Opinion
No. 36169.
October 14, 1946. Suggestion of Error Overruled November 25, 1946.
1. MUNICIPAL CORPORATIONS.
The minutes of a municipality import verity, and evidence will not be received in a collateral action to contradict such record when regular and complete on its face.
2. MUNICIPAL CORPORATIONS.
Where minutes of City of West Point recited that on such date there had been a hearing on matter of equalizing assessment of realty and personalty by city tax assessors, and that the date had previously been duly fixed as the date for hearing objections to assessment rolls, and that publication and advertisement had been duly made to all taxpayers, 30 days prior to such date, but in no previous minutes of city was any mention made of any order fixing time for hearing of objections, it was presumed that previous order was in fact made but by some inadvertence had not been recorded in the minutes, and 30-day notice to taxpayers would be deemed to have been made (Laws 1892, chap. 148, sec. 19, subd. 3).
3. MUNICIPAL CORPORATIONS.
Since special charter of the City of West Point purports to furnish a complete plan of government for the city and as to all of its municipal affairs, city is not required to look to laws governing Code municipalities (Laws 1892, chap. 148, sec. 19, subd. 3).
4. MUNICIPAL CORPORATIONS.
Municipalities may exercise all powers that are reasonably necessary to give effect to the powers granted, and in so doing, they have the choice of the means adapted to the ends and are not confined to one method of operation, in absence of a method prescribed by the statute itself.
5. MUNICIPAL CORPORATIONS.
In view of fact that charter of the City of West Point expressly grants the city the power to make tax sales to itself, without prescribing any method by which it should authenticate such sales, city would use the same method and form with the same contents as in the case of individual purchasers (Laws 1892, chap. 148, sec. 19, subd. 6).
APPEAL from chancery court of Clay county, HON. ALVIS MITCHELL, Chancellor.
Frank A. Critz and B.H. Loving, both of West Point, for appellant.
The failure of the board to fix a date for hearing objections to assessments, and to provide for and give notice thereof, by ordinance, was jurisdictional and rendered all subsequent proceedings void.
Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Sharp v. Smith et al., 180 Miss. 887, 178 So. 595; Merchants Manufacturers Bank et al. v. State, 200 Miss. 291, 25 So.2d 585; Code of 1942, Sec. 9786; West Point Charter, Sec. 19, subdiv. 3; West Point Code, Ch. 3, Sec. 13.
The thirty-day newspaper publication notice that all taxes were due and fixing the time within which they must be paid prescribed to be given by the tax collector is jurisdictional, and must be adjudicated to have been given by the board, for a valid sale to be had, or order of sale to be made, and this was not done.
Federal Land Bank v. Cox, 183 Miss. 250, 183 So. 482; Gordan v. Smith, 154 Miss. 787, 122 So. 762; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Mullins v. Lyle, 183 Miss. 297, 183 So. 696; West Point Charter, Sec. 19, Subdiv. 4; West Point Code, Sec. 18.
The city board has no power to provide three different dates for a sale for 1931 taxes, and the third date so fixed, under which the sale was had, was void for this reason.
Adams v. Greenville, 77 Miss. 881, 27 So. 990; Hemphill v. Wofford et al., 178 Miss. 687, 173 So. 426; West Point Charter, Sec. 19, Subdiv. 6; West Point Code, Ch. 3, Sec. 19; City Ordinances of September 8, 1931, and October 20, 1931.
The city violated its charter as to tax assessments and sales by having the clerk also tax collector, and not having its tax assessor and tax collector one office and officer, and this rendered the assessment and sale void.
West Point Charter, Sec. 2; West Point Code, Sec. 27.
The ordinance of October 20, 1931, fixing the date of sale was void and not established and was inadmissible because the minutes thereof were written and signed by Pearl Miller.
Ackerman v. Choctaw County, supra; Merchants Manufacturers Bank et al. v. State, supra; Code of 1942, Sec. 3636; West Point Code, Sec. 4.
The sale is void because the ordinance therefor provided for, and the sale was had, at a place other than the one designated in the charter.
Harriss v. State ex rel. Dolan, 72 Miss. 960, 18 So. 387; West Point Charter, Sec. 19, Subdiv. 6.
The charter provided for advertisement of the tax sale, and there is no proof of the same and this made the sale void.
West Point Charter, Sec. 19, Subdiv. 6.
The sale was void because the warrant of the mayor was not annexed to the assessment rolls, and other insufficiencies as to the said rolls.
West Point Code, Ch. 3, Sec. 16.
The sale was void because there was no proof of any levy for taxes for the year 1931, by ordinance, as provided for in the city charter.
West Point Charter. Sec. 19, subdiv. 1.
Both the tax collector's deed and the tax list were void and no presumptions occurred from either.
As to the tax deed, see Lear v. Hendrix, 186 Miss. 289, 187 So. 746; Hodge Ship Building Co. v. City of Moss Point, 144 Miss. 657, 110 So. 227; West Point Charter, Sec. 9, subdiv. 6.
As to the tax list, see Seward v. Dogan, 198 Miss. 419, 21 So.2d 292; Clanton v. Callender, 198 Miss. 614, 22 So.2d 487.
As to the presumption, see Code of 1942, Secs. 1739, 3754, 9935.
Thomas J. Tubb, of West Point, for appellee.
The appellee made out a prima facie case when it introduced and established (1) the tax deed by which it acquired title; (2) the pertinent provisions of its charter covering its authority to assess property for taxes, levy taxes, collect taxes, sell land for delinquent taxes, and its authority to purchase at a sale for taxes; and (3) its laws and ordinances governing such, and fixing the day for sale of land for delinquent taxes. Thereupon, the burden shifted to appellant to establish by evidence that the tax sale was void.
Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241; Smith v. Denny Co., 90 Miss. 434, 43 So. 479; Wallace v. Lyle (Miss.), 37 So. 460; Coffee v. Coleman, 85 Miss. 14, 37 So. 499; Herndon v. Mayfield, 79 Miss. 533, 31 So. 103; Lusk et al. v. Seal, 129 Miss. 228, 91 So. 386; Johnson v. Lake, 162 Miss. 227, 139 So. 455; Salter et al. v. Polk, 172 Miss. 263, 159 So. 855; Code of 1930, Secs. 2589, 3273; Code of 1942, Sec. 1739; West Point Charter, Sec. 19.
It is our position (1) that the meeting of the board to fix a date and fixing a date to hear objections is not jurisdictional, and failure to do this does not render the assessment void; (2) that notice to the taxpayers of a date to hear objections is jurisdictional and that it appears affirmatively from this record that notice was given; and (3) the ordinance of May 20, 1931, shows affirmatively that a day was fixed for hearing objections.
Planters' Gin Milling Co. v. City of Greenville, 138 Miss. 876, 103 So. 796; Lear v. Hendrix, 186 Miss. 289, 187 So. 746; Alvis v. Hicks, 150 Miss. 306, 116 So. 612; Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 178 So. 315; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Simpson et al. v. Ricketts, 185 Miss. 280, 186 So. 318; Sharp v. Smith, 180 Miss. 887, 178 So. 595; Merchants Manufacturers Bank et al. v. State, 200 Miss. 291, 25 So.2d 585.
The city's governing board had the power to fix three dates for sale of land for taxes and the sale here is not void because the land was sold on the third date fixed.
West Point Charter, Sec. 19, Pars. 4, 6.
The charter provisions which appellant argues require that the assessor and collector of taxes be one person and the clerk and the treasurer one person, can with equal force be interpreted to mean that each shall be a separate person, or all four offices held by one person. The charter provision is as follows: "Section 2 — The municipal government of said city shall be vested in a mayor and five selectmen and a marshall, and assessor and collector of taxes, a clerk and treasurer, and a city attorney." If this tax assessment and sale is void for the reasons urged by appellant under this point, then all tax assessments, collections and sales of appellee have been void since 1907, the date of the code of laws and ordinances introduced in this cause, and probably since the charter was granted. These laws and ordinances provide that the offices of clerk and collector of taxes may be held or filled by one person and the offices of treasurer and assessor of taxes may be filled by one person.
Appellant contends that the ordinance of October 20, 1931, was inadmissible because the minutes of the board meeting at which it was passed were not signed in person by the city clerk but the clerk's name was signed thereto by Pearl Miller, daughter of the clerk. We do not think this point well taken for three reasons. (1). The minutes were all signed by T.M. Moseley, Jr., mayor of appellee, which is sufficient to establish the authenticity of the minutes. (2). Pearl Miller, who signed the minutes for her father, the clerk, by her initials, was a de facto clerk or deputy clerk and her acts are valid. (3). The ordinance in question was signed by both T.M. Moseley, Jr., mayor, and T.B. Miller, clerk.
Shelby v. Burns, 153 Miss. 392, 121 So. 113; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; In re Validation of Municipal Bonds of Natchez, 188 Miss. 817, 196 So. 258.
Appellant challenges the sale here because of the place the sale was held. The charter of the appellee provides that "such sale shall be at the office of the mayor." At the time the charter of appellee was granted, and continuing until 1907, the government of the appellee was housed in a rental building and such seat of government was known as and called "mayor's office." At the time of the sale here, the seat of government was a city hall. The sale here was held in front of the city hall. The city hall had quarters in it for the city clerk and mayor, which quarters were connected by a door. The change in the name of the place of the seat of government from "mayor's office" to "city hall," in the growth and development of appellee, in no way changes the fundamental requirement that the sale be held at the seat of government of appellee, for that was what the charter required when it was therein called "mayor's office."
Appellant contends that the record does not show that the sale here was advertised as required by the charter. We say appellee made out a prima facie case and the burden was upon appellant to show that the sale was not advertised, or, if advertised, that it was not as required by the charter, if such be a fact.
The warrant of the mayor to the roll and copy thereof by the clerk is not for the protection of the taxpayers, and therefore failure to do these is of no consequence to the taxpayer. The tax assessment roll was in possession of the clerk as a part of the records in his office.
Planters' Gin Milling Co. v. City of Greenville, supra.
Appellant's contention that there was no proof of a levy of taxes for 1931 and that therefore the sale is void is without merit for the reason that the burden was upon appellant to prove that there was no levy of taxes. This he did not attempt to do.
Both the tax deed and the tax list were valid and either of them was sufficient to convey title in appellee to the land involved.
Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Shelby v. Burns, supra; Lear v. Hendrix, supra; Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Clanton v. Callender, 198 Miss. 614, 22 So.2d 487.
Frank A. Critz and B.H. Loving, both of West Point, for appellant, on suggestion of error.
The court's opinion is not based upon the facts presented by the record. In the first instance, we insisted that, as provided by the city charter of the City of West Point, no ordinance fixing the day for the hearing of objections to the assessment rolls was passed, nor was such an ordinance of record in the minutes of the board of mayor and selectment of the City of West Point. In rendering its opinion, the court overlooked a very material feature of the evidence and that is, that the appellee, the City of West Point, as shown by the record, not only agreed that said ordinance was not of record, but further, the appellee agreed such ordinance was not passed, the agreement being that there was no ordinance of record and that if said ordinance had been passed it would have been of record in said minute book. In other words, this is an agreement that no ordinance was ever passed, and the question is jurisdictional and the case should have been reversed.
Town of Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757; Arkansas Fuel Oil Co. v. City of Oxford, 188 Miss. 455, 195 So. 316; Chinn v. City of Biloxi, 183 Miss. 27, 183 So. 375; Walsh v. Public Service Co., 30 A.2d 494; Stardish v. Stardish, 49 N.Y.2d 538; Shefts v. Oklahoma, 137 P.2d 589; Lynch v. State ex rel. Kellebrew, 166 S.W.2d 397; Planters Bank v. Hopkinsville, 159 S.W.2d 25; Stone v. Pewee, Ky., 140 S.W.2d 1052; Collins v. City of Schenectady, 10 N.Y.S.2d 303; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Craff v. Uvalde Paving Co., 23 S.W.2d 300; City of Highland Park, Ky., v. Reker, 173 Ky. 206, 190 S.W. 706; Town of Mount Pleasant v. Eversole, 29 Ky. 830, 96 S.W. 478; 43 C.J. 513-514; 37 Am. Jur. 677.
The City of West Point in this State operates under a special municipal charter granted by the Legislature by Chapter 148, Laws 1892, approved March 23, 1892. Appellant Hawkins is the former owner of the city lot involved in this suit. The lot was sold to the city for the delinquent city taxes thereon for the year 1931. The bill is by the city to confirm its tax title against the appellant, in defense of which appellant answered assigning various reasons why, as he says, the tax title was not good, and he has argued 10 of such alleged grounds on this appeal. There are two principal grounds as follows:
In the third subparagraph of Section 19 of the special charter of the city it is required of the governing authorities, by ordinance, — "To fix some day, not less than thirty days after the time fixed for the completion of such assessment, to hear objection to the assessments, which objections shall be made in writing, and to examine the same, and to give notice, by publication in some newspaper published in said city, or by posting notices in three or more public places in said city, of the time and place fixed for such hearng and examination, and at such time and place they shall hear all objections, and shall have power to approve, change or correct, increase or diminish, such assessment as shall be proper," etc.
It is admitted that before May 20, 1931, no order appears on the minutes fixing a time for the hearing of objections, but on the minutes of that day there appears the following: "There came on for consideration and hearing before the Board the matter of equalizing the assessment of real and personal property made by the City Tax Assessor on the property in the City of West Point for the year 1931, and this date having heretofore been duly fixed as the day for hearing objections to said assessment rolls, the publication and advertisement having been duly made to all of the taxpayers of said city for thirty (30) days prior to this date to present their objections to said rolls on or before May 19, 1931, and said Board having heard and considered all objections duly made and filed . . ." An ordinance which had been in effect 10 years fixed the time of the regular monthly meetings of the city council for the second Tuesday of each month, and from day to day thereafter. This for May 1931 would be the 12th. On that day the minutes show that the Mayor and Board of Aldermen met and among the orders adopted was the following: "This regular meeting stands continued to meet again at 7:30 P.M. Tuesday night, May 19th 1931."
It is the contention of appellant that the making of the order mentioned by the statute fixing the time for hearing objections to the assessment is jurisdictional; and that the fact that no such order appears on the minutes is conclusive that it was not made, — that the recital in the minutes of May 20, 1931, above quoted is thus proved to be untrue. No authority is cited by appellant to the effect that, when the minutes of a municipality recite that a previous order was made, the fact that no such order can be found on the previous minutes is conclusive that no such previous order was actually made; and upon a reasonably diligent search we have not been able to find such case precisely in point.
It is beyond doubt the rule, and it is well settled, that the minutes of a municipality import verity and that evidence will not be received in a collateral action to vary or contradict such record when regular and complete on its face. See 37 Am. Jur. p. 677, and the many cases gathered in the notes of Campbell v. Hackensack, 115 N.J.L. 209, 178 A. 794, 98 A.L.R. at p. 1229 et seq. To preserve the integrity of that rule it must be presumed in the light of the quoted recitals of the minutes of May 20, 1931, that the previous order therein mentioned was in fact made but that by some inadvertance it failed to be recorded. The order having been made it was not jurisdictional that it be actually entered on the minutes, the jurisdictional elements thence being that due notice shall be given and that on the day fixed by the order and notice the governing authorities shall be present and shall hear all objections, and this the minutes show was done. See Alvis v. Hicks, 150 Miss. 306, 318, 116 So. 612.
It might well have been argued, although we do not base decision on the point, that inasmuch as the second Monday in each month had been fixed by recorded ordinance as the time for the regular meetings of the council at which any and all municipal business may be transacted, and inasmuch as said regular May meeting, by order regularly entered, had been recessed to May 19, 1931, as has been heretofore shown, all that was necessary was to give the required public notice that at the meeting of May 19, 1931, the matter of equalization would be considered. That such notice was given was sufficiently evidenced by the quoted minutes of May 20th, as to which see Alvis v. Hicks, supra.
In the sixth subparagraph of Section 19 of the charter of said city there is found, as regards tax deeds by the city tax collector, the following provisions, which we quote to the extent deemed here material: "The said [tax] collector shall make to the purchaser at said sale a deed of conveyance substantially like the deed prescribed by the general laws of Mississippi to be made by tax collectors of State and county taxes, and such conveyances shall vest in the purchaser or purchasers a perfect title to the property sold for taxes, damages or costs, subject to the right of redemption, and such conveyance shall be prima facie evidence in all courts that the assessment and sale of the property was legal and valid; and such conveyance shall only be invalidated only for the same causes or grounds that a State and county tax collector's conveyance may be . . .; and in case the property is struck off to the City of West Point, which the collector shall do in case the full amount of taxes, damages and costs is not bid and paid, the title to the property or failure to reclaim shall vest absolutely in the city . . ."
It will be observed that there is no express provision regulating the form or character of the tax conveyance to be made to the city. The tax deed made to the city by the tax collector was in the same form with the same contents as those made to individual purchasers. Appellant contends that no such deed to the city was authorized but that the only method of conveyance to the city was by tax sales list as provided in the general chapter on municipalities.
There are two answers to this contention. The first is that there was no provision in the general law at the time the special charter of the city was adopted and approved, for the tax conveyance to a municipality to be made by list. Such a provision as to municipalities appeared for the first time in the general chapter on Municipalities in the Code of 1892, but this Code did not go into effect until November 1, 1892.
In the second place this special charter purported to furnish a complete plan for the government of said city and as to all of its municipal affairs and such being the case it was not required to look to laws governing Code municipalities but to its own procedure and its own government, as to which see City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888. This brings into operation, therefore, the rule that municipalities may exercise all powers which are reasonably necessary to give effect to the powers granted, and in so doing they have the choice of the means adapted to the ends, and are not confined to one method of operation, — this in the absence of a method prescribed by the statute itself. 37 Am. Jur. p. 731; 43 C.J. p. 193. The city authorities were expressly granted the power to make tax sales to the city and inasmuch as no method by which they should authenticate such sales was provided by the governing statute, it was competent for them to choose the method by tax deed as was done, and with all the effect of tax deeds to individuals.
We have carefully examined the other grounds assigned but we find none of them well taken. We do not pursue them in detail, it being our observation that elaborate discussions of the clumsy provisions of these special municipal charters, of which several in number still linger in this State, do not pay out anything of much value to the body of the law.
Affirmed.
Sydney Smith, C.J., did not participate in this decision.