Opinion
No. 33300.
September 26, 1938.
1. TAXATION.
The minutes of the board of supervisors should show that notice of meeting at which the board will hear complaints about the tax rolls and will equalize or adjust tax assessments has been given to the taxpayers, and such notice must be actually filed with the board, to give the board jurisdiction to equalize assessment rolls.
2. TAXATION.
Where there was no notice of meeting at which board of supervisors would equalize taxes, or proof of publication thereof filed with the board at meeting at which assessments were equalized between individuals, equalization proceeding was void and a sale of land for delinquent taxes was invalid.
3. EQUITY.
Where bill involved regularity and legality of equalization proceeding, the bill was multifarious as to claim against officers for failure to give the person assessed notice of expiration of time for redemption.
APPEAL from the chancery court of Amite county; HON. R.W. CUTRER, Chancellor.
Gordon Gordon, of Liberty, for appellant.
If the chief objection of a bill be made in which all the parties are in some substantial manner directly interested in some articulate way, it will not be an objection for multifariousness that other incidental matters necessary to a full adjudication of the whole controversy may effect only some of the parties.
Henry v. Henderson, 79 Miss. 455; Griffith Chancery Practice, page 199, par. 203; Dukote v. Adams, 101 Miss. 433; Robertson v. Monroe County, 118 Miss. 541.
It is a rule of law that where equity has jurisdiction for one purpose it will retain the bill for full relief, and adjust the rights of all of the parties in regard to the whole subject matter involved.
R.R. Co. v. Brooks, 66 Miss. 583.
The minutes of the board of supervisors do not show that such legal notice was given to the taxpayers of said county so as to obtain jurisdiction in the matter and thereby make a legal and valid assessment of lands in said county for said years.
The minutes of the board of supervisors show that on July 11, 1930, Minute Book 17 at page 21, the assessor had returned his assessment of the real estate in the county to the board of supervisors and that they had considered it and ordered that notice issue to the taxpayers that they would on the first Monday of August, 1930, hear objections to any assessments contained in said roll. The minutes show that the board of supervisors met on the first Monday of August, 1930, and there was no adjudication that legal notice had been given to the taxpayers as required by statute, or as called for by the order entered at the July term. So far as their minutes are concerned, they are silent as to any action taken with regard to equalizing the assessment of lands for the years 1930 and 1931.
The minutes of the board of supervisors for the September term 1930 show no order with regard to the consideration of the land assessment roll for the years 1930 and 1931, and there was no adjudication of notice having been given to the taxpayers that the assessment roll would be equalized by the board.
Section 203, Code of 1930.
The Supreme Court of the State of Mississippi has decided in the case of Hunter v. Bennett, 149 Miss. 368, 115 So. 204, that the approval of the assessment rolls of Hinds County at a void adjourned meeting was void and a nullity.
We nowhere in the minutes of the board of supervisors of September 23, September 29, and October 14 and 15, 1930, find entered any notice of this special meeting or a statement of the matters to be considered at these meetings and we earnestly insist that under Section 203, Code 1930, as construed and held in the case of Hunt v. Bennett, 149 Miss. 368, all their acts were a nullity and that the taxpayers were not bound by any order entered at these meetings.
The board of supervisors can only speak through its minutes; its minutes are the only evidence of what it did; and when it makes a contract, its minutes are the only evidence of that contract.
Amite County v. Mills, 138 Miss. 222; Smith County v. Mongum, 127 Miss. 192; Board of Supervisors v. Otterly, 146 Miss. 118; Merchants Bank Trust Co. v. Scott County, 145 Miss. 198.
The assessment of real estate of Amite County, Mississippi, for the years 1930-1931 was void and illegal as Section 3162 of the Code 1930 provided that the board of supervisors shall immediately at the July meeting proceed to equalize such roll 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. Section 3167 of the Code 1930 provides that if this notice is not given at the term specified that it may be given at a later time.
Board of Supervisors v. Otterly, 146 Miss. 118; Gordon v. Smith, 154 Miss. 787; Henderson-Molpus Co. v. Gammill, 149 Miss. 577; Robb and Chichester v. Telegraph Co., 104 Miss. 165.
If this court should hold, or be of the opinion, that the special meeting of September 23rd, the adjourned meeting of September 29th, and the adjourned or special meeting of October 14, 1930, was legal and that the orders as passed at said meeting would be legal with regard to the said assessment, the minutes of said board as entered on October 15, 1930, does not recite the jurisdictional facts necessary to make said assessment a legal assessment and bind the taxpayers and in support of this we refer the court to the decisions as rendered by it in addition to those already hereinbefore cited.
Aden v. Bd. of Suprs., 142 Miss. 696; Smythe v. Whitehead, 133 Miss. 184; Monroe County v. Minga, 127 Miss. 702; Robertson v. Bank, 115 Miss. 840; Henry v. Bd. of Suprs., 111 Miss. 334; Adams v. Bank, 103 Miss. 744; Hinton v. Perry County, 84 Miss. 537; Bolivar County v. Coleman, 71 Miss. 836; Wentworth v. Flowers, 163 Miss. 38.
A valid assessment of all property is the foundation of the validity of all sales.
North v. Culpepper, 97 Miss. 730.
The power to sell property for taxes is stricti juris, and must be clearly given before it can be exercised.
Deason v. Dixon, 54 Miss. 585.
This court has repeatedly held that a board of supervisors is a court of limited and special jurisdiction.
Robertson v. Bank, 115 Miss. 840; Monroe County v. Menga, 122 Miss. 702; Simpson County v. Burkett, 172 So. 329, 178 Miss. 44; Olvis v. Hicks, 150 Miss. 306.
If the board of supervisors fail to obtain jurisdiction of the taxpayers, the assessment of lands in said county for the years 1930-1931 was void, and it follows that the assessment being void that there could be no legal sale of the lands involved in this suit, and that the sales as made by the tax collector of the land are void, and the appellant should be adjudged the legal owner of the same.
The sales here made were the same as if made on a day other than the time for tax sales fixed by statute. A board of supervisors would have as much authority on the first Monday of March to order the tax collector to sell the lands on the first Monday of May as they had in this case to order them sold on the first Monday of October.
Bailey v. McRay, 169 So. 887, 176 So. 557; Smith v. Hendrick, 178 So. 819.
Joe Upton, of Gloster, and J.T. Hutchison, of Summit, for appellees.
The board of Supervisors gave all the notices required by law for the approving and accepting of the assessment roll. The board of supervisors can only speak through their minutes and the following notice was entered on minutes of board of supervisors of Amite County, Mississippi; "Order of Board of Supervisors of Amite County, Mississippi, finally approving the assessment rolls of real and personal property in Amite County, Mississippi, as filed by the assessor, and approved by the board of supervisors, and as revised and corrected by the State Tax Commission of the State of Mississippi. On motion of D.E. Quin, seconded by W.W. Cassels, the following order is hereby adopted, approving the assessment rolls of Amite County, Mississippi, viz.:
"It appearing that the assessment of the real and personal property for the year 1930 was made in due form as required by law by the assessor of said county, and that the real and personal rolls of said assessment was filed with the Board of Supervisors, and was corrected and equalized by the Board after due notice to the tax payers at the July and August meetings, 1930, and that said rolls were forwarded to the State Tax Commission of said State as required by law, and that said Tax Commission ordered and directed certain increases and decreases on different classes of real and personal property in said County, and that thereafter the said order of said State Tax Commission was modified by said Commission by a subsequent order, and that after due notice to the tax payers of said county the said order of the said Tax Commission making increases and decreases as modified, was approved by the Board of Supervisors, all of which has been duly entered on the minutes of the Board of Supervisors; it is thereupon ordered and adjudged that the Assessment Rolls of real and personal property of Amite County, Mississippi, now on file with the Clerk, and as corrected and equalized by the Board of Supervisors at the July and August meeting 1930, and with the following increases and decreases ordered by the State Tax Commission, to-wit:"
Smith v. Board of Supervisors of Tallahatchie County, 124 Miss. 36.
The board of supervisors had authority to order the land sold on the 1st Monday of October, 1932. Section 3252, Code of 1930, provided that if land is not sold at regular time then it may be sold at a later date by approval of the Board of Supervisors with the proper publication. When the Board of Supervisors met on the 1st Monday of September, 1932, it was too late to order a sale of delinquent tax land on the third Monday of September, because it was too late to make three weeks publications before the third Monday of September; therefore by the authority vested in the board of supervisors by Section 3252, Code of 1930, the board of supervisors had authority to order the sale of delinquent tax land on the 1st Monday of October, 1932, for taxes for the year of 1931. The board of supervisors gave the proper notice and proper publication was made by the sheriff.
Argued orally by C.T. Gordon, for appellant.
The appellant, the Federal Land Bank, prior to December, 1930, had foreclosed a deed of trust on certain lands described in the bill here, and thereafter made a contract with Thomas C. Cox, one of the appellees, on the 23rd day of December, 1930, to sell and convey the lands described to him, on terms and conditions stated in the contract. In this contract Thomas C. Cox had contracted to pay taxes for 1931, and all subsequent taxes upon this property; and also to make certain payments set forth in the contract. The appellee, Thomas C. Cox, failed to pay the taxes for 1931, and permitted the land to be sold therefor, on the first Monday of October, 1932.
There had been no partial payment of taxes, under the law permitting taxes to be paid in installments. The regularity and legality of tax proceedings is here involved. The title matured in the purchaser, who appears to be the mother of Thomas C. Cox, and a portion of the land was assessed to the Federal Land Bank, and a portion to another party, the original owner of the land.
The tax not having been paid, in whole or in part, on the first Monday of September, 1932, the board of supervisors entered an order directing the tax collector to sell all lands for delinquent taxes on the first Monday of October, 1932. The tax collector proceeded to advertise the lands of the county on which taxes had not been paid, and such notice of sale was advertised in the newspapers of the county, the sale to be made on the third day of October, 1932. On the day of the sale a son of the purchaser at the tax sale bid the land in for his mother. There is a dispute in the evidence as to which of the sons did so, but in view of the conclusion we have reached, this becomes unimportant.
When the assessment roll was made up by the tax assessor at the July meeting, 1931, an order was entered, directing that notice be given to the public to appear at the meeting of the board on the first Monday in August, at which time the board would hear any complaints about the tax roll, and equalize or adjust the same before approving the equalization of such tax assessments. There was no recital in the minutes of the board of supervisors at the August meeting that any such notice had been given, and it appears, in fact, that none had then been filed with the board. The rolls were equalized, and the footings of the assessment sent to the State Tax Commission, which ordered certain property to be raised at varying percentages, as shown in the order of the Tax Commission on different classes of property.
On receipt of this order from the State Tax Commission the board of supervisors directed notice to be given to the public for hearings on such changes in the particular classes of property. On the 14th day of October, at the meeting to pass on such changes in the assessment roll, as ordered by the Tax Commission, the board entered an order in which it recited as follows: "It appearing that the assessment of real and personal property for the year 1930 was made in due form as required by law by the assessor of said county, and that the real and personal rolls of said assessments was filed with the board of supervisors, and was corrected and equalized by the board after due notice to the tax payers at the July and August meetings, 1930, and that said rolls, were forwarded to the State Tax Commission of said state, as required by law, and that said Tax Commission ordered and directed certain increases and decreases on different classes of real and personal property in said county, and that thereafter the said order of said State Tax Commission was modified by said Commission by a subsequent order, and that after due notice to the tax payers of said county the said order of the said Tax Commission making said increases and decreases and as modified, was approved by the board of supervisors, all of which has been duly entered on the minutes of the board of supervisors; It is thereupon ordered and adjudged that the assessment rolls of real and personal property of Amite county, Mississippi, now on file with the clerk, and as corrected and equalized by the board of supervisors at the July and August meetings, 1930, and with the following increases and decreases ordered by the State Tax Commission, to-wit: (setting out the classes so ordered) . . . and same is hereby adopted and declared and fixed as the correct and true assessment of the taxable assessment of the taxable property of said county for the year 1930," etc.
The deputy clerk of the Chancery Court, who kept the minutes of the board of supervisors, was examined as a witness, and testified that there was no entry on the minutes at the August meeting, or at the adjourned meeting from that meeting, showing that notice had been published as required by law; and, further, that he examined the files of the board in which the notice, if filed, should have been placed, but found none, and nothing to show that such notice had actually been filed with the board of supervisors, showing such publication of notice to the tax payers.
It will be seen from a reading of the order of October 14th 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. The testimony of the deputy clerk, who attended to such matters, and who was examined as a witness, shows that there was, in fact, no notice on file, and nothing in the way of a record to show that one had ever been filed.
This Court has decided a number of times that the minutes should show the notice to the tax payers, given in the manner prescribed by law; and that such notice must be actually filed with the board, to give the latter jurisdiction to equalize the assessment rolls. See Henderson Molpus Co. v. Gammill, 149 Miss. 576, 577, 115 So. 716; Board of Supervisors v. Ottley et al., 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. 539; Monroe County, To Use, etc., v. Minga et al., 127 Miss. 702, 90 So. 443. It might be that in the absence of positive proof, or some proof from which positive inference could be drawn, that the recital of due notice might raise a presumption that such notice was, in fact, given. As to this, it is not necessary here to decide, because the proof shows that there was, in fact, no notice and proof of publication thereof filed with the board at the August meeting, at which time it equalized the assessment between individuals.
The tax assessment rolls made up by the assessor in describing that part of the land which the Chancellor held to be void for uncertainty of description read as follows: "NW and W 1/2 of SW section 8, township 1, range 3." It is unnecessary to decide this point because we are of the opinion that the whole proceeding was void for failure to have on file notice and proof of publication showing that notice was given. But the attention of the taxing authorities should be directed to the danger of omitting the proper figures to indicate the correct description of the land.
We are of the opinion that the Chancellor was correct in holding the bill to be multifarious as to the suit against the officers for failure to give the person assessed notice of the expiration of the time for redemption. The suit here involved grows out of different matters from the matter involved in the liability, if any, of the officers in failing to give the required notice.
The judgment of the Chancellor in holding the tax sale valid is reversed, and decree will be entered here canceling the tax sale to Mrs. Cox, mother of Thomas C. Cox; and also awarding judgment against Thomas C. Cox for the sum evidenced by the contract, less the payments made, together with interest and attorney's fees.
Reversed and rendered.