Robertson v. First National Bank

| Miss. | Oct 15, 1917

SyKES, J.,

delivered the opinion of the court.

This suit was brought in the circuit court of Leflore county by the state revenue agent against the appellee bank for the sum of $10,002.14, taxes claimed to be due the state, county, and levee district for the year of 1916. To the declaration are made exhibits the various proceedings of the board of supervisors of Leflore county relating to these taxes. For an understanding of this opinion it is unnecessary for ns to set out or consider all ^of the various steps taken in this matter. The board of supervisors was dissatisfied with the original assessment against the appellee bank and raised this assessment of its own motion, before any instructions were received by it from the state tax commission. After this was done, a communication was received by the board of supervisors from the above commission, instructing it to increase the assessment of “capital stock, surplus, and undivided profits of banks, less assessment of real estate, forty-two per cent.” The board of supervisors, at a special meeting held in October, appointed a committee of five witnesses to appear before the state board and resist the suggested changes or raises in the assessment of the personal property in the county. The proceedings of this special meeting necessary to an understanding of the opinion are herein set out:

“Minutes, Board of' Supervisors, Leflore County, Mississippi, October Special Term, 1916.

“The State of Mississippi, Leflore County.

“Be it remembered that on this the 20th day of October, A. D. 1916, the board of supervisors of said county met at the courthouse thereof, in the city of Greenwood pursuant to a call by the president of said board, as required by law, which call is in words and figures as follows, to wit:

“ ‘Special Meeting of the Board of Supervisors of Leflore County. — A special meeting of the board of sur pervisors is hereby called to be held at the courthouse, in Greenwood, Mississippi, on Tuesday, October 28, 1916, at ten .o’clock a. m., for the purpose of correcting the county valuations upon the classes of property specified by the board of state tax commissioners, required by the said board of state tax commissioners in its notice, now on file with the clerk of the said board of supervisors, and to take any and all such action with reference thereto as the board may deem proper.

“‘Ordered this the 22d day of October, 1916. J. L. Haley, President of Board of Supervisors,’ ” etc.

These proceedings are made a part of the declaration in the case. It will be noted that the dates above shown are absolutely contradictory. The meeting appears to have been held on the 20th of October, 1916, in pursuance of a call for a special meeting which was to be held on October 28th. The call for the special meeting is dated October 22d. In other words, the call for the special meeting is dated two days after the special meeting is shown to have beén held. This order of the special meeting does not show that it was either published in a newspaper or posted on the bulletin board at the court house.

The record in the case also shows that the state tax commission overruled the contention of the county and ordered the raise to be made in the personal assessment in accordance with its original instructions. Aceordiingly at the regular November meeting of the board of supervisors, the board attempted to comply with the order of the tax commission by making a horizontal raise on all classes of personal property, in. accordance with the instructions of the state tax commission, without making any attempt whatever to equalize among the individual taxpayers the raise in these assessments. There was no notice given of this meeting of the board.

To the declaration a plea of general issue and a number of special pleas were filed. In these special pleas was raised the question of the power of the board of supervisors to raise the assessment of this bank without giving any notice of the same. The various pleadings in the case were filed, and the case was tried, before the decision of this court on the constitutionality df this act in State ex rel. v. Wheatley et al., 113 Miss. 555, 74 So. 427. The revenue agent demurred to all the special pleas except one; he made a motion to strike that plea from the files. The. demurrers and the motion to strike from the file was overruled. The revenue agent declined to plead further and judgment final was rendered in favor of the bank, from • which judgment this appeal is prosecuted.

There are numerous defenses alleged in all these special pleas and argued before us. Our view of the case, however, renders it necessary to consider only the one question of notice. The decision in the "Wheatley Case in construing section 6 of the state tax commission act, holds that under this section, before the board of supervisors can enter into equalization of the taxes, it is incumbent upon its president to give five days’ notice, “by posting at the court house or publishing in a newspaper of the county,” of the special meeting at which action is to be taken. Referring to this notice of the. meeting of the board of supervisors, the court, through Judge Stevens, in part, said:

“Section 6 does provide that the meeting of the board of supervisors is to be held upon notice; this notice is a general notice by publication and for the benefit of the public generally. By this notice every taxpayer is advised of the meeting and has a right to attend; by the terms of this section the board of supervisors are not directed to increase every individual taxpayer and fix an arbitrary percentage, but distributes the burden of increase amongst the individual taxpayers within the class of property affected by the order.”

This notice is the due process of law which brings the individual taxpayers into court and renders the. decision of the board of supervisors binding upon them. Unless this notice be given in accordance with section 6 of the state tax commission act, the board of supervisors is without jurisdiction to equalize these taxes. The order of the board of supervisors at this special October meeting which is above quoted, affirmatively shows that this notice was not given. Having failed to give, this notice the board was without jurisdiction to raise the assessment of this appellee.

Neither was any notice given of the November meeting, when the assessment was finally raised. As to whether or not when notice has -been given under section 6 of the act of the first meeting to consider the equalization, and where at this meeting the board appoints representatives to protest, as was done in this case, and the protest is overruled, and at a regular meeting of the board of supervisors the assessment is raised, it is necessary to give the five days’ notice of the second meeting, we do not now decide, because the failure to give the notice of the first meeting in this case is fatal to the contention of the appellant.

It is too well settled in this state for us to cite authorities, that in this instance the board was acting as a court of limited jurisdiction, and that all of the jurisdictional facts must appear upon the minutes of the board to render its proceedings valid.

Prom the above it follows that the failure of the board of supervisors to give the five days’ notice, as required by section 6 of the state tax commission statute (chapter 98, Laws of 1916), prevented them from acquiring jurisdiction of the appellee, and rendered their orders and proceedings upon which they attempted to raise this assessment absolutely void.

The judgment of the lower court is affirmed.

Affirmed.

Response to Suggestion oe Error.

The declaration of the state revenue agent in this case was bottomed upon the void assessment of the board of supervisors entered at its regular November meeting. In the consideration of this case and the affirmance- of the judgment of the lower court, there was no question raised as to the validity of the order of the board of supervisors at its September term in raising the assessment of this bank to two hundred and twelve thousand, one hundred sixty-six dollars and eighty-six cents; in fact, one or more of the special pleas of the appellee bank claim that this is the assessment upon which the bank is liable for taxes. The judgment of the lower court, and the affirmance thereof by this court, in no way precludes the tax collector from collecting taxes as assessed at the regular September meeting of the board above referred to

The suggestion of error is overruled.