Summary
In Mississippi C.R. Co. v. Hattiesburg, 163 Miss. 311, 141. So. 897, the court construed a statute authorizing the refund of taxes erroneously paid, whether paid under protest or not. The law was held not to permit recovery of taxes erroneously paid before the law became effective because the statute was construed to be prospective and not retrospective, it being stated that statutes will be given a prospective operation unless a contrary intention is shown.
Summary of this case from Murray v. MutschelknausOpinion
No. 30052.
May 23, 1932.
1. TAXATION.
Protest at time of paying taxes was necessary to enable party to recover taxes erroneously paid.
2. TAXATION.
Statute authorizing refund of taxes erroneously paid, whether paid under protest or not, contemplated prospective operation (Laws 1926, chapter 196).
3. STATUTES.
Statutes will be given prospective operation unless contrary intention is shown.
4. STATUTES.
Statute should not be given effect which imposes additional burden on past transactions, unless that plainly appears to be legislature's intention.
5. TAXATION.
Statute authorizing refund of taxes erroneously paid, whether paid under protest or not, creates right, and not mere remedy (Laws 1926, chapter 196).
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Hannah Simrall, of Hattiesburg, for appellant.
The illegality of the action of the State Tax Commission in attempting to assess the appellant's property in the City of Hattiesburg at a forty per cent higher valuation for municipal taxation than for state and county taxation for the years 1922 and 1923 was adjudicated by this court in the case of the City of Hattiesburg v. New Orleans and Northeastern Railroad Company, 141 Miss. 497, 106 So. 749.
This record does not present the question of the taxing authorities having the right and authority under the law to make the assessments complained of and of the taxing authorities having made assessments that were illegal on account of their failure to do what the law required they should do. On the contrary, it presents the question of the taxing authorities having acted in direct conflict with both the statutes enacted by the Legislature and the Constitution of the State.
Being entirely void from their beginning, the assessments here complained of amounted to nothing more than scraps of paper. As far as collecting the taxes from the appellant, under the authority of these assessments, goes, the City of Hattiesburg might as well have been acting upon the authority of blank pieces of paper. The maxim of the law that a judgment of any court void because of the lack of jurisdiction of the court over the subject matter can confer no rights upon any party is too well settled to require the citation of authorities to support it.
It has been the settled law of our state ever since it has been in existence that property must be assessed at its true value. Both the State Tax Commission and the City of Hattiesburg are bound to have known that such was the law and they are both bound to have known that the assessment was void. No good reason could exist for requiring the taxpayer to point out to the City of Hattiesburg that the assessment was void, when in truth and in fact no assessment existed.
Leonard v. City of Canton, 35 Miss. 189.
In this case the City of Hattiesburg stands exactly in the shoes of the State Tax Commission and it has no more right to collect and retain the money than the State Tax Commission had to make the assessments.
Tuttle v. Everett, 51 Miss. 27.
The distinguished city attorney took the dogmatic position in the court below, and the learned circuit judge adopted his view, that payment under protest was an essential prerequisite to the right of the recovery in every case. As we have pointed out, this view is not in accord with reason and logic or with the authorities.
In enacting chapter 273, Laws of 1926, the Legislature must have been actuated by a desire to make the tax laws with reference to the refund of erroneously and illegally collected taxes more just and equitable.
The act of the Legislature just referred to is one declaratory of the public policy of the State of Mississippi. It is in conformity with the rule that the taxing power must be most strongly construed against the taxing authorities.
In the case at bar the appellant followed this statute exactly. It presented its claims to the City of Hattiesburg and sought a refund of the amount due it. The City of Hattiesburg wrongfully denied its claim and the appellant then had the right to elect whether or not it would appeal from the order or bring a plenary suit.
Pearl River County v. Lacey Lumber Company, 128 Miss. 885, 91 So. 572.
Under the allegation that the sums of money were paid by the appellant to the city and received by the city from the appellant under a mutual mistake of fact, the appellant is likewise entitled to recover.
Bessler Movable Stairway Company v. Bank of Leakesville, 140 Miss. 537, 106 So. 445; Bank of Belmont v. Judson Lumber Company, 143 Miss. 86, 108 So. 440.
R.W. Heidelberg, of Hattiesburg, for appellee.
Payment under protest is necessary.
City of Vicksburg v. Butler, 56 Miss. 72; Town of Tupelo v. Beard Holditch, 56 Miss. 532; Jackson v. Newman, 59 Miss. 385; Town of Wesson v. T.C. Collins, 72 Miss. 844; Pearl River County v. Lacey Lumber Co., 86 So. 755, 124 Miss. 85.
Where the tax is utterly void, as stated in the case of Pearl River County v. Lacey Lumber Company, supra, a general protest is sufficient, but still a protest is required.
Union Land Timber Co. v. Pearl River County, 106 So. 277, 141 Miss. 131.
It is the settled law of this state that, in the absence of a statute providing otherwise, taxes or license fees voluntarily paid without protest cannot be recovered, although assessed and collected without legal authority.
Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Lamborn v. Dickinson, County Commissioner, 7 Otto. 181-188, 24 L.Ed. 926; Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 534.
Chapter 273, Laws of 1926 is not applicable.
Chapter 273 of the Laws of 1926 was enacted years after the payment of the tax involved in this case.
The mere fact that it is charged in the declaration that plaintiff filed a claim with the governing authorities of the municipality for the allowance to be allowed by it does not cause this case to be a proceeding under chapter 273 of the Laws of 1926.
Chapter 273 of the Laws of 1926 is not retroactive.
It is a familiar rule of statutory construction that retroactive operation shall not be given to a statute, unless it be the manifest intention of the Legislature that it should have that effect. Before a statute will be given such retroactive effect, there must be a plain declaration therein that it is so to operate.
Pan-American Petroleum Corporation v. Miller, 122 So. 393; Eastin v. Vandorn, Walk. 214; Gayden v. Bates, Walk. 209; Brown v. Wilcox, 14 Smedes M. 127; First Decennial Digest, Statutes, Section 263; Hooker v. Hooker, 10 Smedes M. 599; Stewart v. Davidson, 10 Smedes M. 351; Garrett v. Beaumont, 24 Miss. 377.
The courts will not give a statute a retroactive operation, unless the intention of the Legislature to that effect be plain and clear.
Carson v. Carson, 40 Miss. 349.
The only other contention made by appellant is that the fourth count of the declaration is based upon the payment having been made by mistake. The facts charged in the fourth count of the declaration show that the mistake consisted of a mistake of law and not of fact.
What mistake of fact there was is not averred in the declaration, which, of course, would be necessary if the mistake of fact was relied upon.
It is fundamental that payments made under mistake of law cannot be recovered.
Mistake, in order to be a ground of recovery, must be a mistake of fact and not of law.
Lamborn v. Dickinson County Commissioners, 24 L.Ed. 926.
Money paid with full knowledge of the facts but through ignorance of law may not be recovered back. The maxim, ignorantia juris neminem excusat, applies.
Graham-McNeil Co. v. Scarbrough, 99 So. 502, 135 Miss. 59; Tupelo v. Beard Holditch, 56 Miss. 532.
In the year 1922, the tax commission assessed the property of the appellant in the city of Hattiesburg at a higher valuation than the same property was assessed by the tax commission for state and county taxes. The railroad company paid the taxes for the years 1922 and 1923 at the assessed rate for the city without protest. On the same assessment roll, the N.O. N.E.R.R. Co. was assessed in like manner at a like high rate, and paid the taxes under protest; sued for them, and was allowed to recover them in the case of Hattiesburg v. N.O. N.E.R.R. Co., 141 Miss. 497, 106 So. 749, both assessments being made upon the same roll, as stated.
At the time of the payment of the taxes, a protest was necessary to enable the party to recover the taxes. Pearl River County v. Lacey Lumber Co., 124 Miss. 85, 86 So. 755; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 534, 126 So. 39.
This being true, the tax voluntarily paid became the absolute property of the city, the city's title becoming complete by the voluntary payment.
The Legislature in 1926 passed a law (Laws 1926, c. 196) authorizing the refund of taxes erroneously paid, whether paid under protest or not, and the appellant contends that it was entitled to a refund because repayment was applied for and demanded after the passage of this act.
In our opinion, this act has no application here, but contemplated a prospective, and not a retrospective, operation of the statute. Statutes will be given a prospective operation unless a contrary intention is shown. Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977.
A statute should not be given an effect which imposes an additional burden on past trasactions, unless that plainly appears to be the intention of the Legislature. Power v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; State v. Miller, 144 Miss. 614, 109 So. 900.
The statute created a right and not a mere remedy. We think, therefore, that the ruling of the court below was correct, and the judgment will be affirmed.
Affirmed.