So. 55.
This is the second appearance of this cause here. Beard v. Stanley, 205 Miss. 723, 39 So.2d 317. The substantial facts in connection with the origin of the litigation were fully set out in the opinion there rendered, and their repetition is obviously unnecessary. It is sufficient to say that the case held that, where the board of supervisors completed their equalization of assessments on July 27th and gave notice that protests would be heard on August 6th following, the requisite ten days notice was provided for, even though the regular August meeting of the board convened on August 3rd; and that tax sales, based on such finally approved assessments, were valid.
The cause was reversed. On remand, other parties intervened, and the appellees then plead and the proof showed that, at the tax sale on September 19, 1938, the lands, on which taxes had not been paid, were sold under each separate assessment on the rolls in accordance with Chapter 188, Laws of 1934, as amended by Chapter 69, Laws of the Extraordinary Session of 1938, Section 9923, Code of 1942. The applicable part thereof is as follows: "Each separate assessment as it appears and is described on the assessment roll shall constitute one tract for the purpose of sale for taxes, notwithstanding the fact that the person who is the owner thereof, or to whom it is assessed, is the owner of or is assessed with other lands, the whole of which constitute one entire tract but appears on the assessment roll in separate subdivisions."
The appellees contended, and the learned chancellor held, that Chapter 69, supra, is violative of Section 121, Constitution of 1890, because the Governor, in his proclamation to convene the Legislature in extraordinary session, did not mention this subject as one for consideration, nor did he, while the Legislature was in session, submit such subject in writing for consideration.
While the certificate of the Secretary of State showed the inability of that officer to locate in the House and Senate Journals of the extraordinary session any message from the Governor which related to this subject matter, the fact remains that, in all respects, the chapter appears to have been regularly enacted, and, in addition, it was approved by the Governor on August 20, 1938.
This Court has heretofore dealt with a like question. In the case of Adams v. Noble, 103 Miss. 393, 60 So. 561, it was contended that the legislative act in question was unconstitutional because at the special session of the Legislature when it was passed, it was neither submitted in writing by the Governor for consideration, nor did it fall within the other two categories as provided by Section 36, Article 4, Constitution of 1890, prior to the amendment thereof as provided by Chapter 414, Laws of 1912. In overruling that contention and in upholding the validity of the act, this Court said: "We specially note that the governor, who has the authority to submit to the legislature measures for their consideration and action, has approved this bill. The statute, as delivered by the legislature, appears to be a regularly enacted law, and following the prescribed mode, which included the attestation by the presiding officers of the two branches, the speaker of the house of representatives and the president of the senate, and we will accept it as such. The subject of the duty of the courts to accept as valid legislative enactments all acts duly authenticated and appearing regular, and to have been passed in the prescribed mode, is fully discussed in the cases of Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825, and Hunt v. Wright, 70 Miss. 298, 11 So. 608. See Field v. Clark, 143 U.S. 676, 12 Sup. Ct. 495, 36 L.Ed. 294." See also C G Railway Company v. Miller, 160 Miss. 383, 134 So. 847.
(Hn 1) The same reasoning requires the conclusion that Chapter 69 is not violative of Section 121 of the Constitution.
Appellees contend, however, that the chapter does not legalize the sale, as a unit, of two separate parcels which are not contiguous, and, on that account, the sales here involved were void.
It is true that, prior to the enactment of Chapter 69, supra, the tax collector could sell only the land constituting one tract and assessed as the property of the same owner. Section 28, Chapter 188, Laws of 1934. This Court had so held. Slush v. Patterson, 201 Miss. 113, 28 So.2d 738. But undoubtedly (Hn 2) the Legislature had the power to provide the mode and manner of tax sales, and to indicate clearly its will. (Hn 3) The chapter is clear and unambiguous. In the recent case of Horton v. Horton, 210 Miss. 116, 48 So.2d 850, it was held that several noncontiguous parcels of land may constitute a homestead. In such a case, in reason it would seem that the whole tract, constituting the homestead, ought to be embraced within the same assessment.
Appellees further contend that said chapter 69 did not govern for the reason that it did not become effective until August 20, 1938, whereas, in the meantime, the tax collector had already listed the lands for sale, and that his act, in so doing, constituted a part of the sale.
But this Court has held that (Hn 4) the validity of a tax sale must be determined by the law in force at the time the sale was made. Everett v. Williamson, 163 Miss. 848, 143 So. 690; Price v. Harley, 142 Miss. 584, 107 So. 673. Since the chapter in question was in force at the time of the sales here, obviously it governed, and such sales were effective to divest the appellees of all title which they held to the lands in question.
The decree of the lower court will, therefore, be reversed, and a decree will be entered here, cancelling and annulling all claims of the appellees in and to the lands in controversy.
As was pointed out on the former appeal, no opinion was expressed on the question raised in the State's answer that appellant, Lee Beard, had purchased more than 160 acres of public land in one year in alleged violation of Section 4108, Code of 1942, because that question was not passed upon by the trial court. The same situation obtains on this appeal. The Court did not deal with that matter on the trial under review. Consequently no opinion thereon is expressed here; but the cause will be remanded so that the lower court can pass on that question.
Reversed, and decree here in part, and in part remanded.
Roberds, P.J., and Arrington, Ethridge and Lotterhos, JJ., concur.