Opinion
No. 33343.
October 17, 1938.
1. TAXATION.
Where county board of supervisors ordered publication of notice to taxpayers of tax assessments, order and notice were published together with clerk's certificate that it was a true and correct copy of the order, and board at its next meeting entered entire publication on its minutes and also publisher's proof of publication, and entered order finally approving assessment rolls, minutes sufficiently showed that notice was on file with clerk on day of final order approving assessment, as against contention that minutes did not show adjudication by board that publication and proof thereof were on file in clerk's office at time order was made (Code 1930, sec. 3162).
2. COUNTIES. Process.
The statute requiring the seal of clerk of court to be upon all process refers to process addressed to individuals, and not publication of a general notice by a county board of supervisors to the public or part thereof not specifically named (Code 1930, sec. 2964).
3. TAXATION.
A notice to taxpayers of tax assessments, which was ordered by county board of supervisors, was not within statute requiring seal of clerk of court to be upon all process (Code 1930, secs. 2964, 3162).
4. PROCESS.
The object of the statute requiring seal of clerk of court to be upon all process, as regards requirement of a seal, is to advise the party upon whom the writ is to be served that its authenticity is genuine (Code 1930, sec. 2964).
APPEAL from the chancery court of Leake county; HON. M.B. MONTGOMERY, Chancellor.
F.E. Leach, of Carthage, for appellant.
At a comparatively early date in the history of our own Supreme Court, in the case of Daniel M. Griffin v. D.W. Sheffield, 38 Miss. 359, when this question of the "impression of a public seal" was before the court for determination, it was held: "The statute of registration does not contemplate the recording of the impression of a public seal; and hence, it is no objection to the admission, in evidence, of a certified copy of a recorded deed, that a copy of the impression of the official seal of the officer who took the acknowledgment of the grantor does not appear on it, if it be stated in the body of the certificate of acknowledgment, that it was certified under such official seal."
In the case of Burton v. Cramer, 86 So. 578, it was held that "a writ without the seal of the court, or a statement of the fact, if there were no seal, is bad." From this opinion we are unable to ascertain just what the recital as to the seal was; but the authority for the holding of the court in this case was based on the case of Pharis v. Conner, 3 Smedes M. 87.
In the case of Pharis v. Conner, supra, the court held that "A writ was not good without the seal of the court, or a statement of the fact if there were no seal." From the briefs of counsel in this case we find that the process was under attack "Because the writ is not attested by and with the seal of said Circuit Court; and that said writ is insufficient in this, the words, `and seal of said court' are not written on said writ."
From the above holding, it is apparent that if this process had recited that it was "under seal of the court" it would have been sufficient and would have been a compliance with the law.
In the case of McAllum v. Spinks, 91 So. 694, the court in passing on the requirement of a seal said: "A writ without the seal of the court, or a statement of the fact if there is no seal, will be held bad on appeal by a defendant on whom such writ was served."
In the case of Rawlings v. Ladner, 165 So. 427, complaint was made that the notice given by the board of supervisors was defective, in that it was addressed "To the taxpayers of Forrest County, Mississippi" instead of "To the public," and the court held the notice to be legal and a compliance with the law.
In a more recent case Pettibone v. Wells, 179 So. 336, the precise question here under review was presented to the court, except that the point of attack was not directly made on the absence of the recital as to the seal, but the question of the seal was nevertheless finally put to rest against the contention of appellees in this case.
We respectively submit that the case now before the court is a recast of the case of Pettibone v. Wells et al., the orders in both cases being identical.
In the case of Martin v. Board of Supervisors of Winston County, 178 So. 314, the court in reviewing the proceedings of the board of supervisors, the court said: "In dealing with boards or courts administered by men unlearned in technical requirements, strict construction of their orders should not be had. `The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law.'"
Appellant respectfully submits that the record reflects a valid and legal assessment roll for the years 1930 and 1931, and also for the years 1932 and 1933; and that the sale for taxes which rests entirely on the validity of the assessment roll under the agreement of counsel was a valid and legal sale; and, therefore, the judgment and decree rendered in the lower court should be reversed and a judgment entered by this court dismissing appellee's bill of complaint.
O.B. Triplett, Jr., of Newton, for appellees.
If the order is void then the tax title is void.
State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671.
The order of the board at its August meeting is a judgment of a court of limited and special jurisdiction.
State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Board v. Ottley, 112 So. 466, 146 Miss. 118; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601; Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192.
Before the court of limited and special jurisdiction can fix a lien upon property and sell the same for taxes there must be (a) A valid complaint. (The assessment); (b) A summons. (The newspaper notice); (c) A return by the officer designated. (In this case the printer is the officer designated and the return is the proof of publication).
Virden v. Bowers, 55 Miss. 1; Austin Western Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Bank of Weir v. Attala County, 126 So. 192, 156 Miss. 560; Board v. Ottley, 112 So. 466, 146 Miss. 118; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Equipment Co. v. Dunlop, 160 So. 734, 172 Miss. 752; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Henry v. Supervisors, 111 Miss. 434, 71 So. 742; Adams v. Bank, 103 Miss. 744, 60 So. 770; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107.
Being a judgment of a court of limited and special jurisdiction all jurisdictional facts must appear of record in the order. If any of the essential facts are omitted from the order then no presumption is indulged in to supply them.
Robertson v. First National Bank, 76 So. 689, 115 Miss. 840; Adams v. First National Bank, 60 So. 770, 103 Miss. 744; Bolivar County v. Coleman, 15 So. 108, 71 Miss. 832; Board of Supervisors v. Ottley, 112 So. 466, 146 Miss. 118; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576 ; Gordan v. Smith, 122 So. 762, 154 Miss. 787; Peoples Bank of Weir v. Attala County, 126 So. 192, 156 Miss. 560.
Even if a proper notice to the public had been published and proof of publication thereof spread on the minutes of the board, this would have been mere evidence but not the "ultimate jurisdiction of fact "(a) that the notice was actually published or (b) that proof of publication had been filed with the clerk.
Aden v. Board of Supervisors, Issaquena County, 107 So. 753, 142 Miss. 696; Pettibone v. Wells, 179 So. 336.
A publication of the July order of the board of supervisors constituted no notice to the public.
Wood v. Moran, 55 Miss. 105; Gwin v. McCarroll, 1 S. M. 351; Zachary v. Kerr Bowers, 1 S. M. 584; Edwards v. Toomer, 14 S. M. 77; Rawlings v. Ladner, 165 So. 427, 174 Miss. 611; Cameron v. Whittington, 82 So. 311, 120 Miss. 595.
The alleged notice was void for want of a seal.
Sections 2964 and 3162, Code of 1930; Austin Western Machinery Co. v. Webster Co., 154 So. 723, 171 Miss. 601; Sharp v. Smith, 178 So. 595; Hatchett v. Thompson, 165 So. 112, 174 Miss. 502; Burton v. Cramer, 86 So. 578, 123 Miss. 848; Griffin v. Sheffield, 38 Miss. 359.
This is an appeal from a decree of the chancery court in favor of Mendola Lyle et al., appellees, against T.H. Mullins, appellant, cancelling his title to certain lands.
Mullins, the defendant in the court below, claimed title to two forty-acre tracts of land described by proper governmental subdivision, which title he acquired by virtue of sales of land struck off to the State; one sale at the proper time in 1931 for the taxes of 1930, the other sale made in 1932 for the taxes of 1931.
By their bill, the appellees, the owners of the land sold to the State, averred that the sale of the lands in each instance was void and pointed out many particulars, and prayed for a cancellation of the Mullins deed or lease contract as a cloud upon their title. The appellant answered, denying that the sales were void in either instance, and also set up a short statute of limitations, which, in view of the conclusions we have reached, will not be further noticed.
These are sixteenth section lands.
On the trial of the case and here, it is conceded that appellant's title rests upon the validity of the order of the board of supervisors of Leake County entered respectively in August 1930 and 1931.
The court below held that the sales in each instance were void because the seal of the clerk did not appear on the minutes of the board of supervisors in the orders made at the two August meetings.
At the July meeting of the board of supervisors of that county in 1930, it made the usual order, to which no exception is made, and in that order directed that a notice be posted at the court house and published in the Carthaginian, a newspaper published at Carthage, Mississippi, and having circulation in that county, which was in the following words:
"To the Tax Payers of Leake County, State of Mississippi
"You will please take notice that the assessments of real and personal property on the rolls for 1930 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 objection 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, 1930, at his office in the Town of Carthage said County, and that any or all assessments to which no objection is then and there made, will be final.
"(Signed) The Board of Supervisors of said County,
"By B.J. Barnett, "Clerk of said Board."
It appears that the board of supervisors caused to be published the entire order made at the July meeting, including the notice to the taxpayers, which we have set forth, and also published the certificate of the clerk that the order, including the notice, was a true and correct copy of the order of the board of supervisors passed on the 24th day of July, 1930; which certificate contained this statement, "Witness my hand and official seal, this the 24th day of July, 1930. (Signed) B.J. Barnett, Clerk of the Board of Supervisors of said county." At the August meeting, the board entered on its minutes the entire publication, including the certificate to which we have referred, and also the proof of publication of the publisher, and then entered the order finally approving the assessment rolls.
The order having set out in full the entire publication of the preceding order, with proof thereof, did not in words adjudicate that the publication was in conformity to law or recite anything thereasto except the entire lengthy publication.
There did not appear on the publication set forth at the August meeting, the seal of the clerk.
There are many objections to the sale in 1931 based on this order, but we are of the opinion there are only two points necessary for us to notice in this opinion.
(1) It is contended that the board of supervisors being a court of special and limited jurisdiction, that everything necessary to show jurisdiction in the court must be set forth on the minutes, and that the board, at its August meeting, did not adjudicate that the publication and proof thereof was on file in the clerk's office at the time the order was made.
We do not think there is any merit in this contention. It is true that this court has many times held that it is necessary, with reference to this particular order, that it appear from the minutes that the proper publication was on file with the clerk of the court. See Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Henderson-Molpus Company v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 154 Miss. 787, 122 So. 762 and Sec. 3162, Code of 1930.
We are of opinion that as to the publication of the notice required by Sec. 3162 of the Code of 1930, everything appears on the minutes of the board of supervisors, certified to by the clerk, to show that the notice was on file with the clerk of the court on the day the final order approving the assessment was made by the board of supervisors. The board could not have passed the order in that form, nor the clerk have entered it without the publication and the proof thereof being on file. We think the order is substantially in the form, as to the notice and proof of publication, and being on file with the clerk, as is found in the case of Pettibone v. Wells, Miss., 179 So. 336.
It is urged, however, that in the case of Aden v. Board of Supervisors, Issaquena County, 142 Miss. 696, 107 So. 753, wherein the order of the board of supervisors in question set forth the petition of ten or more freeholders and householders of that county for the laying out of a public road, we held the board there was compelled to make an order and find, as a fact, that the signers of the petition were qualified so to sign at the time that the petition must have been adjudicated by the board to have been signed by the requisite number qualified to sign it. This the board of supervisors did not do in that case, and we held there that the adjudication was essential. No such question is raised here. The only question was: Does it appear from the minutes of the board of supervisors that the publication was made in the manner and for the time required by law, and on file with the board at the time it made its final assessment? In the case at bar, the entire July order, including the notice, was published, certified to by the clerk, and its publication proven by the publisher, all of which was copied in the minutes of the August meeting held to hear objections of the taxpayers to the assessment roll, and to enter the final order of assessment. While we do not commend the order, we must say that there appears to be no sound reason to declare it void for want of further adjudication.
(2) It is contended that nowhere in the publication of the notice to taxpayers, or proof thereof, did there appear the seal of the clerk of the board of supervisors. No reference was made to the seal in the order.
Sec. 2964, Code of 1930, requires: "but all process, except where otherwise provided, shall be issued and signed by the clerk of the court, with the seal of his office affixed, and shall bear date of the day on which the same shall be issued." This court early held under the statute, containing virtually the same language, that, "Process without the seal of the court, or if there be no seal without a statement of that fact, is bad." Pharis v. Conner, 3 Smedes M. 87; also see Burton v. Cramer, 123 Miss. 848, 86 So. 578; McAllum v. Spinks, 129 Miss. 237, 91 So. 694, and Austin-Western Road Machinery Company v. Webster County, 170 Miss. 601, 154 So. 723.
In the latter case, we said: "Where publication of notice is jurisdictional, as is the case here, the filing of the proof of the publication is the equivalent of a return in writing by the sheriff of a personal summons, and is equally indispensable." Again in Sharp v. Smith, 180 Miss. 887, 178 So. 595, we held that the notice is in the nature of process to be served on the public.
The statute, Section 3162, requires the board of supervisors by newspaper publication to notify the public. It may be questioned whether or not the board of supervisors is required by law to have a seal, but coming squarely to the issue, we are of opinion the statute, Section 2964, requiring the seal to be upon process, referred to process addressed to individuals and not publication of a general notice by a board of supervisors to the public or a part thereof not specifically named. The notice here was not within the statute. The object of the statute as to seal was to advise the party upon whom the writ was to be served that its authenticity was genuine. In the case at bar, can any man doubt that, after the proof of publication was returned to the board of supervisors, and by it entered upon the minutes, that its authenticity was fully established? We think not, and while we are adhering to a strict rule of construction in the matter of this notice, we must consider the complexity of the situation, suppose the clerk had in this case affixed his seal to the publication and the publisher had printed it with one less star, or with an eagle, or some other device thereon, and the clerk's copy did not show that accurately, it would be contended by a party dependent upon such contentions that the publication was void because the seal was not genuinely copied on the minutes, and the law, if such contention was adopted, would be led to an absurdity. Adhering to the opinions of this court as to the necessity for the process issuing from a court which has a seal, to have thereon the seal, we think the purpose of this statute, with reference to the board of supervisors' notices to the public, in order to comply with due process, does not in fact require a seal to be affixed to such notice, and we will not extend the statute beyond its fair and reasonable intent. We might add in conclusion that the board of supervisors, in adopting this process and filing it by copying it on its minutes, had before it in the printed publication, the certificate of the clerk of the board that it had been issued under his official seal which would appear to set the question at rest. See Griffin v. Sheffield, 38 Miss. 359, 77 Am. Dec. 646.
As to the sale in 1932, the order of the board, upon which the sale was based, appears to be regular, and the only objection thereto urged here by appellees is that the seal did not appear upon the publication, as entered upon the minutes, which we have disposed of heretofore.
The court below erred, and should have dismissed the bill.
Reversed, and judgment here for appellant.