Wolfe v. Murphy

60 Miss. 1 | Miss. | 1882

Cooper, J.,

delivered the opinion of the court.

The assessment was not invalidated because the Board of Supervisors appointed the delinquent assessor to complete the rolls.. It was never contemplated by the Legislature that Boards of Supervisors should, under cover of the authority conferred upon them to appoint some suitable person to complete the assessment, where assessors had failed to do so, appoint the delinquent officer as his own successor, and thu extend the time given to him by the statute for the performance of his official duty. The intention was to incite the of-iicer to the performance of his duty, by -the fear of the loss of his official fees, and no power was given to the board to extend directly or indirectly the time fixed for the return of the rolls by him. But while the members of the board were, by the unauthorized appointment of the delinquent.officer, guilty of a violation of their official duty, for which they were punishable by indictment, the officer, when appointed, was in possession of the office by color of right, and his acts as to third persons were valid as the acts of a de facto officer.

The meeting of the Board of Supervisors, held on the 21st day of July, at Raymond, in pursuance of the order of adjournment made at their July term, was illegal. It was not a term the time of which was fixed by law, nor was it called in the manner prescribed by sect. 1353 of the Code of 1871 ; it was an adjourned meeting, and for such there is no warrant in law. Smith v. Nelson, 57 Miss. 138.

Under the circumstances, however, this meeting was unnecessarily held, and the assessment Avas not invalidated by its invalidity. Utile per inutile non vitiatur.

The Legislature contemplated, that saAre only in exceptional cases, the assessment Avould be completed by the assessor in the manner and within the time prescribed, in Avhich event the tax-payer Avas required to take notice that on and after the first Monday in July, the rolls would be found in the office of the clerk of the Board of Supervisors, and Avould there remain, subject to examination and exception, until the first Monday of August, Avhen the Board of Supervisors would convene to consider all objections filed, and to equalize the assessments. This return of the roll Avas to be made to the clerk of the board, and not to the board itself; it was to remain in his possession during the time alloAved for exceptions, and passed into the custody of the board only when this time had expired. In the meantime, the board could take no step to fix the assessment as a charge on the tax-payer; but it might, as the agent of the State and county, at its July term, examine the roll to determine whether the assessor had complied with-the statutory requirements, and if he had not, it might appoint some other person in bis place to complete the work. If the assessor had performed his duty in the manner, and at the time, prescribed, no order receiving or approving the roll was then made. If the assessor was in default, and another person was appointed to complete the rolls, he was to “ complete, such assessment in the same manner as the assessor is required to do by law, and to make return thereof at some time to be fixed by the board. ” This return was to be made,not to the board, but to their clerk, to whom it would have been returnable if it had been made by the assessor. It was before the clerk that any one desiring to file objections was to go, and he was to file and preserve with the rolls any objections so taken. It is true that sect. 29 of the act of 1878, declares that “ when the assessment shall be made, the board shall immediately assemble to examine and receive the same, and shall, if necessary, appoint some early day to hear and determine objections thereto. ” But nothing more is meant by their receiving and examining the roll, than that they should determine, as between their appointee and the State, just as at their July term- they determine as between the assessor and the State, whether he has performed the duty devolved on him. This is a matter in which the tax-payer has no individual interest, and the failure of the board to meet for that purpose, or the fact that the meeting was not lawfully held, gives him no more right to attack the assessment than he would have had if it had been legally filed by the assessor, and the board had failed to hold its July term.

The failure of the board to remain in continuous session at their August meeting until all objections to the roll had been disposed of, and all proper corrections made, did not render the assessment illegal. The object of the Legislature in providing that the board should sit from day to day, until this should have been done, was that ample time should be given to properly dispose of the exceptions. It was the length of the term, and not its continuity, that was intended to be provided for. It is equivalent to saying the board shall continue in session so long as the business shall require.

No order was made at the August term approving the roll as •corrected, but such order was made at the September term, and ■before the levy of the county taxes. In Davis v. Vanarsdale, 59 Miss. 367, we held that the law contemplated an approval by the board of the assessment, without which it was incomplete. In that case nothing appeared in the record from which we could infer the fact of such approval, but we then thought, as we now decide, that an approval preceding the levy of the •tax, though made at a subsequent term, is sufficient.

After all objections which have been interposed to the assessment have been heard and determined, and all proper corrections made, which things are required to be first done, •ordinarily its approval would naturally follow. If, in approving the assessment, the board acts gwasi-judicially, it rather judges of the assessment as a whole than of any isolated fact or separate part .affecting the rights of any particular person. If any error or irregularity has occurred in any previous proceeding, the individual injured therein'- has, at the proper time, had opportunity for excepting; but if all prior acts have been regular and legal, the approval by the board is a matter as to which no objection would be heard. This order of approval is, in fact, rather a declaration that the assessment is completed than an adjudication of its legality, and it is wholly immaterial to the tax-payer Avhether it is made at one term or another : it is only necessary to be made at all because the Legislature has required it to be done.

It it shown by the record that the meeting of the Board of ■Supervisors on the 21st of July was held at Raymond ; that on the first Monday of August they met at Raymond and continued there in session five days, when they adjourned to meet in Jackson on the Monday next following, on which day they met in Jackson and continued in session two days, when they adjourned until the regular September term, which was held in the town of Raymond, and then an order was made approving the assessment and levying the county taxes.

By an act approved January 27, 1876 (Acts 1876, p. 365), it was enacted “ that hereafter the Board of Supervisors of Hinds County, be, and they -are hereby required to hold sessions, alternately, in the court-house at Raymond, in the Second Judicial Circuit Court District, and at the city of Jackson, in the First District of said Circuit Court, and in the city hall, the court-house of said First District.”

It is contended by counsel for the appellee that this act is mandatory, and that no legal session of the board could be held unless the alternation prescribed had been followed, and therefore that either the August or September term was illegal, as they were both held at Raymond. The objection to such construction is that the legality of any meeting of the board would depend upon that of other precedent sessions, the validity of each of which would in turn rest upon that of other anterior terms. Such construction of the act would produce appalling consequences and confusion, both as to the past and future action of the board. If, as is probable or possible, early in the operation of this act, some blunder or error in judgment was committed, and two successive sessions were held in Raymond or Jackson, are all its subsequent sessions unlawful? Are all contracts made, judgments rendered, orders for the expenditure of county funds and levies of taxes to be held as void, unless," by happy chance, a second error has restored the succession ? One mistake would invalidate all subsequent sessions ; the second error would correct the evil, but the tFird would reproduce it, and so, the validity of any act of this important body would be determined, not by any known or certain standard, but by discovering whether its precedent errors were of an odd or even number.

In Jones v. Burford, 26 Miss. 194, it was decided that a special meeting of the Board of Police, held without the president of tlie board having first given the ten days’ notice prescribed by the statute, was void.

So also as to a session held at a time or place not authorized by law. Gamble v. Witty, 55 Miss. 26 ; Johnson v. Futch, 57 Miss. 73.

But this case is distinguishable from all of these, in this, that in those the act to be done, or the time and place at which the sessions were to be held were definite and fixed by the law, there was no uncertainty, no room for doubt, no investigation of past transactions. If the act of 1876 is peremptory, the legality of any session is not determinable by anything short of an examination of the history of every precedent session since the adoption of the law. The body of to-day, if it should attempt to satisfy itself of the legality of any term proposed to be held, would have to go into an inquiry, touching not only their own past acts, but of those of their predecessors, and of the predecessors of their predecessors. A construction producing a result so mischievous cannot be adopted; the act must be held to be directory, and though binding upon the members of the boards, rendering them liable to prosecution for its wilful disregard, as not making void the sessions of the board, though they are not held in conformity with its requirements.

The failure of the collector to make and file with the clerk of the chancery court separate lists of the land sold to individuals, on or before the first Monday of April succeeding the sale, as directed by sect. 40 of the act of 1878, does not at all affect the title of the purchaser. By sect. 8 of Art. XII. of the Constitution, it is declared that “the courts shall apply the same liberal principles in favor of such titles (tax-titles), as in sales by execution.”

But for this constitutional provision, the title of a purchaser at a sale for taxes would depend upon a strict compliance by the officer with all the statutory requirements, but with us, if the power to sell exists, no mere irregularity in its exercise will avoid the sale. City of Natchez v. Minor, 10 Smed. & M. 255 ; Virden v. Bowers, 55 Miss. 1.

These, views render unnecessary the consideration of the curative act of 1882.

The decree is reversed and cause remanded for a decree in accordance with this decision.