Opinion
March 28, 1949.
1. Taxation — assessments — notice to taxpayers upon completion of equalization at July meeting of board — jurisdiction.
When the board of supervisors has completed its equalization of the assessment rolls at its July meeting it must give public notice of that fact by newspaper publication and the giving of such a notice evidenced by the affirmative recital of that fact upon the minutes of the board is jurisdictional and without it the assessment is void.
2. Taxation — recitals in later order of board of supervisors that notices have been given as required by law — inferences.
The recital in the order of the board of supervisors made in November after the approval of the assessment rolls by the State Tax Commission to the effect that notice had been given taxpayers as required by law, is not sufficient as a recital that the required notice was given in July, although such an inference might be drawn therefrom. Jurisdictional facts in the proceedings of a board of supervisors must be made to appear affirmatively from the minutes, and are not to be supplied by inference.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Amite County, R.W. CUTRER, Chancellor.
Roach Jones, for appellant.
This case is controlled by either the case of Pettibone v. Wells, et al, 181 Miss. 425, 179 So. 336, or by the case of Federal Land Bank of New Orleans v. Cox, et al. 183 Miss. 250, 183 So. 482. It is the contention of the appellant that it is controlled by Pettibone v. Wells, et al; it is the contention of the appellees that it is controlled by Federal Land Bank of New Orleans v. Cox, et al.
The court will observe that at the July 1934 meeting of the Board of Supervisors of Amite County that the Board entered an order adjudicating that the Board had examined and equalized the assessment roll for the years 1934 and 1935 in the manner required by Sections 9786 and 9788 of the Code of 1942 and that the Board then directed that a notice be given to the taxpayers that said assessment roll had been examined and equalized and that any objection to said roll or any assessment therein contained should be made in writing and filed with the clerk of the Board on or before the first Monday of August, 1934. The order of the Board sets out the exact notice that it desired to be given to the taxpayers, and the order further directs that the notice be published in the "Southern Herald", a newspaper published at Liberty, Mississippi, and further, that the notice be posted at the courthouse of the County. At the November, 1934, meeting of the Board, the following order was passed: "The land and personal rolls of Amite County, Mississippi, for the fiscal year 1934-35, having been approved by the State Tax Commission of the State of Mississippi, and notice having been given to the taxpayers as required by law, and there being no protest or objections filed by the taxpayers of Amite County, or any of them, against the approval thereof, it is hereby ordered that said land and personal rolls of said County for the fiscal year 1934-35 be, and the same is hereby approved."
In the case of Pettibone v. Wells, et al, the Board at its August meeting entered an order setting out a notice to the taxpayers which was purportedly published in the proper newspaper and giving the dates on which the notice was purportedly published. In the order of the August meeting of the Board, however, there was no adjudication that proof of publication of the notice was on file with the Board; nevertheless, the Board at its August meeting proceeded to pass an order finally approving the assessment. The assessment was attacked in that case on the ground that the notice was insufficient to vest jurisdiction on the Board of Supervisors because the order did not specifically adjudicate that the proof of publication was on file at the August meeting, showing when and what notice was given and the publication and posting of the notice. The lower court in that case held that the assessment was valid, and on appeal the case was affirmed by this court, the court saying: "We think the recital of publication and posting of said order necessarily show that proof of publication was on file in accordance with the requirements of law. The recitals show publication, and the statute does not specifically require the order to recite the evidentiary facts showing that publication had been duly proven and filed by the publisher. The inference must be drawn that such was a fact, for the order does show that publication was made, and the Board must have had proof of publication before it in order to determine the facts recited in the order. . . .
"The publication of the notice is a jurisdictional fact while the proof of publication is an evidentiary fact showing the Board that its directions had been complied with.
"The Board found as a fact that the publication had been duly made; and it is the ultimate jurisdictional facts, as distinguished from the evidentiary facts, which are required to be recited in the order of the Board of Supervisors." See also People's Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192; Noxubee County v. Long, et al, 141 Miss. 72, 106 So. 83; Alvis v. Hicks, 150 Miss. 306, 116 So. 612; Martin v. Board of Supervisors, 181 Miss. 363, 178 So. 315.
It is the contention of the appellant that when the Board of Supervisors of Amite County at its July meeting passed the order reciting that it had examined and equalized the roll and directer that the notice be given to the taxpayers, setting out the name of the newspaper in which the notice should be published, and then later at its November meeting entered an order which specifically adjudicates that notice had been given to the taxpayers as required by law and that no protest or objection had been filed, that this amounts to an expressed adjudication that the proof of publication of the notice in the newspaper was then on file and before the Board. If the proof of publication of the notice was not before the Board, it would have been impossible for them to adjudicate that the notice had been given to the taxpayers as required by law. The only difference between this case and the case of Pettibone v. Wells, et al, supra, is that in the Pettibone case the order of the Board approving the assessment roll gives the name of the newspaper and the dates on which the notice was purportedly published; whereas, in this case, the order of the Board simply recites that notice had been given to the taxpayers as required by law. The recital of the name of the newspaper and the dates of the purported publication in the Pettibone case were of course only evidentiary facts, and this court has specifically held in the Pettibone case and in the case of Alvis v. Hicks, supra, that it is the ultimate jurisdictional facts which control and not the evidentiary facts.
The only difference between the case involved and the case of Alvis v. Hicks, supra, is that in the Hicks case the order recites that the assessment roll was approved after "giving ten days legal notice", whereas, in the case involved, the roll was approved after "notice having been given to the taxpayers as required by law".
It was the contention of the appellees in the court below that before the assessment rolls could be finally approved that the Board had to expressly adjudicate that the proof of publication showing notice to the taxpayers was on file with the Board. We respectfully submit that this contention on the part of the appellees in direct conflict with the holding of this court in the case of Pettibone v. Wells, et al, and the case of Alvis v. Hicks, supra.
It is true that the Bill of Complaint in this case alleges that the Board of Supervisors failed to give the notice to the taxpayers and further alleges "and there is no proof of publication in the files of the Board of Supervisors showing that said notice was given". However, the appellees attached to their Bill the order in full of the Board of Supervisors at its July meeting which sets out a notice to be given to the taxpayers, and they also attach as exhibit to their Bill the order of the November meeting of the Board which recites that notice was given to the taxpayers as required by law. There is, therefore, a conflict between the allegations of the pleading and the exhibits. The pleading alleges that the notice was not given; the exhibits show that it was. In such a situation, the exhibits, of course, control over the allegations of the pleading. North American Life Insurance Company v. Smith, et al, 178 Miss. 238, 172 So. 135; Pruitt, et al v. Dean, et al, 198 Miss. 71, 21 So.2d 300. Sections 1470 and 1285 of the Code of 1942.
The appellant therefore respectfully submits that the Bill of Complaint shows upon its face that the notice to the taxpayers was properly given by the Board, and, as the alleged failure to give said notice is the only ground relied upon by the appellees in their Bill in an effort to defeat the validity of the subsequent tax sale, that accordingly the appellant's demurrer to the Bill of Complaint was well taken and should have been sustained.
As stated above, the appellees in the court below, in the hearing on appellant's demurrer, relied upon the case of Federal Land Bank of New Orleans v. Cox, et al, supra. A careful reading of this case, however, would show that it does not control the case here presented, but that rather the case involved is controlled by the cases of Pettibone v. Wells, et al, and Alvis v. Hicks, supra. A careful study of the case of Federal Land Bank of New Orleans v. Cox, et al, supra, will show that the court was largely influenced by the testimony of the Deputy Clerk to the effect that he did not find proof of publication of the equalization notice on file and found nothing in the way of a record to show that one had ever been filed. This court in that case said: "It will be seen from the reading of the order of October 14 that nothing is said concerning publication of notice to the taxpayers, and proof thereof; it is entirely silent concerning what was done, and what was before the Board at that time."
This cannot be said of the case here presented for the reason that the exhibits to the Bill of Complaint clearly show what was done and what was before the Board at the time the Board entered its order at its November 1934 meeting. As stated above, the Board at said November 1934 meeting expressly adjudicated that notice had been given to the taxpayers of the County as required by law. This is an expressed adjudication that the notice to the taxpayers was published, as directed by it, and that said notice was before the Board when the order was enacted. We therefore repeat that in this case the record is not silent concerning what was done and what was before the Board at the time. Gordon Gordon, for appellees.
The order of approval of land and Personal Tax Rolls for the year 1934-1935 as entered in the Minutes of the Board of Supervisors at the November Term 1934 did not adjudicate that notice had been given to the taxpayers as required by law to appear at the August term 1934, as provided for by statute. The Minutes of the Board of Supervisors of the August term, 1934, was silent as to any notice having been given, and it was absolutely necessary that this notice have been given, and that the Minutes of the Board of Supervisors at the said August term 1934 to have shown that said notice had been given, and for the notice, itself, to have been in the files of the Board, so as to make said assessment roll for the year 1934-1935 valid and legal as had been decided by this court in many cases. See Rollins v. Ladner, 174 Miss. 611, 165 So. 427; State v. Wyoming Manufacturing Company, 138 Miss. 249; Sharp v. Smith, 180 Miss. 887, 178 So. 595; Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510; Henderson Molpus Company v. Gammill, 149 Miss. 576; Federal Land Bank v. Cox, 183 Miss. 250, 183 So. 482; Gordon v. Smith, 154 Miss. 787; Pettibone v. Wells, et al., 181 Miss. 425, 179 So. 336; Merchants' and Manufacturers' Bank v. State, 25 So.2d 585; Board of Supervisors v. Ottley, 146 Miss. 118; Aden v. Board, 142 Miss. 696; Smythe v. Whitehead, 133 Miss. 184; Monroe County v. Menger, 127 Miss. 702.
The appellant undertakes to claim that the order as entered at the November term 1934 made Exhibit "D" to the Bill of Complaint is sufficient to uphold the sale of land delinquent for the year 1934-1935, as an adjudication that notice had been given to the taxpayers to appear at the August term, 1934, as required by Section 9786, Code 1942, which was Section 3162, Code 1930. This court in passing upon this statute in the case of Gordon v. Smith, 154 Miss. 787, in which decision on page 796, adjudged: "In order for it to appear that the said assessment was according to law, it must appear on the Minutes, as a jurisdiction, and therefore as an indispensable requisite, that the statutory notice to taxpayers has been given. Whether it is necessary for anything further in reference to such assessment to appear on the minutes of the board, it is not here necessary to decide. The board of supervisors can only act by or through orders entered on its minutes. In the cases of Cameron v. Whittington McGhee, 120 Miss. 595, 82 So. 311; Robertson v. Bank, 115 Miss. 840, 76 So. 689, and Henderson-Molpus Co. v. Gammill, supra, it was held that the required statutory notice to taxpayers was a statutory substitute for personal summons, and that the giving of this notice in accordance with the provisions of the statute was necessary to confer on the Board of Supervisors jurisdiction to correct and equalize the roll. And since the giving of this notice to taxpayers is necessary to confer jurisdiction on the Board of Supervisors to perform any of the duties required of it by law to complete the assessment roll, this jurisdictional fact must appear on the minutes of the Board to give validity to any acts of the Board in reference to said rolls, and before it can be said that it appears that the assessment was made according to law, and thereby bring into operation this curative statute which, by its express terms, merely supplies the omission to enter on the Minutes of the Board a final order approving the roll. For the reasons herein indicated, the assessment upon which the tax collector's deed to T.L. Hogue was based was void, and therefore the decree of the court below cancelling this deed and the subsequent conveyance to the appellants will be affirmed." See also Henderson Molpus Co. v. Gammill, 149 Miss. 576, and the cases therein cited.
The appellant states in his brief that this case is either controlled by the case of Pettibone v. Wells, et al, 181 Miss. 425, 179 So. 336, or the case of the Federal Land Bank of New Orleans v. Cox, et al, 183 Miss. 250, 183 So. 482, and further says that this case is controlled by Pettibone v. Wells, et al, and not be the case of the Federal Land Bank of New Orleans v. Cox, et al, as contended by the appellee.
I can see no distinction or variance between the decision of the Supreme Court in the case of Pettibone v. Wells, et al, and that as rendered in the case of the Federal Land Bank of New Orleans v. Cox, et al. The two cases are not in conflict.
The only difference that I can see in the opinion of the Supreme Court as rendered in this case of Pettibone v. Wells, et al., and that as rendered in the case of the Federal Land Bank of New Orleans v. Cox, et al., is that the court held in the Pettibone v. Wells case that the notice had been given to the taxpayers to appear at the August term, 1930, as provided for by Section 3162, Code 1930, by the publication of the notice in a newspaper published in Lamar County, and this fact of the giving of the notice appeared in the Minutes of the Board of Supervisors of that county at the August term, 1930, and that this gave the Board of Supervisors of Lamar County jurisdiction of the taxpayers, and the assessment was valid, and the sale made thereunder was valid. In the case of the Federal Land Bank of New Orleans v. Cox, et al., the court held that since the Minutes of the Board of Supervisors of Amite County at the August term, 1930, did not show that notice had been given to the taxpayers of Amite County by publication in any newspaper published in Amite County, Mississippi, to appear at the said August term, 1930, to show cause why the assessment roll for the years, 1930-1931 should not be approved as equalized and by failure to give this notice to the Board of Supervisors of Amite County, Mississippi did not obtain jurisdiction of the taxpayers and that the assessment roll for said years was void, and the sale of the land involved in that suit was void and conveyed no title.
The order rendered by the Board of Supervisors of Amite County, as quoted above was a much stronger order than the one shown as Exhibit "D" to the Bill of Complaint, as entered at the November term, 1934, of the Board of Supervisors of Amite County, Mississippi as to the giving of the notice to the taxpayers, yet the notice as quoted in the Federal Land Bank v. Cox case was insufficient as it did not appear in the Minutes at the August term, 1930, nor in the files of the Board of Supervisors at said August meeting.
The order of November 5, 1934, upon which the appellant relies, does not itself adjudicate that the notice was given to the taxpayers of Amite County, Mississippi to appear at the August term, 1934, nor does it adjudicate how the notice was given, in other words, this order could be referred to any notice given to appear at any meeting of the Board of Supervisors of Amite County, Mississippi, at any time of that year. The court has held that this notice to the taxpayers is as a summons in court, which must be served upon the taxpayers by its publication, as required by the statute for the taxpayers appearance at the August term of the year in which the assessment rolls will be approved as equalized, and this service of the process must appear upon the minutes of the Board of Supervisors at the August term of the year in which they would finally approve the assessment rolls. The failure to give this notice, the court holds, renders the assessment rolls void and of no legal effect.
H.R. Johnston and others filed their bill of complaint alleging ownership, with proper deraignment of title, to certain lands in Amite County; that there was an attempted assessment of the lands for ad valorem taxes for the year 1934, but that said assessment was void in that, after the July 1934 meeting of the Board of Supervisors at which notice was directed, by order of the board, to be published to the taxpayers, as required by the statute, informing them that the equalization of the assessments had been completed and that the Board would, at its August meeting, hear objections to said assessments, no such notice was in fact published. The allegation of the bill is "That the said Board of Supervisors failed to give said notice to the taxpayers of Amite County, Mississippi, . . .". The bill alleges that at the August meeting the Board failed to enter an order on its minutes finding that such notice had, in fact, been given and published and that no such order was thereafter entered on the minutes of the Board. The only order, alleged by the bill to have been entered on the minutes of the Board, was entered at the November meeting and it reads as follows: "Order of Approval of Land and Personal Tax Rolls for 1934-1935. The Land and Personal Rolls of Amite County, Mississippi, for the fiscal year 1934-1935 having been approved by the State Tax Commission of the State of Mississippi and notice having been given as required by law, and there being no protest or objections filed by the taxpayers of Amite County or any of them against the approval thereof, it is hereby ordered that the said land and Personal Roll of said county for the fiscal year 1934-1935 be and the same is hereby approved." The bill alleges that the taxes for 1934 were not paid and the tax collector of the county sold said lands for the taxes due thereon, under the pretended assessment, on the third Monday of September 1935, and, there being no bidder therefor, same were struck off to the State of Mississippi; that on July 22, 1946 a forfeited tax land patent was issued, conveying said lands to M.M. Berryhill; that said patent is void and constitutes a cloud on complainants title and should be cancelled. The State of Mississippi was made a party defendant, and there was a prayer for cancellation of said patent, which was made an exhibit to the Bill.
There was an answer on the part of the State, an answer and cross bill by Berryhill, and answers to said cross bill. After obtaining leave of the court, Berryhill withdrew his answer and cross bill and filed a demurrer to the bill. There were two grounds of demurrer: (1) There is no equity on the face of the bill; and (2) The bill shows on its face that the tax sale was valid and that the patent vested title to the lands in Berryhill. There was a decree overruling the demurrer and allowing an interlocutory appeal to settle the principles of the case. Only Berryhill appeals.
(Hn 1) Section 3162, Code of 1930, Section 9786, Code 1942, which was in effect at the time the assessment herein was made, requires that the board of supervisors shall equalize the assessment rolls at its July meeting and shall complete such equalization at least ten days before the August meeting, and shall immediately, by newspaper publication, notify the public that such rolls so equalized are ready for inspection and examination. By an unbroken line of decisions, this Court has uniformly held that the giving of such notice is jurisdictional and is necessary in order to confer on the board of supervisors the jurisdiction to equalize and approve the assessment rolls, and the fact that such notice was given must affirmatively appear upon the minutes of the Board of Supervisors. Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Sharp v. Smith, 180 Miss. 887, 178 So. 595; Henderson Molpus Company v. Gammill, 149 Miss. 576, 115 So. 716; Federal Land Bank v. Cox, 183 Miss. 250, 183 So. 482; Gordon v. Smith, 154 Miss. 787, 122 So. 762; Pettibone v. Wells, 181 Miss. 425, 179 So. 336.
Appellant does not dispute this principle of law but urges that it has been complied with in that the order entered on the minutes of the November meeting of the board of supervisors affirmatively recites "Notice having been given to the taxpayers as required by law." Does this meet the requirement of the statute, Section 3162, Code 1930, Section 9786, Code 1942, requiring that the board of supervisors, on completing the equalization of the assessments at its July meeting, "shall immediately by newspaper publication notify the public that such rolls so equalized are ready for inspection and examination", and does it further meet the requirement laid down by the decisions of this Court, above enumerated, that the giving of such notice must affirmatively appear upon the minutes of the board of supervisors? We think not, for the reasons we shall now discuss.
After the giving of notice by publication, as required by Section 3162, Code 1930, Section 9786, Code 1942, as above discussed, then Section 3165, Code 1930, Section 9789, Code 1942, requires the board to hear objections to the assessments, if any are filed in response to the notice, at the August meeting of the board. Then Section 3175, Code 1930, Section 9799, Code 1942, provides that within ten days or after adjournment the board shall transmit to the State Tax Commission two copies of the recapitulation of the assessment, as equalized. Section 3177, Code 1930, Section 9801, Code 1942, then requires the State Tax Commission to equalize the assessments between the counties and direct what percentage, if any, shall be added to or taken from the assessment of one or more classes of property, and to mail a certified copy of its order to the President of the Board of Supervisors. If the order of the Tax Commission requires a percentage increase or decrease in the assessments on any class of property, Section 3178, Code 1930, Section 9802, Code 1942, requires that the taxpayers be given five days notice by publication specifying the class or classes of property to be increased or decreased, and notifying all taxpayers owning property affected by the order of the State Tax Commission that at said meeting the board of supervisors will carry out the orders of the Commission, and that any taxpayer aggrieved by the action of the board may present objections to any increase in the assessment of his property.
Now, bearing steadily in mind the foregoing steps in the statutory proceedings for the assessment of property for ad valorem taxes, and particularly the requirement of the publication of notice to the taxpayer that the rolls have been equalized and are ready for examination and inspection, before the sitting of the board to hear objections, and particularly bearing in mind the requirement of five days notice by publication to the taxpayers, after the roll has been received by the board of supervisors from the State Tax Commission, together with directions for a percentage increase or decrease in the assessment, does the order entered by the board of supervisors affirmatively show that notice was published that the rolls, at the July meeting had been equalized and were ready for examination and inspection? If it does not, the assessment is void. Let us look again to the order entered at the November meeting of the board of supervisors. It reads:
"Order of Approval of Land and Personal Tax Rolls for 1934-1935.
The Land and Personal Rolls of Amite County, Mississippi for the Fiscal Year 1934-1935 having been approved by the State Tax Commission of the State of Mississippi and notice having been given to the Taxpayers as required by law, and there being no protest or objections filed by the taxpayers of Amite County or any of them against the approval thereof, It is hereby ordered that the said land and Personal Roll of said County for the said fiscal year 1934-1935 be and the same is hereby approved."
This order does not show whether or not a percentage increase had been ordered by the State Tax Commission as provided by Section 9801, Code 1942, Section 3177, Code 1930, and consequently does not affirmatively show whether the recital with reference to notice to taxpayers refers to the notice required under Section 3162, Code 1930, Section 9786, Code 1942, or to the notice required under Section 3178, Code 1930, Section 9802, Code 1942. The order does recite that the roll had been approved by the State Tax Commission, and the reasonable inference, if any inference may be drawn at all, is that the reference to notice to taxpayers refers to the notice required by Section 3178, Code 1930, Section 9802, Code 1942, and does not refer to the notice required by Section 3162, Code 1930, Section 9786, Code 1942. (Hn 2) But, be that as it may, and without deciding what inferences could be drawn, we decline to draw any inference at all for the requirement of the law is that the giving of this notice under Section 3162, Code 1930, Section 9786, Code 1942, is jurisdictional in its nature and that it must appear not by inferences but affirmatively upon the minutes of the board of supervisors that it was, in fact, given. The order entered on the minutes of the board at its November meeting, and above set out, does not affirmatively so show. Too, the demurrer admits as true the positive allegation in the bill "That the said Board of Supervisors failed to give such notice to the taxpayers of Amite County, Mississippi, . . .". The facts in this case bear close similarity to the facts in Federal Land Bank v. Cox et al., 183 Miss. 250, 183 So. 482, and it is controlling upon us here.
We are reluctant to strike down an entire assessment roll in an entire county, but when faced with the clear duty to so do we will discharge that duty without hesitation.
The lower court was correct in overruling the demurrer to the original bill, and the decree of the lower court will be affirmed.
Affirmed and remanded.