Opinion
February 28, 1949.
1. Taxation — sale for municipal taxes.
Under Chap. 383, Laws (Extra Session) 1932, now Sec. 9923, Code 1942, the municipal tax collector had authority to sell lands, on which municipal taxes had not been paid, on the third Monday of September regardless of whether tax delinquency was such that the property could have been sold on the first Monday of April, there being no distinction as to the two dates of sale if and when the taxes are still due and unpaid.
2. Taxation — tax sale of land owned by municipality at date of assessments invalid.
Lands are assessible for ad valorem taxes as of January 1, and lands owned by a municipality on that date are not assessible for state and county taxes for that year; hence when the municipality owned the property therein, the title of which is brought into question, on Jan. 1, 1937, a tax sale made of it by the county tax collector for the alleged taxes assessed against the property for the year 1937 is invalid and conveys no title. Sec. 9744, Code 1942, Sec. 3108, Code 1930.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Harrison County, D.M. RUSSELL, Chancellor.
Albert Sidney Johnston, Jr., for appellants.
Preliminarily, if the court please, counsel for appellants say that Chapter 383, of the Laws of the Extraordinary Session of the Legislature of 1932, relied on by counsel for appellees, does not apply to this case for the obvious reasons that appellee did not elect to pay taxes to the City of Biloxi for the year 1932, in stallments, and did not pay the first installment by February 1, 1933, as required by said Act. He paid no taxes on said lot to the City of Biloxi for the year 1932, in the year 1933 or any other year. He paid the City of Biloxi for a quit-claim deed in September, 1937, on the 17th day thereof.
Appellee will contend that by virtue of Chapter 383, Extraordinary Session Laws of 1932, municipalities were authorized to sell lands for unpaid municipal taxes in September, and that hence the September, 1933 sale by the City of Biloxi is valid, and that title ripened in the City of Biloxi, and thereafter said Lot 13, Block 5, Bay Terrace, Biloxi, was not liable for state and county taxes.
The falacy of such position is made manifest by even a casual reading of Chapter 383, Extraordinary Session Laws of 1932. Taxpayers were required to pay one-half of their taxes by February 1, one-quarter by May 1, and one quarter by August 1. Section 4 made it the duty of the taxpayer to pay all such taxes on or before the due dates fixed and prescribed in section 1 of the act. If not so paid, the tax collector was required to enforce payment thereof by sale of the land.
Section 5, Chapter 383, Extraordinary Session Laws of 1932, matured all taxes levied and assessed during any year then remaining unpaid. Section 8 provided for April sales and September sales, respectively, first for any taxes remaining due and in arrears after the 15th day of February, and, second, after the first day of August, and required the tax collector to advertise all lands on which all the taxes due and in arrears had not been paid, for sale on the first Monday of April, and the third Monday of September following, "as the case may be". Section 9 of said Act also provided that on the first Monday of April and on the third Monday of September, "as the case may be", if the taxes remained unpaid the tax collector should proceed to sell said land of each delinquent taxpayer.
It is plain to be seen that this statute, providing, as it did, an installment method of paying the taxes on the first day of February, the first day of May, and the first day of August, required the tax collector to sell any land on which the taxes were unpaid on those dates. If taxpayer failed to pay his taxes by the 15th day of February, either in full or the first installment, the tax collector was required to advertise and sell said land, on the first Monday of April. It was only where taxpayer paid his taxes, or the first installment, in February, that he obtained an extension and his land could then only be sold at the September sale.
No statute gave any municipality authority to sell land for delinquent taxes in September, where all of said taxes, or at least the first installment had not been paid by February 1st. The law in force at the time of the tax sale involved in this case required the municipality to sell on the first Monday in April if the first installment was not paid by February 1. Appellee did not avail himself of the installment method of paying taxes. He paid none of his 1932 taxes in the year 1933. As a consequence thereof, the City of Biloxi was required under the law then in force, to sell said land on the first Monday in April. The sale by the City of Biloxi in September, 1933, was absolutely void.
It is respectfully submitted, therefore, that the municipal tax sale on September 18, 1933, for unpaid 1932 taxes due the City of Biloxi, is void, and passed no title to the City of Biloxi, and appellee was duty bound to pay his 1937 taxes to the state and county, and for his failure to do so, the sheriff and tax collector of Harrison County was not only authorized, but directed, to sell said land in September, 1938.
Ross Galloway, for appellees.
The municipal tax sale of September 18, 1933, was made on a day fixed by law for the sale of taxes and on a proper day for such municipal tax sale.
The attack made by appellants on the municipal tax sale of 1933 was that the sale was made at an unauthorized time, that is, the third Monday of September, 1933. The sole question raised was whether the City of Biloxi was authorized to sell this land on the third Monday in September.
Chapter 383 of the Laws of the Extraordinary Session of 1932, which were in effect at the time of this sale, provided as follows: "On the first Monday of April and on the third Monday of September, as the case may be, if the taxes remain unpaid, the Tax Collector shall proceed to sell the land or so much and such parts of the land of each delinquent taxpayer to the highest and best bidder — "
Under the above act of the legislature two regular days of sale were set, and the only condition recited in the act itself is the quoted phrase "if the taxes remain unpaid".
Chapter 383 quoted above provides also that a taxpayer has the right to pay taxes by installments, one-half at the regular time for payment of taxes and the balance in two additional installments thereafter. Appellants in their original brief contend that the authority to sell on the third Monday of September is contingent on the taxpayer paying a first installment on his taxes and then defaulting on the balance of the payments. It is submitted this intention does not appear in the act itself. Not a single word in Chapter 383 implies that the third Monday of September is other than a regular day of sale, and there is no provision to the effect that the September date of sale can be used only in the event of collection by installments.
The legislative enactments providing for sale for taxes on the third Monday of September have been construed several times by this honorable court. The first construction was in the case of Smith v. Hendricks, 181 Miss. 229, 178 So. 819.
The decision in Smith v. Hendricks above was quoted with approval and followed in the case of White v. Noblin, 183 Miss. 92, 183 So. 914, in which the same section was construed and the same question answered.
In 1944 in the case of Jackson v. Webster, 196 Miss. 778, 18 So.2d 298, and in 1947 in the case of Hooper v. Walker, et al., 201 Miss. 158, 29 So.2d 72, this court reiterated that both the first Monday of April and the third Monday of September were regular days of sale, and held that until both such regular days had passed the Board of Supervisors had no authority to set a special day for the sale of taxes. In these cases the court reiterated that the third Monday of September was a regular day of sale.
Title to the property in dispute was in the City of Biloxi, January 1, 1937, and until September 17, 1937, and said property was therefore not assessable for state and county taxes for the year 1937; and a sale based on the non-payment of such assessment was null and void.
Code 1930, Section 3108, provides as follows: "What property exempt. — The following shall be exempt from taxation: ____ (c) All property, real or personal, belonging to the state or to any county, levee board or municipal corporation thereof."
This exemption was construed in the case of Alvis, et al. v. Hicks, et al., 150 Miss. 306, 116 So. 612, a case very similar to the case at bar. In the Alvis case the question was whether a sale in 1924 for unpaid state and county taxes of the year 1923 was valid in view of the fact that the lots had been sold in 1921 for 1920 municipal taxes. This court held that the sale to the state in 1924 was void, and that the property was not assessable for state and county taxes after title had matured in the city.
Peter Tardo, Mary Caro Tardo, and Ferdinand Haase filed their original bill of complaint in the Chancery Court of Harrison County against R.L. Sterling, seeking to confirm their title to Lot 13, Block 5, Bay Terrace addition to the City of Biloxi. The bill also made parties defendant the heirs or devisees of R.L. Sterling, if he be dead, and also all persons having or claiming any legal or equitable interest in the property. Appellee filed an answer and cross-bill seeking confirmation of the title to the property in him, the appellee.
On the trial of the suit in the court below, it was agreed that in 1932 and 1933 the City of Biloxi was not operating under a special charter but was governed by the code sections governing municipalities and by the provisions of chapter 383, Laws of Extraordinary Session of 1932, and that on January 1, 1932 the defendant, R.L. Sterling, was the owner of the property in question and the property was duly and legally assessed to him for taxes for 1932 by the City of Biloxi; that R.L. Sterling did not pay the taxes due thereon to the City of Biloxi nor any installment thereof, and that at the sale of said property for such delinquent taxes on the third Monday of September 1933, it was bought in by the City of Biloxi. The City of Biloxi retained whatever title it obtained at this sale until September 17, 1937, when it executed a quitclaim deed to said property to the said R.L. Sterling for a consideration of $136.60, which represented all of the taxes which would have accrued on the property had R.L. Sterling continued to own it, including the taxes for 1932 for which it was sold. This same property was assessed for state and county taxes for 1937 upon the 1937 assessment roll of Harrison County, and the taxes not being paid, the property was sold for the 1937 delinquent taxes due the state and county on the third Monday of September, 1938, to D. Seward, who, on June 9, 1941, quitclaimed the property to one M.E. Nichols, who, in turn, on April 13, 1945, sold the property to the complainants in the lower court and appellants here.
Appellants attacked the validity of the 1933 sale to the City of Biloxi upon the sole ground that it was sold upon an unlawful day. The appellee attacks the validity of the sale to D. Seward for taxes for 1937 upon the sole ground that on January 1, 1937 the property belonged to the City of Biloxi and was not subject to state and county taxes. There was a final decree in the court below confirming the title in the defendant, R.L. Sterling, and from this decree the complainants in the court below appeal here.
There are only two questions presented for decision by this Court. The first question is: Was the sale to the City of Biloxi, on the third Monday of September 1933, for 1932 taxes a valid sale. As stated above, the validity of this sale is questioned on the sole ground that it was not made on the day fixed by chapter 383 of the Laws of the Extraordinary Session of 1932. It is contended by appellant that said chapter 383, Laws of Extraordinary Session of 1932, provides for the quarterly payment of taxes, authorizing the payment of one-half by February 1st, one quarter by May 1st, and one quarter by August 1st; that section 4 of the act makes it the duty of the taxpayer to pay all such taxes on or before the due dates fixed by section 1; that said act requires the sale on the first Monday of April of all lands on which the February installment has not been paid, and if the lands are not then sold the sheriff and tax collector has no authority to later sell them on the third Monday of September. We do not agree with this contention.
Section 9 of chapter 383, Laws of Extraordinary Session of 1932, so far as material here, reads as follows: "On the first Monday of April and on the third Monday of September, as the case may be, if the taxes remain unpaid, the tax collector shall proceed to sell the land or so much and such parts of the land of each delinquent taxpayer to the highest and best bidder . . .".
This Court held in Smith v. Hendrix, 181 Miss. 229, 178 So. 819, 820, "As to the dates fixed in chapter 25 of the Extraordinary Session, Laws of 1931, the first Monday of April and the third Monday of September, there is no preference or distinction; both were regular days, fixed by law, for the sale of lands for unpaid taxes." This decision is sound and well reasoned, and what was there said applies with equal force to section 9 of chapter 383, Extraordinary Session, Laws of 1932, now Section 9923, Code of 1942. (Hn 1) There is no distinction between the first Monday of April and the third Monday of September as to being proper days to sell lands for unpaid taxes. The tax collector has full authority to advertise and sell, as directed by the statutes, on the first Monday of April, any lands on which the taxes are unpaid. He has the same authority on the third Monday of September, regardless of whether the land could have been lawfully advertised and sold on the first Monday of April. The only question is whether the taxes are still due and unpaid.
The second question for decision is whether or not the sale to D. Seward for state and county taxes for 1937 was a valid sale. The lien for 1937 taxes attached under Section 9744, Code of 1942, on January 1, 1937. That is the date that determines whether the lands were assessable for taxes or exempt from taxation.
The title to the property in question passed to the City of Biloxi under the 1933 sale for 1932 taxes, and not being redeemed, the title became absolute in it. Consequently, the City of Biloxi was the owner thereof on January 1, 1937, it not having ever divested itself of its tax title.
Section 3108, Code of 1930, which was in effect on January 1, 1937, provides there shall be exempt from taxation: "All property, real or personal, belonging to the state or to any county, levee board or municipal corporation thereof." In Alvis et al. v. Hicks et al., 150 Miss. 306, 116 So. 612, it was held that this exemption applies to property bought in by a municipality at its tax sales.
(Hn 2) The property in question was owned by the City of Biloxi on January 1, 1937, and because thereof was exempt from taxation, it being property bought in by the municipality at its tax sale. The attempted assessment of the property for state and county taxes for 1937 was void for the reason the property was exempt from taxation. The assessment being void, the sale of the property to D. Seward, for unpaid taxes, on the third Monday of September, 1938, was a void sale. Seward received no title under the aforesaid void tax sale and conveyed none to M.E. Nichols by his quit-claim deed to him. Nichols had no title to convey and conveyed none by his deed to complainants.
The Chancellor in the court below was manifestly correct in his holdings, and the decree of the lower court is affirmed.
Affirmed.
RESPONSE TO SUGGESTION OF ERROR. (39 So.2d 504)
Appellants have filed a suggestion of error asserting that the opinion herein is erroneous in holding that a municipal tax sale held on the third Monday in September 1933 is valid when the taxpayer had not elected to pay taxes on an installment basis, and appellants insist that said tax sale is controlled by the case of Hemphill v. Wofford, 178 Miss. 687, 173 So. 426, and that under the rule of stare decisis we should follow that case. The Hemphill case involved a municipal tax sale held on June 6th, 1932, pursuant to an order of the board of aldermen fixing that date for the municipal tax sale. At that time there was no statute which authorized a board of aldermen to postpone municipal tax sales to some date not fixed by law, and the court properly held the tax sale void. Chapter 383 of the Laws of the Extraordinary Session of 1932 was adopted December 21, 1932, after the tax sale in the Hemphill case and before the tax sale in the instant case, and it made specific provision for the holding of municipal tax sales on the first Monday in April or the third Monday in September. The tax sale here involved was held on the third Monday in September, which is one of the two dates then authorized and fixed by law. Consequently the Hemphill case is not controlling and the suggestion of error is overruled.
Overruled.