47 Miss. 713 | Miss. | 1873
J. Z. George exhibited his bill in chancery against W. H. Yasser, commissioner, upon whom was devolved the duties of the liquidating levee board, to vacate and cancel a deed made by the sheriff of Leflore county to the board, for lands bought in by them for the levee taxes, on the ground that the sale and deed did not divest the title of the complainant, hut created a cloud upon it.
The bill assails the sale and conveyance upon several grounds. The case is brought up for our revision of the order of the chancellor overruling the defendant’s demurrer thereto.
The arguments of counsel have been mainly addressed to the proposition that the law of 1867, imposing the tax, is invalid because it conflicts with the 20 th section of the 12th article of the constitution.
The scheme of this statute is to create a liquidating board, charged with the duty of auditing all claims properly chargeable against the levee board created by the act of 1852 and its amendments; when found to be just, to take them up, by substituting new evidences of the debts; but this, upon the condition that the creditors will abate the arrearages of interest. In order to provide a fund for the payment of creditors who will accept the terms of the law, a specific tax of five cents, and three cents per acre, is imposed upon the lands within the district. The levee board, under the act of 2d December, 1858, was to continue for five years. By an amendmént made 10th February, 1860, the time was extended two years. The war intervening in 1861 (August), the taxes under the act of 1858 and its amendments, were, by the legislature, suspended during the war, but to be collected for the unexpired seven years after the termination of the war. By subsequent act, in 1862, tax-payers were required to pay interest upon taxes unpaid during the period of suspension. It would seem that the levee board, being interrupted suddenly
The law merely provided a mode of paying pre-existing debts, contracted on the faith of taxes pledged for their redemption. It was a cheap mode, too, apparently in the interest of tax-payers.
The question then is reduced to this: Is it competent for the legislature to tax the district, which was the real debtor for these liabilities, to raise the means of payment ? The courts have not only responded in the affirmative, but have held that the legislature may judge of the validity and equity of the claims of creditors. Nor, it has been held, is it a valid objection that the creditor could not have recovered at law. The legislature may determine in favor of the creditor’s claim, upon grounds of equity and justice, without regard to its validity in a court of law. The legislature may award the tax to pay a single creditor or a class of creditors. Central Park Extension, 19 Abbott, 56; Town of Guilford v. Supervisors of Chenango, 13 N. Y. 143 ; Potter’s Dwarris on Statutes, 413.
But it is said that whilst the power to levy the assessment may exist, yet, in making the impositions,
We are content to refer to our views on this subject, just delivered in Swope v. Bailey. In that case we reached the conclusion that local assessments for local improvements were not embraced in the 20th section of the 12th article, but were referable to the general power of taxation, which was supreme, unless restrained by the constitution of the United States, or of the state. The limitation upon the power in that section only applies and governs taxes levied for the usual ordinary and general purposes of the state, county and incorporated city or town, and does not include special assessments for local public objects for the purpose of ameliorating property and enhancing its value, and also contributing to the general convenience, health or welfare of the community. That, in apportioning such assessments, the legislature or local taxing body may levy them on the basis of special benefits received,, because of the improvement made. And, further, may adopt that mode which, in its discretion, seems equitable and just, either by specific taxes or according to value, or in the instance of a very small locality, as a street or square in a city, either the area of the lots, the front measurement or value may be selected. So, too, in the levee district, composed of several counties and parts of counties, lands in the river counties, which are supposed to receive the largest benefit, may be assessed higher than those more remote. The legislature may classify the lands and tax accordingly.
Another objection is, that the sale was not made at the court-house door of the county. In Koch et al. v. Bridges et al., 45 Miss. 256, it was held that art. 277, Code of 1857, directing all sales by the sheriff, under execution or other process (except as therein provided),
In so far as the law may have publicity and be known, it informs the public that the lands of delinquent tax-payers will be sold, on a certain designated day in the year, and on no other, and at the place appointed. The delinquent tax-payer is thus warned that his land will be sold, and the community, so far as advised of the terms of the law, are advised that all-lands upon which taxes have not been paid will be sold on the particular day, and appointed place. Manifestly, the object of naming day and place was that the people might then and there assemble, and have opportunity to bid, and thus insure ’a fair price for the least parcel of land that would produce the required sum of money. The entire scheme of the law would be defeated, if the sheriff might make the sale either upon another day or at another place.
The statute notifies bidders that these sales will be made at the court-house door; naturally they would assemble there at the hours usual for such sales. The sheriff, from the most improper motives, may put up
It is further averred in the bill that the lands were offered for sale in lots of 40 acres seriatim, for the taxes and costs due on each several parcel, and when no bid was made therefor, each lot was struck off to the levee board, and that a sale was not made by offering a subdivision for the taxes due upon the entire section. The lands were in two several tracts. The injunction of the statute is, to sell the land or so much thereof as may be necessary, etc. There is no difficulty in reaching the legislative intent, to wit: to sell only so much as would suffice to relieve the whole from burden. If the complainant owned an entire section, so much, that is, the least quantity of it, known by subdivisions, that will ■bring the required sum, should be sold. The power to dispose of the whole is to be exerted only when less will not pay the tax and costs. We would suppose, therefore, if a 40 acre lot would not produce enough, then another 40 acres should be added, and so on, until the entire tract were offered.
In Hodge v. Wilson, 12 S. & M. 498 ; Boisgard v. Johnson, 23 Miss. 122, and Baskins v. Wilson, 24 ib. 431, the rules were made in that mode, and held to be valid. In Ray v. Murdock, 36 ib. 696, a sale of oneeithth of a section at a time, and of each eighth until enough was sold to pay the taxes, was held to be authorized by the statute. The section provides,.“ if no. person shall bid the amount of taxes due on any tract of
The rule prescribed in the Revised Code of 1857, art. 35, p. 79, for sale of land for taxes: first, an offer of the smallest legal subdivision; if that does not produce enough, he shall add another similar subdivision, and so on until the requisite amount is produced. The levee law of 1858, having been passed so soon after revision of 1857, would strongly induce the inference that the sales to be made under it must be conducted in the mode prescribed in the code. It is only in the contingency that the “tract,” that is, the section or half section owned by the tax-payer will not, when offered as a whole, produce the amount of taxes and costs, does the statute allow it to be struck off to the treasurer of the board. This strongly implies that it must be offered to other bidders as a whole. We can suppose that bidders would decline to buy an eighth or quarter of a section, who would give ten-fold the amount of dues against it for the entire half. The law intends to guard the property of the tax-payer, as far as practicable, from sacrifice. If it enforces a burden put upon it by sale, it is studious to deprive him of no more of it than is necessary to raise the needed sum. Without pursuing further an examination of the several grounds of the demurrer, or declaring an opinion on
This case having been submitted to us on the points made in the pleadings, and not embraced in the original opinion, we present these additional views :
The second section of the act of 1860 requires bond to be executed on the first Monday of January annually or biennialy, as the sheriff may elect. But no sheriff shall hold his office, or collect said tax, unless be shall execute the bond on or before the first Monday in January, etc., etc.
The fourth section of the act of 1867 requires bonds payable to the state to be executed by the sheriff, and adopts provisions of the statute of 1858, and the
The effect of these statutes is to declare that if the sheriff fails to make a proper bond, his office shall be vacant, and “ he shall not collect the tax.” We construe the words of the law as prohibitory of collection, unless the bond has been executed. The legislature seems to have taken special caution not to permit the sheriff to receive the money from the tax-payers until he has given the requisite bond and security. If he was not competent to receive, clearly he could not take concise measures by a sale.
We should not be inclined to hold a sale for taxes made by a sheriff, under a proper bond, who might be unlawfully in office, to be void for that reason alone. We should apply the rule of the common law, affirmed by the statute, to a tax sale by such officer, as we would to any other official act done by him. If in office by color of right, his official doings as to the public, or persons having an interest in them, are valid. Kimball, Raymond & Co. v. Alcorn & Fisher, 45 Miss. 151. In some of the states it has been held that the rule ought not to have application to a tax sale; in other states the rule is different. The better reason is, not to except a tax sale of de facto sheriff out of the general rule, We only hold that if the sheriff does not execute a proper bond, he cannot collect, because the words of the statute so demand. In the absence of such a declaration, we would only inquire whether the sheriff was in office, exercising all its functions under a claim of title ; and would uphold a tax sale made by him, upon the same principle and for the same reason that we would the service of a writ, or the levy of an execution. Although this bond does not meet the demands of the statute, and would not authorize the sheriff to collect the taxes,
The 13th section of the act of 1867 directs the sheriff, if no person will bid the amount of taxes due on the land, to strike off the same to the “ board constituted under the act, who become the purchasers thereof.” By the eighth section of the act of 1871, in the above contingency, the lands may be struck off to the “ levee commissioner.” The statute allows two years for the redemption of land from the day of sale, and requires that the deed shall be filed in the probate, now chancery, clerk’s office, and remain there unrecorded for that space of time. The clerk is authorized to receive the redemption money and cancel the deed. It would seem to us that the filing of the deed at the proper time is a part of the proceedings by which the sale is completed, and the title vests in the purchaser, and must be complied with. The clerk’s office is the place where the tax debtor would naturally go to effect a redemption, by procuring a cancellation of the tax collector’s deed. It is the more convenient place to the majority of tax-payers, since it is in the county where the lands are situated. These views, in addition to those embraced in the original opinion, cover all the material points made in the bill; all, at least, that we are prepared to express an opinion upon.