135 So. 217 | Miss. | 1931
Lead Opinion
The appellee, in his official capacity as sheriff and tax collector of George county, brought this action against the appellant in the circuit court of that county to recover the sum of two thousand eight hundred five dollars alleged to be taxes due by the appellant to the state, George county, and the various taxing districts of the county, for the year 1929. The appellant, although personally served with summons, failed to appear and make any defense to the suit. At the return term of the court, there was a judgment by default and a final judgment on proof in favor of the appellee for the amount sued for, from which judgment the appellant prosecutes this appeal.
The appellant asks a reversal of the judgment upon two grounds: First, that the appellee was without authority of law to bring the action; and, second, that, if mistaken in that position, our statute making taxes a debt for which suit may be brought is violative of the due process provision of both the State and Federal Constitutions, and is therefore void. Constitution *128 United States, Amendment 14, section 1; Constitution Mississippi 1890, section 14.
There were attached to appellee's declaration, as exhibits thereto, a copy of the assessment roll for the year 1929 covering the appellant's property, the taxes on which were sued for, a copy of the final order of the board of supervisors, approving the assessment roll, and copies of all of the proceedings leading up to the final approving order, including proof of publication to the taxpayers of the county of the equalization meeting of the board of supervisors at which they were required to appear and make protests against their assessments, if dissatisfied therewith.
The assessment of the appellant's property was regular and legal in every respect. In fact, its legality is not challenged by the appellant.
The statute under which this action was brought is section 3122, Code of 1930, which has appeared in all our Codes, substantially in its present form, back to and including the Code of 1892, and reads as follows: "Every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem, privilege, excise, income, or inheritance, is a debt due by the person or corporation owning the property or carrying on the business or profession upon which the tax is levied or imposed, whether properly assessed or not, or by the person liable for the income, inheritance or excise tax, and may be recovered by action; and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima-facie correct."
It is unnecessary to decide whether or not the appellee was authorized to bring this suit, because we have reached the conclusion that this question cannot be raised for the first time on appeal.
In 3 C.J., pages 762, 763, paragraphs 667 to 670, the general rule is stated substantially as follows: That an *129
objection that the plaintiff has no such interest in a controversy as entitles him to maintain an action — that he is not the real party in interest — or that suit was brought by the wrong person or official, must be made in the court below, and cannot be raised for the first time on appeal. Numerous decisions are cited in support of the text, including Bowles v. Wright,
The appellee, in his capacity as sheriff and tax collector, in bringing this suit, was not a mere intermeddler. He had an interest in the controversy. The taxes sued for were, under the law, due to him. When the assessment rolls were turned over to him, he was charged with the taxes. The rolls were his warrant for their collection, and, under the law, it was his duty in case of delinquencies to proceed to collect the taxes on personal property by distress, and on lands by advertisement and sale. His official bond covered the faithful performance of this duty. In other words, at the time this suit was brought, the appellee had the right to receive and receipt the appellant for the taxes sued for, which receipt, of course, would have been a legal acquittance for such taxes. We think the appellee's status with reference to the taxes sued for is much like the status of the complainant in the case of Beason, Executor, v. Coleman et al.,
We have not here the case of a public official bringing a suit about a matter in which he has no concern whatever in his official capacity, and therefore it is unnecessary to decide whether or not, in such a case, his right to sue could be raised for the first time on appeal.
Appellant contends that the statute violates due process because it fails to provide for personal service of process on the taxpayer giving him notice and an opportunity to be heard at the equalization meeting of the board of supervisors. In considering this question, it should be borne in mind that the assessment of appellant's property was, in every respect, legal. There was no attack made upon it in the court below, nor is there any made in this court. The last clause of the statute provides that, in all actions for the recovery of ad valorem taxes (the kind of taxes here sued for) "the assessment roll shall only be prima-facie correct." If the law made the assessment roll conclusive as to the amount of taxes due by the taxpayers, the appellant's position would raise a very grave question; but that is not true, the assessment roll is only prima-facie correct. That means that the presumption of its correctness is rebuttable. New Orleans G.N.R. Co. v. Walden (Miss.)
The Supreme Court of the United States, in the case of McMillen v. Anderson,
Affirmed.
Ethridge and Cook, JJ., dissent.
Dissenting Opinion
In my opinion the decision of the majority in this case is directly contrary, upon the point of the right to sue, to the case of Carrier Lumber Mfg. Co. v. Quitman County,
In order for the plaintiff to maintain the suit, he must have a right of action, and the declaration must show the right of action. The declaration in the present case is founded upon a cause of action in the sheriff per se; that is, it is founded upon the theory that the plaintiff is authorized by law to sue. If the officer is not authorized to sue at law, the suit by him is no more effective than a suit by a private individual.
In volume 20 of Encyclopedia of Pleading and Practice, page 589, under title, "By Whom Action in Behalf of State Instituted," it is said: "The state can be recognized by the court as a suitor in legal proceedings only through the agents or representatives appointed by law to speak and act in its name, and unless a proper agent or representative is present, in legal contemplation the state is not present; and this presence of the agent or representative can be made known and attested only by the record." The cases of People v. Navarre,
I think the principles of the case of McBride v. State Revenue Agent,
"By the act of February 24, 1890, a civil liability subjection to the ordinary suit at law was also declared in favor of the state, but the right to institute or prosecute the civil suit was not vested in the tax collector. The collection he was to make was by distress, for the charge was yet treated as a tax, to be collected as such, with the added remedy of the civil action by the state, to be prosecuted by such agencies as the state should designate. Section 1592 of the Code manifestly and without doubt imposes a penalty, and not a tax, a part of which is given to the municipality in which the offense is committed. Though the very nature and character of the charge is thus changed, the language of the preexisting statutes was retained, and the sheriff and revenue agent were authorized and directed to assess and collect the sums, for payment of which the offender was made liable. . . . We have declared that it is competent for the legislature to direct and declare in what manner and by what persons the existing rights of action of the state or a municipality may be prosecuted. But we have held, and must always hold, that the state may not by mere legislative declaration create a right *134 and execute it by its executive officer, and we must now decide that so much of section 1590 of the Code of 1892 as authorizes the sheriff and revenue agent to assess and collect by distress the penalty thereby imposed is violative of article 3, section 14, of the constitution. The penalty prescribed is not a tax, and cannot be made one by the mere authority to `assess' it as such.
"It is unfortunate that the civil action given to the state, counties, and municipalities by the concluding clause of the section was not authorized to be instituted by the revenue agent, as it well might have been. But the right to sue is by the clause limited to the state, county, or municipality, and is not conferred on this officer."
The court reversed the trial court and dismissed the bill of the revenue agent because he did not have authority to conduct the suit.
Another case, and one which, it seems to me, is conclusive of the question, is State v. Bias,
"The conclusion, therefore, is that the act of 1880 had expired by limitation before the institution of the suit by Adams; that there was not at that time any such office as that of revenue agent, and per consequence there could not be either a de jure or de facto incumbent; that assuming to act as such did not invest Mr. Adams with the official authority to represent the state; and that a recovery by him was not a recovery by the state; wherefore, the present suit is maintainable. It is but justice to Mr. Adams, by whom the former suit was prosecuted, to say that his right to sue as agent of the state has not been controverted. We doubt not that he has acted in the utmost good faith in continuing in the performance of what he thought was official duty." It will be seen by this opinion that an officer, having no right to sue on behalf of the state or the county or the municipality, does not represent it, and his act is not the act of the state or the county or the municipality. Applying that principle to the case before us, the act of the sheriff in bringing suit was not the act of the county, or the state, and the judgment, although it might be paid, would not be an answer to another suit by the state tax collector, or by the attorney-general, who have the right in such case to sue on behalf of the state and of the county.
It was held in Yazoo M.V.R. Co. v. West,
In Henry v. State,
Another reason for holding that a sheriff cannot sue is that, by section 6995, Code of 1930, it is provided that in all suits against delinquent taxpayers the assessor and tax collector shall be made parties, and, if it shall appear that the failure of the taxpayer to properly assess or pay the taxes was caused by any wilful default or negligence of the assessor or tax collector, judgment shall be rendered against the defaulter or defaulters for the amount of twenty per cent additional. This case deals with suits by the state tax collector, and shows that it was the purpose of having the sheriff and the assessor *137 made defendants to all suits against individual delinquent taxpayers in order to recover from the sheriff or assessor, if the fault was through him, the revenue agent's commissions. Another reason why the sheriff cannot maintain the action is that he is given the power of distress by section 3238, Code of 1930, which power of distress is equal to the power of an execution on a judgment. In other words, to collect taxes the sheriff can seize and sell any taxable property owned by the taxpayer without a judgment just as effectively as he could do it with an execution, and why permit litigation and the long course it sometimes runs when a simple distress will accomplish the same result. The only difference between a distress and a judgment is that the judgment follows the person, and subsequently acquired property may be afterwards seized, and it is manifest that the legislature never contemplated that the sheriff should sue and represent the state and counties. He is not empowered by law to employ attorneys, and is not usually an attorney himself, and to permit him to maintain suits would be in many cases to jeopardize the rights of the states and the counties.
Coming now to the question as to whether there is any cause of action, we must consider the statute as it is written and what may be done under it in testing its constitutionality, and, of course, in doing so we are to bear in mind the course of decisions in the long line of cases construing the statutory provisions for assessing and collecting taxes. Under section 3122, Code of 1930, which declares a tax a debt recoverable by action, it is provided, and was necessary to provide to make it a valid statute, that the assessment roll was not final. The assessment is made final by another statute and by a long list of decisions of this court, which shows that an assessment cannot be attacked after it becomes final under the law. Section 3166, Code of 1930, among other things, provides that all persons who fail to file objections *138 shall be concluded by the assessment and precluded from questioning its validity after its final approval by the board of supervisors or by operation of law.
In Adams v. Luce,
In Robertson, State Revenue Agent, v. Bank of Yazoo City,
In Long Bell Co. v. McLendon,
It seems to me that, as long as these decisions stand, no suit can be maintained because the roll would be conclusive, and under Pennoyer v. Neff,
It is said in the majority opinion in the present case that the assessment roll is only prima-facie correct, and that it is left to be litigated subject to the right of either party to show the real facts, and therefore that in the suit to recover taxes the legality of the tax and of the assessment sought to be imposed may be litigated. That holding is directly contrary to the Tonella and other cases following that. The statute, however, goes further and provides that taxes imposed by law may be recovered by an action, or that it constitutes a debt against the person owning the property whether the property was assessed or not. A careful reading of the Tonella Case, which has long been in force and recognized as authority in this state, will show that the uniformity scheme required a comparison of the property of each individual with that of other individuals, and the fixing of value thereon in a proceeding in which all are or may be heard.
In Enochs v. State ex rel. Roberson,
Our law provides fully how the tax collector shall collect the taxes. It would be a strange condition of affairs if a person whose property is seized by distress could not question the validity of the assessment roll or the value of the property as therein fixed, whereas he could do so under the statute involved in this litigation. Our own court has held that a personal judgment cannot be rendered upon properties substituted for personal summons; that, while the legislature may subject property to a demand, it cannot impose a personal obligation without service of personal summons. Cudabac v. Strong,
A tax does not become a debt until it is assessed in a proceeding provided by law. See State v. Thibodeaux,