Pearl River County v. Lacey Lumber Co.

86 So. 755 | Miss. | 1920

Ethridge, J.,

delivered the opinion of the court.

The Lacey Lumber Company, a corporation, filed a petition for mandamus in the circuit court of Pearl River county setting forth that it was a taxpayer of the said county owning large quantities of land in the said county; that in 1916 the legislature of the state passed a bill (chapter 475, Laws of 1916) providing for a new and special assessment of lands of Pearl River county to take the place of the assessment made in 1915, which was the year for the regular land assessment; that after the passage of the said act the taxing authorities of Pearl River county proceeded to make an assessment under said special act, and that the lands so assessed were valued higher in the year 1916 than they were under the regular 1915 assessment; that the state tax in excess of the amount due under the 1915 law equaled ninety-eight dollars and thirty-four cents, and that the excess of the county tax amounted to three hundred and sixty-eight dollars and seventy-seven cents; that the petitioner paid to the tax collector the said sum of money demanded by him as taxes due on said lands for the year 1916 under compulsion and protest duly entered on' the face of the receipts for said money; that afterwards application was made to the auditor of public accounts and to the attorney general for a refund of the amount in excess of the 1915 assessment under section 4346, Code of 1906 (Hemingway’s Code, section 6980), and that the auditor and the attorney-general approved and allowed said application for a refund and refunded the state taxes paid in excess of the 1915 assessment, and certified to the board of supervisors the amount which the county should refund, but the board of supervisors refused to allow the amount certified and rejected and disallowed the claim. It is further alleged that the petitioner has no adequate remedy at law than that of mandamus, and prayed for the issuance of a writ of mandamus.

Appended to the petition as an exhibit thereto is the following:

“State of Mississippi to Lacey Lumber Company, Dr.

“For amount due tbem on account of an erroneous payment into the state treasury of taxes for -the fiscal year 1916, as per vouchers and evidence, on which such claim is based, filed herewith, on the following property in the county of Pearl River as .per the following statement:

Levee Fees

Descrip- State County Taxes Total and Excess

tion. Tax. Tax. Ad Val. Tax. Acre. Damages. of Bid.

See attached tax receipt. Assessed val. 1916, $28,975

“ “ 1915, 12,585

16,390

98.34 368.77

Totals, 98.34 368.77

Less tax collector’s commission, .98 3.64

Net amoiunts to be refunded 97.36 365.08

“State of Mississippi, Auditor’s Office.

“To the Board of Supervisors of Pearl River county, Mississippi:

“This is to certify that the above is a true and correct copy of a statement of taxes erroneously paid by the party or parties named therein, which, having been duly audited by the auditor of public .accounts, was allowed by him o® the 4th day of April, 1919, in accordance with the requirements of sections 3947, 2948, 4335, 4346, 4347, 3248, and 2927 of the Code of 1906, upon the approval of the attorney general, and that the amounts of taxes and excess of bid to be refunded from the treasury of said county by said board, in accordance with the requirements of said sections, to said party or parties named above, the taxes three hundred and sixty-five dollars and eight cents and excess of bid $-.

“Witness my hand and seal of office, done in my office, in the city of Jackson, Hinds county, Mississippi, this the 4th day of April, 1919.

“[Signed] Robert E. Wilson, Auditor,

“By W. J. Miixeb, Deputy Auditor.

“(See section 4346.)”

llie order of the board of supervisors rejecting the claim is also made an exhibit to the petition.

To this petition a plea, of the general issue was filed in the following words:

“'Comes now the defendant, by Parker & Shivers, its attorneys, and defends the wrong and injury when, etc., and says that it is not guilty of the said supposed wrongs and injuries charged against it in plaintiff’s said declaration nor any part thereof, and of this it puts itself upon the country.”

The defendant also filed ten special pleas:

(1) That the funds collected were distributed into the various county road and school districts and taxing districts and that the plaintiff was estopped by delay in presenting the application until after the distribution of the funds.

(2) That the auditor is not authorized under section 4346, Code of 1906 (Hemingway’s Code, section 6980), to order and adjudicate a claim for money paid, as such claim was and is a contested claim, and has not been adjudicated by any court of competent jurisdiction, and that said section does not vest in the auditor and the attorney general jurisdiction and power to try and adjudicate contested claims, and that their action is void and not binding on the county.

(3) That the certificate of the auditor fails to set out the amounts due from the several funds, and therefore the board could not lawfully issue a warrant therefor.

. (1) That the petitioner paid the taxes voluntarily and without protest.

(5) That the action of the auditor and the attorney general was taken without notice to the county, and therefore was without due process of law and in violation of the Constitution.

(6) That the said claim is now a disputed claim, and is not one affixed and approved by the law, and is not a debt against the county, and is not required to be paid by chapter 209, Laws of 1918.

(7) That the taxes were collected for various county purposes and funds and held in trust by the county for the various school districts, and are now paid over to the various districts, and that the board of trustees of the districts alone have a right to fix the levy for such districts, and the board of supervisors has no discretion as to these levies and no authority to make a levy therefor, nor any authority to force said trustees to make a levy, and that to grant the Avrit Avould require it to do an unlawful act.

(8) That payment Avas voluntarily made and no protest Avas made on the ground that the act of 1916 Avas unconstitutional, and no protest was made on the ground that they were illegally demanded and collected on a void assessment or an assessment made under an unconstitutional laAV.

(9) Because petitioner has an adequate, plain, and speedy remedy in the ordinary course of law to adjudicate its rights and recover any funds due it.

(10) That, although the assessment for 1916 might have been unconstitutional, the assessment was made and approved and stands on the hooks as a valid, constitutional, and binding law on the tax collector and petitioner at the time the taxes were paid, and especially so in view of the case of Horton v. King, 110 Miss. 859, 71 So. 9, which case at that time had not been overruled, and that said taxes were legally due when paid, and were not paid under any protest whatever that the assessment was illegal and void; that while a similar act was held unconstitutional February 5, 1917, the Pearl River county’s act has never been declared unconstitutional, and the decision of the supreme court declaring a similar act unconstitutional did not revert back and decide that the taxes paid by the petitioner were not legally due when paid, and therefore that the act of the auditor is void, etc.

Pleas Nos. 2, 3, 4, 5, 6, 7, 8, 9, and 11 were demurred to, and plea No. 10 was moved to be stricken from the files, and it was agreed that the cause be submited to the judge on petition, a certificate of the auditor thereto attached, and a copy of the order of the board of supervisors of Pearl River county denying the claim, pleas of the defendant, the demurrers to all the pleas except Nos. 1 and 1.0, and the motion to strike plea No. 10, for final determination of the rights of the parties herein.

The court sustained the demurrers to all from No. 2 to No. 9, and also No. 11, and sustained the motion to strike out plea No. 10, and ordered the board of supervisors to issue the Avarrant as prayed for in the mandamus.

The main proposition for decision is the constitutionality of the act of 1916 authorizing the special assessment of the lands in Pearl River county.

In the case of Horton v. King, 113 Miss. 60, 73 So. 871, this court held that it was not competent for the legislature to pass a special act applicable alone to one county for the assessment of property, and declared an act of the legislature authorizing a special assessment applicable to only one county to be unconstitutional and void. And in the case of Bullock v. Board of Supervisors of Covington County, 77 So. 662, this court held that another special act for assessment of real estate in one county was also unconstitutional and void, citing the case of Horton v. King, 113 Miss. 60, 73 So. 871. It is clear from a consideration of these cases that the law in the present case is unconstitutional and void.

It is insisted that,, while the act is on all four with the acts condemned in the other cases, those decisions will not control the court in the determination of the present case and that the assessment ought to be upheld because the original decision of Division A of this court in the case of Horton v. King, as reported in 110 Miss. 859, 71 So. 9, held that the .assessment, was valid, and it is insisted that the assessment in the present case was made or ordered during the time this announcement was in force and before its reversal on suggestion of error. It is also urged that the statute has never been declared unconstitutional, and that it stands as a valid statute until so declared to be unconstitutional. Neither of these contentions can be countenanced for the reason that an unconstitutional law is absolutely void. It is, in effect, mere waste paper-, and no rights can accrue under it.

Several questions are presented in the briefs and were attempted to be set forth in the special pleas above mentioned, and especially is it argued and insisted that the tax was paid voluntarily, without protest or compulsion, and for that reason cannot be recovered back.

The petition for mandamus set forth that the payment was made under protest and that the tax receipt was so marked to show that it was paid under protest. The special plea on this subject seems to attempt to raise the question that no specific protest was made on the ground that the law was unconstitutional and the assessment void for that reáson. It seems to be conceded in the argument that the protest was made in general terms and the tax receipts marked “Paid Tinder protest,” but it is contended that the protest must be special and point out the particular ground on which the objection is based.

In our opinion, where a proceeding is void on its face and cannot be upheld at all, a protest in general terms is sufficient. But, if the defect arises from some failure to observe some requirement, or from some fact not appearing upon the face of the record, the protest ought to be special and call attention to the defect.

We do not think that the county can shield itself from repayment of money collected under an unconstitutional law, paid under protest on the ground that the county has disbursed the money so collected into various taxing-districts, or has expended the money which it wrongfully collected. The fact that the county might not be able to recover from the taxing districts the amount of money paid to such districts would not exempt it from liability to the taxpayer from whom it wrongfully collected it.

We do not think that the auditor and the attorney general, in acting- under section 4346, Code of 1906 (Hemingway’s Code, section 6980), acted judicially, nor is a judicial proceeding necessary to authorize the allowance of money out of a public treasury or a public fund. The scheme provided in that section is an easy method of refunding to the taxpayer moneys which have been paid erroneously into the treasury. The scheme seems to contemplate that the error must appear on the face of the record, and that no moneys can be refunded unless and until they have been approved by the auditor and the attorney general, and come within the purview of the law. It is an easy and inexpensive method of refunding erroneous payments of taxes and secures thq consideration and attention of competent officers and secures uniformity in practice in refunding. We do not think, however, that the approval of a claim by these officers make it mandatory upon the treasurer or the county board to refund if they in good faith believe there is a good defense' to the claim.

In cases involving constitutional questions or intricate law points we think the right exists in the officers representing the public to contest liability.

We have said this much because we thought it best to announce the principles by which the court would be guided. There was a plea of the general issue interposed which, of course, denied all of the material allegations of the petition for mandamus. There was no evidence introduced, and with the general issue denying the allegations of the petition it was error to proceed to judgment or to grant the writ when the allegations were thus denied. The denial was effective to dispute the allegations that the claim had been presented to the auditor and the attorney general. The record in this case does not contain the petition filed with the auditor, nor is there anything to show what facts influenced the decision of the auditor and the attorney general, if indeed they allowed the claim as alleged. This is not a case tried on an agreed statement of facts, and, as the general issue puts in issue all facts set forth in the petition, it was error to render judgment requiring the board of supervisors to make the allowance.

Reversed and remanded.