Opinion
No. 32327.
April 5, 1937. Suggestion of Error Overruled May 17, 1937.
1. MUNICIPAL CORPORATIONS.
Statute, authorizing sales for nonpayment of municipal taxes in manner provided by law for sales of like property for unpaid state and county taxes, does not authorize sale of land for municipal taxes which was not sold on regular day, at a time thereafter designated by order of mayor and board of aldermen (Code 1930, secs. 2585, 3252).
2. MUNICIPAL CORPORATIONS.
Municipality's sale, to third person, of land which town had purchased for municipal taxes at sale held at time provided by statute, would be set aside on owner's payment of municipal taxes, expense incurred by municipality in making sale, and money paid by municipality in redeeming property from sale to state for unpaid county and state taxes, notwithstanding that sale to third person was made on date fixed by order of mayor and board of aldermen, since municipality was without power to fix another day for sale of land not sold at time fixed by statute (Code 1930, secs. 2585, 3252).
APPEAL from the chancery court of Webster county. HON. JAS. A. FINLEY, Chancellor.
Valentine Valentine, of Cleveland, for appellant.
Section 3252, Code of 1930, which appears applicable to sales in municipalities by virtue of section 2585, provides that where any lands have not been sold for taxes, etc., they may be sold thereafter at a time to be designated by order of the board of supervisors, notice thereof to be given as in other cases of tax sales.
In this case the time provided by law for a sale of this property had passed. The town had no authority to make a sale at another time except by statute. While the law may charge a person with knowledge that any lands upon which taxes had not been paid would be sold at the time prescribed by law, it does not charge him with knowledge that such lands will be sold on June 6th, or any other particular date. Here the order must designate what is to be done, what lands are to be sold, and the time and place. The town is not bound to order all lands sold, and did not so order. There is no presumption that the town would order a sale of all lands on which taxes had not been paid. It may order a sale of some and omit others, and it is a matter of common knowledge that this is sometimes done. The town was without authority to proceed with the sale of lands of appellant, or any other lands, without specifically designating such lands in said order as lands to be so dealt with. Since the law did not require these lands to be sold on June 6th, the town could only sell on that date after specifically designating in said order, and the notice thereon, which was not done in this instance by proper and valid description, that the lands of appellant, correctly described and designated as lands to be so sold. The authorities are numerous and uniform that a tax sale made on a wrong day is void, and this sale on June 6, 1932, was a sale on the wrong day so far as the lands of appellant are concerned, not being specifically designated as lands to be sold on that day.
The writers in 44 C.J. 1358, have laid down the general rule that a time not provided by law is a wrong time for a tax sale, and that a municipal tax sale must be made at the time and in the manner provided by law.
O'Flinn v. McInnis, 80 Miss. 125, 31 So. 584; Brown v. Sharp, 31 So. 712.
We are unable to find any statute or rule of law which requires or permits section 3252, Code of 1930, to be applied to governing authorities of a municipality, and while there may be other statutes or cases, we have pointed out those which we believe bear on the question, by way of illustration and distinction, and from which it more clearly appears that section 3252 confers no date-fixing powers upon municipalities for tax sales, and that June 6, 1932, was not a day fixed by law and hence a wrong day for such sale, such sale therefore being void.
McKeigney Latham, of Eupora, for appellees.
A copy of the order made by the mayor and board of aldermen of the town of Eupora for sale of land delinquent for taxes for the year 1931, and not sold at the regular time prescribed by law, appears in the transcript as Exhibit "D" to complainant's bill. We respectfully submit that this order meets the requirements of the law. The sufficiency of the order is settled by the case of Bass v. Batson, 157 So. 530.
Advertisement of land for sale for taxes is not essential to a valid sale.
Code of 1930, secs. 3249, 3252; Laws 1931, chapter 25, section 2.
These sections are applicable to municipal tax sales.
Sections 2584, 2585, 2587, 2588, 2589 and 2590, Code of 1930.
When property delinquent for taxes, from any cause, is not sold by the tax collector at the regular time, the law authorizes the proper authority to fix a day for sale; and when this is done the day so fixed becomes the legal day for sale. And all curative statutes applicable to sales made at the regular time are applicable to sales made on the day fixed by the proper authority. The argument of appellant that his land was sold "on a wrong day" does not square with the law.
The court requests counsel "to point out what other statute or rule of law requires or permits Section 3252 of the Code of 1930 to be applied to the governing authorities of a municipality, and also any other statute or decision of this court bearing thereon." The question has never been decided by this court. No statute, in express words, that we have found, applies section 3252 to municipal authorities, but we think that the intent of the general legislative scheme for the levying and collection of municipal taxes applies it.
The levying and collection of municipal taxes for the purposes of municipal government are quite similar to the levying and collection of taxes for the purposes of state and county government.
The proper functioning of municipal government is as essential within the municipality as is the proper functioning of state and county government within the state and county.
We do not concede that municipal boards have no powers except such as are expressly granted by legislative act. Municipal corporations have such powers as are expressly conferred by the Legislature and such as are conferred by necessary implication.
20 Am. Eng. Ency. L. (2 Ed.), pages 1139, 1140; Nixon v. City of Biloxi, 76 Miss. 810, 25 So. 664; Green v. Hutson, 104 So. 171.
The Legislature has delegated to municipal authorities the power to levy and collect taxes. Taxes levied are worthless unless collected. And it is just as essential that the municipal authorities shall have full power to collect taxes as it is that the state and county authorities shall have full power to collect taxes.
Section 2585, Code of 1930.
But the question recurs, Did the mayor and board of aldermen of the town of Eupora have the power to make the order for the sale of the property on the first Monday of June, 1932? We think they had the power to make the order, and we invoke section 3252 of the Code of 1930, and all of the provisions of the code requiring that municipal taxes shall be collected as state and county taxes are collected.
Section 2393, Code of 1930.
We respectfully submit that the ordinance adopted by the mayor and board of aldermen of the town of Eupora designating Monday, the 6th day of June, 1932, as the day for the sale of property for taxes which, "from any cause," was not sold the first Monday of April, 1932, for taxes, was an ordinance for the collection of municipal taxes, and as such, was an ordinance which was "not repugnant to the laws of the state," but an ordinance entirely consistent with law — consistent with section 3252 of the Code of 1930 which expressly authorizes boards of supervisors to make such orders for the sale of property for state and county taxes.
It is our opinion that the mayor and board of aldermen had the power to make the order in question under section 2393.
Is it the law in the state of Mississippi that, while the county tax collector may "from any cause," either honestly or dishonestly, from accident, mistake, or oversight, "from any cause," fail to sell land at the proper time for taxes, the board of supervisors, because it is a matter of collecting state and county taxes, have all power necessary to take care of the situation by an order entered on the minutes, designating a day on which to make sale for taxes, while under like circumstances, the Legislature intended to deny the municipal authorities like power?
It appears from the complainant's bill of complaint that land owned by him in the town of Eupora was sold for municipal taxes claimed to be due thereon, purchased by the town, and sold by it to the appellee Wofford. On the day the land was sold for municipal taxes, it was also sold by the sheriff of the county for the taxes due thereon to the county and state, and there being no bidder therefor, it was struck off to the state. The town of Eupora, under statutory authority to do so, redeemed the land from this state and county tax sale. Before this sale to Wofford was made, the complainant offered to pay the municipal taxes and all expenses incurred by the town in making the same, and the money paid by it in redeeming the land from the sale to the state, and the appellant is still willing and offers to pay the same to the town.
There is one objection to the validity of the sale for municipal taxes which lies at the threshold of the case. Section 2585, Code 1930, provides that: "Sales for the nonpayment of municipal taxes shall be made by the tax collector at such place, within the corporate limits, as the mayor and board of aldermen may direct . . . upon the same notice, at the same time, and in the same manner as provided by law for sales of like property for unpaid state and county taxes."
The sale of the property here in question was not made at the time provided by the statute for sales of property for unpaid state and county taxes, but was made on June 6, 1932, under an order passed by the mayor and board of aldermen of the town of Eupora fixing that date therefor.
Section 3252, Code 1930, regulating the sale of land for taxes due to the county and state provides that: "If from any cause a sale of any land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors."
No statute has been called to our attention which confers such authority on the governing board of municipalities, unless sections 3 and 31, chapter 188, Laws 1934, so do, as to which it is unnecessary for us to express an opinion for the reason that the sale here in question was made in 1932.
Counsel for appellee say: (1) That the power to fix a date for the sale of land, for municipal taxes not sold on the regular date provided by the statute, is necessarily implied in the grant to a municipality of the power to tax land and to sell it for the payment thereof. But, if mistaken in this, then (2) the sale here is valid because made on a day fixed by an order of the board of supervisors of the county in which the town of Eupora is situated, for the sale of land for delinquent taxes due the state and county.
If the statutes simply granted to municipalities the power to tax land and sell it for the payment thereof, the first of these contentions might be true, but the statutes do not do this, for they specifically provide, particularly in section 2585, when and how land may be sold for municipal taxes.
In order to hold that this order of the municipal authorities for the sale of this land is valid, it will be necessary for us, under the guise of interpretation, to add to section 2585, Code 1930, after the words "for unpaid state and county taxes," the words, "but if from any cause the sale of any land for municipal taxes, which is liable to such sale, shall not be made at the time appointed by law for such sale, it may be sold thereafter at any time designated therefor by an order of the mayor and board of aldermen." This we cannot do.
That the sale for delinquent municipal taxes was here made on a day set by order of the board of supervisors for the sale of land for delinquent taxes not sold on the regular day therefor, is of no consequence. No statute provides that this can be done, and there is nothing in any of the statutes called to our attention that remotely indicates that the Legislature so intended. Had the statute so provided, confusion and inequalities would have resulted therefrom. All of the state and county taxes on land in a municipality may have been paid, or if not, all of the land taxed may have been sold on the statutory day therefor, in which event, no order for a sale thereof would be made by the board of supervisors. Moreover, such an order of the board of supervisors would have embraced only lands not sold at the statutory time for state and county taxes due thereon, and it could very well happen that a part, though not all, of the land in a municipality that was not sold on the statutory day for the sale for municipal taxes thereon would be included in the land ordered to be sold by the board of supervisors. In which event, only a part of such land in the municipality could be sold for the municipal taxes due thereon.
In the absence of legislation conferring on the governing authorities of municipalities the power conferred by it on boards of supervisors by section 3252, Code 1930, no such power can be exercised by them.
The court below should have set aside the sale of the land for municipal taxes, if and when the appellant complied with his offer of payment hereinbefore set forth.
Reversed and remanded.