107 So. 545 | Miss. | 1926
The main contention is that, although the order of the board recited jurisdictional facts, in truth and in fact the statutory majority had not signed the petition for the second bond issue of twenty thousand dollars. There is some allegation that the notice was not mailed in conformity with the statute, which is chapter 70 of the Laws of 1902, and the amendments thereto. It would be perhaps interesting but unavailing to discuss the propositions submitted in the briefs of counsel, but, in view of the fact that the legislature has validated this bond issue and the proceedings of the board of supervisors leading up to the issuance of the bonds, we shall pretermit a discussion of the various points raised.
The order of the board of supervisors directing this bond issue was passed by the board of supervisors on April 8, 1924, and on that date became effective, although, *762 of course, the bonds had not been sold or contracted to be sold.
Chapter 225 of the Laws of 1924 was approved April 9, 1924. The title and section 1 of said act is set out here in full:
"An act to validate all bonds, notes, certificates, loan warrants, or other obligations of any county, road district, school district or subdivision or district thereof or any municipality, separate school and district or drainage district in the state of Mississippi, which have been sold or contracted to be sold at no less than par and accrued interest.
"Validating All Bonds and Proceedings of Taxing Districts.
"Section 1. Be it enacted by the legislature of the state of Mississippi, that all proceedings heretofore had and taken by the board of supervisors of any county in this state, or the board of commissioners or board of mayor and aldermen of any municipality in this state, or the board of commissioners of any drainage district in this state, for the creation of any road district, school district, drainage district or other taxing district, or any chancery court in this state, to provide for the issuance of any and all bonds, notes, certificates, loan warrants or other obligations of any county, road district, school district or subdivision or district thereof, or any municipality, separate school district, or drainage district in the state of Mississippi, or by the Yazoo-Mississippi levee district or the board of commissioners of the Mississippi levee district, are hereby ratified, validated, and confirmed, and all bonds, notes, certificates, loan warrants, or other obligations issued, or to be issued, pursuant to such proceedings, which have heretofore been sold or contracted to be sold at not less than par and accrued interest, shall be and the same are hereby ratified, validated and confirmed, regardless of the law under which the proceedings for which the issuance of said bonds, notes, certificates, loan warrants or other obligations *763 were taken, and notwithstanding any defect or omission or irregularity in the proceedings, providing for the issuance of same or the failure to comply with any law or part of law in reference thereto, and regardless of whether or not said obligations have been delivered, or may be delivered, within one year of the date of the election authorizing the issuance of same, and said bonds shall be valid and binding obligations of said county, road district, school district, or subdivision or district thereof, or any municipality, separate school district or drainage district, or levee district. Provided, said obligations are delivered and paid for within two years from the date of the passage of this act. And in any and all cases where any part of said bond issue has been heretofore sold and delivered the remainder of such issue is hereby validated and may be hereafter sold and delivered under the terms of this act.
"Provided that this act shall not apply to issues of bonds and other certificates of indebtedness the validity of which is now contested by legal proceedings."
The court below having overruled the motion to dissolve the temporary injunction granted, and having allowed an appeal to this court to settle the principles of the case, in effect holding that the twenty thousand dollar bond issue and the levy of taxes for the payment thereof were void, the above chapter, in our opinion, very clearly validates all proceedings in any taxing district of the state looking to the issuance of bonds, and the fact that there is some variance in the title of the act from the body thereof is of but slight weight in determining the clear language and meaning of section 1 of the act; and the divisions thereof are connected by the word "and" — the first validating all proceedings had and taken by the proper authorities of a taxing district providing for the issuance of bonds, and the second validating all bonds issued or to be issued which have heretofore been sold or contracted to be sold. *764
The legislature had the authority by general law, by the passage of a statute curative in its nature and not creative, to validate the proceedings as well as the bonds resulting from the proceedings. This statute is curative in nature and not creative, and the legislature had the authority to provide for the issuance of bonds by the several subordinate taxing districts upon the petition of any given number of taxpayers, and this act is general, and in all respects validates the bonds issued and the tax levied to pay same necessarily.
We think the court below erred in overruling the motion to dissolve the injunction. We are of the opinion that the injunction was improperly granted in this case, and the motion to dissolve same should have been sustained.
Reversed and remanded.
Our attention is called to the fact that the bill filed in this case attacked the validity of the assessment for drainage taxes, and charged that the assessment and levy were based upon a sheet of paper which was illegal and void. It is but just to ourselves to say that the language of the bill so clearly indicated that the attack was upon the bond issue, and the levy of ten cents per acre to pay the indebtedness thus created, together with the fact that counsel's brief was directed to the point decided by this court; that it contains sixteen pages, and only this reference is made therein to the point which is now presented on suggestion of error, "Moreover, we *765 submit to the court that the assessment of lands in this case was nothing but a sheet of paper, not filed, or at least not marked filed, and nothing on its face to import verity, or show a valid assessment of lands," and we treated the entire brief and record as being an attack upon the validity of the bond issue and the levy of taxes. And although the bill charges that "the board of supervisors on the ____ day of November, 1924, illegally and contrary to law, made a levy of thirteen cents an acre against all the lands embraced in said swamp land district, and against the lands aforesaid of complainant located and situated therein, complainant avers and charges that said levy is wholly void," etc., we took it for granted that counsel would have at least introduced the order of the board of supervisors making this levy on the ____ day of November, 1924, if his attack had been seriously intended as against the assessment.
It will be borne in mind that this cause is here on an appeal from a decree overruling a motion to dissolve the temporary injunction granted against the levy of ten cents per acre on the lands in the Homochitto swamp land district, and the prayer of the bill in this respect, together with the injunction issued and the brief of counsel, led us to overlook this point so earnestly urged in the argument and brief of counsel for appellee in this case.
However slight the proof may be, it is apparent that the sheet of paper, with a list of names and number of acres, headed "Homochitto Swamp Land District," not sworn to or certified by the assessor, not filed by the chancery clerk in his office, nor approved by the board of supervisors, is all that appears in the record as being a basis for the assessment of these lands of the Norman-Breaux Lumber Company for the year 1924. While it seems to us that it could hardly be possible to try the case without introducing the order of the board of supervisors, passed in November, imposing a levy of taxes on these lands, yet on this point we do not think that this sheet of paper in the record here, uncertified, not *766 filed in the chancery clerk's office, not approved by the board of supervisors, and not shown to have been certified to the sheriff, can be the basis upon which title to land can rest; and upon the record here we must say that the chancellor was correct in overruling the motion to dissolve the injunction, because there was no valid assessment upon which a valid levy could have been made for the collection of taxes aforesaid by the Swamp Land Act of 1902 (Laws 1902, chapter 70).
In view of the uncertain testimony, we are compelled to give weight to the chancellor's finding on this question of fact. Tried where the record was available to all parties, proper procedure would have required, perhaps, that the party attacking the levy should introduce the order of the board of supervisors imposing the levy, yet the sheet of paper and the testimony about it is in this record uncontradicted.
Section 377 of the Code of 1906, which is a part of the Swamp Land Act, is as follows:
"Separate Additional Assessment. — The tax assessor while making the regular assessment of the lands in said county, as required by law, shall also make a separate additional assessment of all the overflowed lands in each swamp land district. And at the head of each special assessment for a swamp land district shall be distinctly designated the district to which it applies. In case the general assessment of lands is not to be made at the next assessment after such survey is made and such map or plat filed, the assessor shall make such special assessment of such overflowed lands during the time the next personal assessment is required to be made, which special assessment shall stand until the next general assessment of land required by law. All laws as to general assessments of taxes, and all laws applicable to state and county taxes and the sale of lands for lands delinquent taxes, shall apply to such swamp land assessments and taxes, and the sale of such land for delinquent taxes so far as the same are not inconsistent with these provisions. *767 The assessor shall have the same fees for such swamp land assessments as are provided by law for other assessments, and the collector shall have the same fees for collecting such taxes as he receives for collecting state and county taxes."
It will be noted that the general law with reference to the assessment of state and county taxes is applicable here, where not inconsistent with the provisions of the Swamp Land Act. We unhesitatingly say that there is no inconsistency with the provisions of this act in applying the general law relative to the assessment of taxes; that the assessor shall make the assessment by complying with the general law, in that he make affidavit to and certify his assessment and file the same with the chancery clerk. According to the record here, this was not done, and there does not appear to be any proper proceeding upon which the sheriff could sell these lands and the purchaser thereby obtain a good title. And this is true, although the bill shows there is no dispute as to the number of acres owned by the appellee, the Norman-Breaux Lumber Company, in the Homochitto swamp land district, and although it expresses a willingness to pay three cents per acre on its entire acreage, as appears on the uncertified sheet of paper in this record.
We cannot lend our approval to this loose procedure for the forfeiture of lands for nonpayment of taxes, and there must be in the imposition of drainage taxes a substantial compliance with the forms of law required in the assessment of and imposition of state and county taxes. In the case of Mullins v. Shaw,
27 So. 602, 28 So. 958,
"It is necessary not only to have a proper levy of taxes, but it is essential to have a legal assessment of the lands upon which the levy is to operate. The assessment roll is the warrant of the tax collector for collecting the taxes; if that is void, his action in the sale of land under it is void." *768
Assuming that the sheet of paper in this record is the only assessment of these lands for the drainage taxes of 1924 in this drainage district, we unhesitatingly say that the assessment is void, and that the levy based thereon is void, and that an injunction will lie to prevent the collection of taxes for the year 1924 based upon a void assessment and levy.
As the case is to be remanded at all events, it may be that the order of the board of supervisors in November, 1924, will disclose that a valid assessment was filed with it on which to base the levy; otherwise, it would be folly to undertake to collect taxes without a legal assessment of the lands, and without complying with the plain unequivocal provisions of the statutes on the subject. The order now is that this cause be affirmed, in so far as an injunction was granted against the collection of taxes on complainant's land for the year 1924, only as to the ten cents per acre, and the cause is affirmed and remanded.
Suggestion of error sustained in part and overruled in part.
