Opinion
December 31, 1948. On Suggestion of Error.
1. Statutes — in pari materia — construction of.
The section of the code dealing with meetings of the board of supervisors for the transaction of business under the revenue law and the section prescribing the duties of the clerk in keeping the minutes of the board are in pari materia and must be construed together, and if possible read into each other so as to make a consistent whole. Sections 2877 and 2886, Code 1942.
2. Board of supervisors — minutes — signed by president of board, when may be.
Although the statute requires the minutes of the board of supervisors for each day to be signed by the president of the board, he may so sign for each day on the last day of the term before the final adjournment. Section 2877, 2886, Code 1942.
3. Board of supervisors — recess to next succeeding business day of term minutes.
Inasmuch as board of supervisors may lawfully meet from one day to the next succeeding business day of the term without the signing of the minutes of any previous day, for that the president has until the last day of the term to sign them, the failure of the president to sign the minutes of a day recessing to the next succeeding business day does not invalidate the proceedings had on the said succeeding day provided the minutes of that day have been signed by the president before final adjournment. It is only the unsigned minutes of the proceedings of a preceding particular day that are invalidated by the failure to sign that day's minutes.
4. Statutes — new and independent subject matter — when not in pari materia with older statute.
In enacting Section 9770, Code 1942, dealing with the assessment of oil and gas interests, the legislature was providing for an entirely new and independent subject matter as compared with the ancient statute, now Section 9772, Code 1942, which prescribed the manner in which surface interests should be assessed and therefore the two statutes are not to be considered as in pari materia, although the new statute for some of its mechanical details may be in a measure dependent upon the old.
5. Oil and gas — assessment of fractional undivided interests.
Section 9770, Code of 1942, permits and requires the separate assessment of undivided interests in oil and gas to each owner of such fractional undivided interest, so far as not exempted by Chapter 134, Laws 1944.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Wayne County ARTHUR G. BUSBY, Chancellor.
Ben Stevens and Jones Ray and Robt. L. Calhoun, for appellant.
Under point No. I, appellees argue in Sub-head A that there was no valid assessment of real estate in Wayne County for the years 1940-41 because of the failure of the president of the Board of Supervisors to sign the minutes of the Board for July 13, 1940.
The failure of the president of the Board to sign the minutes for July 13, 1940, in no wise affected what was done on July 15, 1940. If the minutes of July 13th are ineffective, then the minutes of July 10th, when the minutes were signed, were effective to carry the meeting over until July 15, 1940, for certainly there had been no order of final adjournment. We stress that whatever may be the effect of the failure of the president to sign the minutes of a particular day, in so far as that day's minutes are concerned it cannot have the effect of automatically adjourning a meeting of the Board which the law makes it mandatory for the Board to hold and to sit from day to day until the work required of the Board at the July meeting has been done, and, if it be conceded that the minutes of July 13, 1940, are ineffective, that fact does not destroy the effectiveness of the minutes of the meeting of July 15, 1940, because each day's minutes are a separate unit, and it is to be remembered that the Board was sitting not in its discretion but under the mandatory injunction of the law that it must sit from day to day at the July meeting until it finishes equalizing the assessment rolls. To hold that the failure of the president of the Board to sign any one day's minutes adjourns the Board is in effect to hold that the statute is not operative and to render the work of the Board impossible through a clerical oversight, and the legislature did not intend that such oversight should have the effect of automatically adjourning the meeting of the Board or that the failure to sign the minutes of any one day should invalidate the minutes of other days, either prior or subsequent, which were duly signed. The statute requiring the Board to sit from day to day at the July meeting for the purpose of equalizing assessments cannot be nullified nor its mandatory features destroyed by a mere clerical error of the Board. The duty imposed upon them is mandatory and one that must be performed, and the statute fixes when the Board shall adjourn at the July meeting when it says that it shall sit until the rolls have been equalized.
We submit that the failure of the president of the Board to sign the minutes of July 13th still left the adjourning order of July 10th in full force and effect, and, if the minutes of July 13th are not valid, then the situation is just as though the minutes of July 10th read that the Board should reconvene on July 15th, which it did.
Under Point No. II, counsel argues that the enactment of Section 9770, Code of 1942, (Section 3146 of Code of 1930) was not needed in order to have separate assessments of separately owned estates in real estate.
We submit that the argument is beside the point, for the cold fact remains that we do have the law which is Section 9770 of the Code of 1942, and that statute controls.
It is to be noted that Section 9770 is much broader than any of the decisions which counsel for appellees has cited under this point. It is true that the court has held, prior to the enactment of Section 9770, Code of 1942, which was passed in 1930, that timber could be separately assessed under the then existing statutes, but the right to assess none the less arose from statute then in force, and, in deciding Fox v. Pearl River Lumber Company, 80 Miss. 1, 31 So. 583, which is one of the cases cited by counsel, the court made refesence to the various statutes which authorize the assessment involved in that case, and that is true of the other decisions relied on by appellees.
As we said above, however, we do not see where that proposition in any wise enters into the decision of this case. It certainly throws no light upon the meaning of Section 9770, nor does it give any aid to the court in construing what is assessable under Section 9770 or how it shall be assessed or how it shall be sold.
Under Point No. III, counsel for appellees argues that Section 9770 could not be operative without the aid of Sections 9769 and 9772.
We don't see where Section 9769 touches the case at bar in any respect. It simply deals with the duty of the tax assessor and with the mechanics of making up the assessment rolls, while Section 9770 is in addition to 9769 and outlines additional elements of property which are to be taxed. Section 9772 deals entirely with the mechanics of making up the assessment rolls.
Much stress is placed by appellees upon the language contained in Section 9772 to the effect that the tax collector shall only collect the taxes on one assessment, but that does not decide what is assessable and salable for taxes, and that is the real question before the court. We contend that a fractional mineral interest is assessable and that it is salable for taxes even though it be an undivided fractional interest, if it be sold separately and apart from and independently of the rights and interests owned in the surface by other people. The statute, Section 9770, even makes a leasehold interest taxable. In fact, Section 9770 makes taxable every right in real estate which can be owned separately and apart from and independently of the surface rights, and it enumerates those elements in great detail. This section stands by itself in so far as it defines what shall be assessed for taxes and sold for taxes if the owner does not pay the taxes, and, as we see it, neither Section 9769 nor Section 9772 has anything to do with the case, and those two sections certainly do not control the operation of Section 9770.
Under Point No. IV, counsel for appellee argues that the words "interest" and "interests", as used in Section 9770, refer to the name of the interest or element enumerated rather than to the quantum of the interest or element enumerated.
The argument is ingenuous but, we submit, is not to the point. As we see the statute, Section 9770, it certainly does enumerate various elements which may be separately taxed, and the very fact that the quantum of the interest is not mentioned gives significance and strength to our view that any quantum is taxable under the statute.
We argued in our original briefs that if fractional mineral interests are held to be non-taxable there would be many highly valuable interests in real estate which would never become subject to taxation, because some fractional part of mineral interests will, in the vast majority of cases, be retained by the surface owner, and the assessment of the surface to him of necessity carries with it the assessment of the fractional interest he has retained. It was clearly the intent of the legislature to make all such interests revenue-producing, and, to say that a man who owns three-fourths of valuable mineral interests and who is getting an income from that fractional interest should not be taxed on his interest because the other one-fourth is taxed to the surface owner, is simply to say that the legislature intended to permit tax-dodging and to permit valuable interests in real estate to go untaxed. That is not the policy of our State, either by its Constitution or by its statutes. As a matter of fact, except in the case where the legislature has clearly granted an exemption, the mandate of both the Constitution and the statutes is that all property shall be taxed.
It is to be noted that Section 9770 provides that the assessor shall determine the value of "said interest or interests", and that he shall determine the value in the same manner as other property is valued.
Under Point V, counsel for the appellee argues that because the words "undivided interests" do not appear in Section 9770, Code of 1942, such undivided interests are not assessable. He further argues that where the undivided interests in the elements enumerated are owned in co-tenancy with the owner of the surface they are not separately assessable.
We earnestly submit that the statute says on its face to the contrary. It is true that the phrase "undivided interests" is not used, but, on the other hand, the statute says plainly, "All interests in real estate herein enumerated shall be returned to the tax assessor", and certainly an undivided interest would be included in the phrase "all interests".
There is nothing in the decisions cited by counsel under Point No. V which really supports his contention, as we see it.
Under Point No. VI, counsel argues that the tax collector had no power under Section 9770 to sell an undivided fractional interest in minerals.
The contention, of course, gets back to the question of whether such interests are assessable. If they are assessable, they are salable, and it is to be noted that the statute says, "All of such interests shall be assessed and taxed separately from such surface rights . . . and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes".
Counsel has several times cited Stevenson v. Reed, 90 Miss. 341, 43 So. 433, and Fountain v. Joullian, 110 Miss. 812, 71 So. 2, and similar cases. Those cases did not deal with the power of assessment or the duty of the assessor. They dealt with the power of the sheriff to break up the assessment into fractional parts and to collect from different owners taxes on the fractional parts, and the court simply held that the sheriff had no such power, but it is a far different thing when the legislature says that fractional interests and separately owned interest shall be assessable and salable for taxes, for then it becomes the duty of the assessor to so assess and the duty of the sheriff to so sell according to the assessment if the taxes were not paid.
Counsel has a good deal to say in his response to the suggestion of error about case law. Case law, of course, controls where there is no statute, but where there is a statute, it controls, and we repeat what we have several times said: That Section 9770 of the Code of 1942 is sui generis and sui juris and stands alone. It was enacted for a purpose, and that purpose was to make taxable every valuable element of real estate when those elements were owned independently from the surface, and the court knows that many such interests are highly valuable and bring high prices on the open market.
In conclusion, we wish to say that we adopt, on behalf of the appellant, the brief by Messrs. Alexander and Alexander in response to counsel for appellees. In their brief, cases are cited as to the meaning of the words "interest" and "interests", and we shall not burden the court with a repetition of them.
Alexander Alexander, amici curiae, for appellant.
Are section 9770 and 9772 in pari materia? What is the exact meaning of "pari materia": The latest edition of Black's Law Dictionary says: "Pari materia — of the same matter — on the same subject."
Although incorporated in the Code of 1942 as Section 9772, this act was passed in the year 1848. Its purpose was to formulate a method for assessment of lands — lands as then known and understood. At the time of passage of the act oil and gas as underlying minerals were unknown.
"A study of the law as it was prior to enactment of the statute to be construed is only profitable insofar as it may aid in the interpretation of the act, and the rule of construction of statutes in pari materia does not permit the use of a previous statute to control the plain language of a subsequent statute. Where a statute is clear on its face, and, when standing alone, is fairly susceptible of but one construction, the courts will adopt that construction and refuse to consider prior statutes on the same subject. Prior acts may be resorted to to solve but not to create an ambiguity. Especially is it true that the earlier act cannot be looked to to determine the meaning of the later, if the words of the subsequent act or the circumstances under which it is enacted evinced a changed intion on the part of the legislature." 50 Am. Jur. p. 357, paragraph 355.
The force of this rule is apparent when we recognize the fact that many years later laws were passed providing for the separate taxation of timber, whether owned by the surface owner. Opponents in their brief argue that the passage of Section 9770 was merely enacting into statutory law what the courts had decided as "case law". Their subject heading on this point says: "Enactment of Section 9770 of the Code of 1942 (Section 3146, Code of 1930) was not needed in order to have separate assessments of separately owned estates in real estate."
Whether by statutory enactment or case law, these legal decisions such as Fox v. Pearl River Lumber Company, 80 Miss. 1, 31 So. 583, and other decisions decided before Section 9770 was enacted in 1930, and the passage of Section 9770 proves beyond a doubt that Section 9772 did not cover these various interests in land.
Whether Section 9770 is merely the adoption into a statute what was already established as case law is immaterial to this discussion. We are dealing with the statute as enacted and the factors that influenced the legislature in its adoption may have been many. The prime fact is that the statute for the first time was providing for separate taxation of certain interests or elements which were above and beneath the surface of the land and which are different subjects, different matters.
"It is a fundamental rule of statutory construction that sections and acts in pari materia, and all parts thereof, should be construed together, and compared with each other. The object of the rule is to ascertain and carry into effect the intention of the legislature. It proceeds upon the supposition that the several statutes were governed by one spirit and policy, and were intended to be consistent and harmonious in their several parts and provisions. However, no mere collation of other statutes is decisive in determining what a particular statute means. Moreover, as in the case of all other rules of statutory construction, the necessity of applying the rule as to the construction of statutes in pari materia exists only where the terms of the statute to be construed are ambiguous, or its significance doubtful. Statutes in pari materia may not be resorted to to control the clear language of the statute under consideration." 50 Am. Jur., P. 343, Paragraph 348.
We think we are all in accord that if Sections 9770 and 9772 are in pari materia, then they should be construed together, and both should be given effect. The paramount question is — are they in pari materia, and did Section 9772 deal with the same matters as those contained in Section 9770?
Section 9772 deals with land, as defined by the surface. It deals with "parcels", "same tract" and subdivisions, and the listing of such surface parcels for taxation. The assessment method provided for deals with tracts or parcels, easily ascertainable and subject to descriptions by governmental subdivisions or metes and bounds. The statute does provide that there shall be "one assessment" of the "same tract or parcel". We agree that the statute prohibits assessment of fractional undivided interests in the various tracts. In such cases of undivided ownership the assessor must indicate on the assessment roll that more than one person claims to be the owner of the tract. We do not find the word "interests" or "interest" mentioned in Section 9772.
It is possible in our original brief as amicus curiae we treated Section 9770 as amending or repealing Section 9772, if Section 9772 can be construed to cover all interests in land that come within the generic term "Land". A more careful analysis of the statutes now convinces us that Section 9770 is not an amendment of nor was it intended to repeal Section 9772. Both statutes deal with different subjects and different matters. Section 9772 deals with surface lands; Section 9770 deals with valuable products of the lands, both surface and sub-surface, which have value independent of the surface, and which have uniformly been subject to separate ownership and separate taxation.
Thus our conclusion is inescapable that the two statutes are not in pari materia. They are independent and deal with separate subjects. It matters little if these subjects are part of the same general subject. Therefore, we respectfully submit that the prohibition regarding the separate assessment of undivided interests in surface lands in Section 9772 has no bearing whatever on the provisions of Section 9770, which we contend is applicable to separately owned interests in lands, whether fractional or not, as outlined in the statute.
What is the full import of the words "interest" or "interests" in Section 9770 and are these words synonymous with the undivided ownership or tenancy in common of the same parcel of land as set out in Section 9772?
The words "interest in lands" embrace every conceivable right in the property, of uses and benefits therein, liens or encumbrances or any character of estate therein.
Words and Phrases, Permanent Edition, Vol. 22, contains the following under "Interest in Property": "While the word 'interest' in some connections includes title in others, it includes advantages less than title. In Re Horn's Estate, 72 A. 791, 223 Pa. 415. 'Interest', speaking legally and specifically, means a right in property, or some of those uses or benefits from which the property is inseparable. Fletcher v. Winnfield Bottling Works, 160 La. 261, 107 So. 103. 'Interest' is the broadest term applicable to claims in or on real estate, including any right, title, or estate in, or lien on real estate. Mason's Minn. St. 1927, P. 8459, 8460. Hatlestad v. Mutual Trust Life Ins. Co., 268 N.W. 665, 667, 197 Minn. 640. The word 'interest' is the broadest term applicable to claims in or upon real estate, and in its ordinary signification among men of all classes it is broad enough to include any right, title, or estate in, or lien upon, real estate. Caddo Holding Corporation v. Morrow (Tex.) 41 S.W.2d 92, 94. The word 'interest', as applied to property, is broader than the word 'title'. It is practically synonymous with the word 'estate'. Widincamp v. Phenix Ins. Co. of Brooklyn, 62 S.E. 478, 4 Ga. App. 759. The word 'interest' often is used to express or represent an 'estate', as, for instance, an interest in a tract of land is often used as meaning the same thing as an estate in a tract of land. These two words are not infrequently used as convertible terms. Hurst v. Hurst, 7 W. Va. 289, 297."
Note specifically how the courts have treated mineral rights. In Words and Phrases, pages 78 and 79, we have examined all the cases cited under the heading "Rights as to minerals, etc." and we find no case that holds, for taxation or otherwise, that mineral interests must necessarily refer to all of the mineral interests. On the contrary, note the following: Words and Phrases Permanent Edition, Vol. 22, pages 78 and 79: "A conveyance of an interest in the oil, gas, and minerals in and under a tract of land is a conveyance of an 'interest in the land'. Crabb v. Bell, Tex., 220 S.W. 623, 624. Right to receive part or share of oil extracted from land is 'interest in land', which may be sold or otherwise disposed of by owner. U.S. v. Looney (C.C.A. La.) 29 F.2d 884, 885. In Louisiana, right to part of oil or gas produced, whether right resides in lessee or, in lessor as royalty, is 'interest in land' which owner can convey in whole or part. Pugh v. Commissioner of Internal Revenue (C.C.A.) 49 F.2d 76, 78. A three-eights interest in mineral rights to land constituted an 'interest in the land' which owner of mineral rights was entitled to protect from sale for taxes. Cochran v. Godard, 78 P.2d 692, 693, 182 Okla. 506. In view of fact that mineral rights constitute part of realty, and create an estate of freehold, and are capable of being severed from fee, held, that plaintiffs owning undivided one-half interest in mineral rights, have such a separate and distinct 'interest' in land that the partition statute, Rev. St. art. 6096, as amended by Acts 35th Leg., 1917, c. 105, P. 1, Vernon's Ann. Civ. St. art. 6082, authorizes a partition of it. Henderson v. Chesley, Tex., 273 S.W. 229, 302."
Since the passage of Section 9770 in 1930 up to the decision announced in this case, in June, 1948, — a period of eighteen years, this section has been construed by tax assessors, sheriffs, the State Tax Commissioner, and the State Tax Collector to render taxable separately owned fractional mineral and leasehold interests. Although some of the information supplied may not be proven in the record, it is based on facts which are universally recognized, probably arising to the dignity of judicial knowledge.
Buchanan Montgomery, for appellees.
There was no valid assessment of real estate in Wayne County, Mississippi, for the years 1940-41, and there was no valid process for the tax payers by reason of the failure of the president of the Board of Supervisors to sign the minutes of the Board for July 13, 1940.
The Board of Supervisors is required to issue and publish the notice to tax payers of the meeting to be held in August of assessment years to hear objections to assessments under the provisions of Section 3162 of the Code of 1930, Section 9786 of the Code of 1942. This notice can only be given by the Board of Supervisors. (See State ex rel. Knox, Atty. Gen. v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11).
The Board of Supervisors can act only through its minutes and at a legal meeting. Gordan v. Smith, 154 Miss. 787, 122 So. 762; Merchants Manufacturers Bank v. State, 200 Miss. 291, 25 So.2d 585.
The failure of the president of the Board of Supervisors to sign the minutes of the board for July 13, 1940, made ineffective the minutes of that date, including the order providing for the reconvening of the board on July 15, 1940, when the order for preliminary approval of the assessment rolls after equalization was entered, together with the order directing the issuance of notice to tax payers. Therefore, there was no legal equalification of the assessment rolls, and there was no due process for the tax payers, and the assessment of real property for the years 1940-41 in Wayne County was wholly void. The tax sales of September 21, 1942, for 1941 taxes, were wholly void for want of due process. Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Brand v. Board of Supervisors of Newton County, 198 Miss. 131, 21 So.2d 579; Merchants Manufacturers Bank v. State, supra.
Enactment of Section 9770 of the Code of 1942 (Section 3146, Code of 1930) was not needed in order to have separate assessments of separately owned estates in real estate.
The enactment of Section 3146 of the Code of 1930 was done to put into the scheme of ad valorem assessment and taxation of real estate by legislative enactment that which had for almost 30 years been recognized as case law in this State. The Legislature in enacting Section 3146, Code of 1930 as Chapter 171 of the Laws of 1930 recognized the fact that separately owned estates in land and land itself, where there had been no severance of estates, were all a part and parcel of the subject matter of ad valorem assessment of real estate. The legislature knew that for many years separately owned buildings and separately owned tracts of timber had been separately assessed separately and apart from and independently of the surface of the land on which they stood, and when the legislature enacted into statute law that which had been case law for about 30 years, it adopted as a part of such statute so enacted the controlling decisions of the Supreme Court relative to the case law enacted into statute law. In recognition of this in the enactment of Section 3146 of the Code of 1930, the legislature provided that when such separately severed and owned estates in land were sold for taxes they "shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes".
Section 3146, Code of 1930 (Section 9770, Code of 1942) must be considered together with Sections 9769 and 9772 of the Code of 1942, as being in pari materia as a part of the same subject matter. The only way a tax sale can be made under a separate assessment made under Section 9770 is "in the same manner as other interests in real estate are sold for taxes", making Section 9770 so dependent upon and so related to the other sections of the code providing for the manner of making tax sales and so related thereto that it would be inoperative without using the mandatory provisions of such other statutes. Unquestionably, Sections 9770 and 9772 of the Code of 1942 are to be considered in pari materia.
Section 9770, Code of 1942, is dependent upon, and would not be operative without, the help of Sections 9769 and 9772, Code of 1942.
Section 112 of the Mississippi Constitution provides "property shall be assessed for taxes under general laws and by uniform rules according to its true value."
Sections 9769, 9770 and 9772 of the Code of 1942 are each a part of a general law. Section 9770, instead of being sui generis and sui juris, directs the taxing officials to the provisions of Sections 9769, and 9772 for the ultimate operation of Section 9770. In giving directions for the return of the assessments of the interests or elements enumerated in Section 9770, the tax payer is directed to return the same within the same time and in the same manner as owners of land are now required by law to list lands for assessment and taxation and under like penalties, thus referring the owner to the mandatory provisions of Section 9769, Code of 1942.
In giving the directions to the Tax Collector for the enforcement of the collection of taxes levied under separate assessments of the interests or elements enumerated in Section 9770, the statute directs the attention of the Tax Collector to the other statutes upon which Section 9770 is dependent for the collection of the taxes levied under such assessments, for it provides that "all of such interests shall be assessed and taxed separately from such surface rights and interests in real estate and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes". Compare Jones v. Seward, 194 Miss. 763, 12 So.2d 132.
If assessments made of the elements enumerated in Section 9770 were not made in the same manner as other interests in real estate are assessed, and if sales for delinquent taxes levied thereon were not made in the same manner as tax sales of other interests in real estate are made, Section 9770 would violate the mandatory restrictions of Section 112 of the Constitution as to uniformity.
It would be impossible to comply with the requirements of due process and the other mandatory requirements relative to assessment under general laws and uniform rules under the Constitution if the assessments made under Section 9770 did not follow the uniform rules set forth in Section 9772. The two sections being a part of the same general law and of the uniform rules for the assessment of real estate for ad valorem taxation and the sale thereof for delinquent taxes, are to be considered in pari materia.
The words "interest" and "interests", as used in Section 9770 refer to the elements enumerated; refer to the name of the interest or element enumerated rather than to the quantum of the interest or element enumerated.
In order to comply with the requirements of Section 112 of the Constitution of 1890 as to uniformity of assessments, Sections 9769, 9770 and 9772 of the Code of 1942 must be harmonized. Otherwise, Section 9770 would be unconstitutional.
If the legislature had intended to separately assess undivided fractional interests in the elements enumerated in the statute, it would of necessity have required that the quantum of interest be shown in the assessment, rather than just the name of the interest, because due process requires an assessment so definite that it "can be made subject to a tax lien, and to a sale and delivery of the identical property and not some other, to make the tax money in case of default in payment". Gulf Refining Company v. Stone, 197 Miss. 713, 21 So.2d 19.
It is respectfully submitted that statutes assessing and levying taxes and providing for the sale of lands for taxes must be strictly construed. This court has no power to write into a taxing statute words that are not put in the statute by the legislature, so as to enlarge the scope of the statute as written. In construing a statute which is a part of a Revenue Act covering the entire subject matter of assessment of real property for taxation, the court will adopt that construction which harmonizes with the public policy of the legislature as gathered from all of its legislation upon the entire subject of assessment of real property.
In the case of Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907, the court said in syllabus (1) (syllabus by the court): "The courts in construing a statute consider all statutes in pari materia together in order to find the legislative intent, and, where a statute is susceptible of two reasonable constructions, will adopt that construction which harmonizes with the public policy of the Legislature gathered from all its legislation on the subject." See also Millsaps College v. City of Jackson, 136 Miss. 795, 101 So. 574, judgment affirmed (1927) 48 S.Ct. 94, 275 U.S. 129, 72 L.Ed. 196.
The words "interest" and "interests" are used 12 times, respectively, in Section 9770. First the statute lists the "interests" enumerated as "buildings improvements or structures, mineral, gas, oil, timber or similar interests in real estate".
Unquestionably, the words "similar interests", the first use of the word in the statute, means the "elements enumerated". Each element, buildings, improvements or structures, mineral, gas, oil and timber is an interest in real estate, which, when severed from the estate in the surface and soil, becomes a fee simple estate, and after severance is owned separate and apart from and independently of the rights and interests owned in the surface of such real estate as a separate and distinct fee simple estate. This is not true of an undivided interest in such elements where the other undivided interest is owned by the owner of the surface.
It is clear that the first use of the word "interest" in the statute is "and similar interests" following the words in the statute enumerating or naming the interest enumerated. It is the name of the kind of property enumerated, and it is respectfully submitted that in the construction of this statute as to the meaning of the words "interest" and "interests", the court will follow the rule laid down in the case of Millsaps College v. City of Jackson, supra, and following this rule, all doubts as to the use of the words "interest" and "interests" will be dispelled.
Later in the statute the word "interests" is used in the following clause: "All of such interests shall be assessed and taxed separately from such surface rights and interests in said real estate and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes."
It will be noted that the words "such surface rights and interests in said real estate", are used in the same sentence as the words "all of such interests", is used, and by this sentence the meaning of "all of such interests" must be gathered from the words, "such surface rights and interests in said real estate", because each interest enumerated shall be sold for taxes in the same manner.
It is respectfully submitted that in order to interpret the real meaning of the words "same manner", in this sentence, resort must be had to the statutes which are a part of the "Revenue Chapter", of the Code, providing for the sale of real estate for taxes, namely. Sections 3148, 3247, as amended, and 3249, as amended, being Section 9772, 9921 and 9923 of the Code of 1942.
As to the method of returning such "interest" by the tax payer for assessment, the statute did not give detailed instructions, but again referred the tax payer to the provisions and requirements of another section of the Revenue Code, now Section 9769. The owner turns in the assessment under Section 9769, and the Tax Assessor makes the assessment under Section 9772. The assessment is not complete under Section 9769 until the same is made complete under Section 9772. Since Section 9770 must depend upon Section 9769 and the assessment is not complete until the provisions of Sections 9769, 9770, and 9772 are all complied with, then, Sections 9770 and 9772 are in pari materia and must be construed together.
It is respectfully submitted that unquestionably the word "interest" and "interests" as used in Section 9770 are synonymous with "the undivided ownership by tenants in common" of the same tract or parcel of land used in Section 9772.
The words "undivided interests" do not appear in Section 9770, Code of 1942, and the statute did not contemplate separate assessments of undivided interests in the elements enumerated in the statute where owned in co-tenancy with the owner of the surface.
Undivided interests in minerals where owned in co-tenancy with the owner of the surface are not owned separately and apart. The ordinary meanings of the words "undivided" and "separately and apart from" definitely show that an undivided interest owned by one co-tenant cannot be said to be owned separately and apart from the interest owned by the other co-tenant.
In the case of Merrill Engineering Company v. Capital National Bank, 192 Miss. 378, 5 So.2d 666, the owner of the surface of certain land acquired by deed an outstanding fractional royalty interest in the oil, gas, and other minerals underlying the surface of such land from a third party, and the court held that upon such acquisition of the undivided royalty interest, the same was merged with the fee simple estate in the surface and soil of the land.
In the case of Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429, 431, it is held that "Where co-tenancies exist, none knoweth his own severalty, and therefore they all occupy promiscuously". Where a person owns an undivided interest in oil, gas, and other minerals underlying land, although he owns no fee title to the surface and soil, yet he owns an undivided interest in every particle of the oil, gas and other minerals underlying the surface of the land.
Hannah, Simrall Aultman, amici curiae, for appellees.
The legislature in enacting Section 9770, Code 1942, provided that it was only "whenever these rights were owned separately and apart from and independently of . . . the surface of such real estate." Most assuredly, if we treat the estate of the owner of the surface and of the half interest in the oil, gas and minerals as one estate, then the owner of the other undivided half interest in the minerals does not own such interest separately and apart from and independently of the surface of such real estate. On the other hand, if we treat the ownership of the surface rights as one estate and the tenants in common who own these mineral rights as the owners of a separate and distinct estate, we fall clearly within the contemplation, we think, of the lawmakers. It is a matter of public record and a matter of common knowledge that the owner of the surface rights frequently winds up with a very infinitesimal interest in the oil, gas and minerals; but this infinitesimal interest is owned jointly with many other owners of like infinitesimal interests in said estate.
Such a course of division and handling is consistent with all that this court (in consonance with other courts) has said about the duties and responsibilities of tenants in common as between each other. A contrary holding clashes at every juncture with these holdings. Take, for example, the question of taxes. This court has pointed out that tenants in common are mutually liable for the payment of taxes; but if we assess the surface and half the minerals as one estate and the other half interest as another estate, what are the cotenants to do? Must the second cotenant pay on the surface and half the minerals in order to protect his own? Can the State become a co-tenant with an individual? If so, can the State sue for partition, or can the State be sued for partition?
As above pointed out in Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429, the estates and rights and duties and responsibilities of tenants in common are very definitely different from the rights, duties, responsibilities and privileges of the individual and several owner of the surface rights.
And then we draw the court's attention to the fact that following this first sentence in what was originally enacted as Chapter 171 of the Laws of 1930, the lawmakers provided that the assessment of these separate interests should be returned to the assessor in the same manner and at the same time and assessed in the same way as Section 3145 of the Code of 1930 provided for the assessment of all other real estate.
All of this adds up, as we see it, to the legislature of 1930 making it mandatory that these oil, gas and mineral estates when separated from the surface rights, and whether owned by one or many jointly, should be placed on the assessment roll exactly in the same manner that the surface rights were placed there. In other words, and to put it another way, prior to the year 1930 there had not been any express and direct command from the legislative department, which is solely responsible for the Public Revenue, that the separate estates in land should be separately assessed and sold, notwithstanding the general rule of the common law that these several separate estates were the subject of separate assessment as this court has held in the case of Fox v. Pearl River Lumber Company, 80 Miss. 1, 31 So. 583, and there had been no command from the Legislature, which fixes the duties and responsibilities of the assessor, requiring the said assessor to make said separate and distinct assessments.
If the law is as announced by Mr. Blackstone and recognized and applied by this court "That no man can certainly tell which part is his own", then how can anyone tell to what the tax lien extends and applies if the tax is levied on the undivided interest of a cotenant.
In further support of our view that the undivided interest of a cotenant cannot be separately assessed and separately sold, we invite the court's consideration to the situation that results when the undivided interest of a cotenant is forfeited to the State. We do not understand that a partition between tenants in common can be effected otherwise than by an agreement between the parties or a proceeding in the chancery court in the mode and manner prescribed by statute. The law is, as we understand, that if the undivided interest of a co-tenant is levied upon and sold under execution that the purchaser simply becames a cotenant with the other co-tenant whose interest has not been sold. Does not the same thing result if the interest of a cotenant is sold for taxes? And then the next question arises: If the interest of a cotenant is separately assessed and separately forfeited to the State for the non-payment of taxes, does the State became a cotenant with the other cotenant whose interest was paid upon?
This court has many, many times pointed out the responsibilities and respective duties of one cotenant to another, and in the case of Bohn v. Bohn, supra, says: "The plain truth is that the incidents of cotenancy involve disadvantages, etc."
The record before us contains the theory of an agreed simultaneous trial of two suits in the Chancery Court of Wayne County. In both suits, appellees, as complainants, sought cancellation of tax sales of appellee, Foote's, fractional oil, gas and mineral interests, assessed and sold as fractions of two separate tracts, in 1941 for Foote's default in payment of his 1940 taxes on said fractions in each whole tract of oil, gas and minerals. Confirmation of appellees' title was also prayed. Appellant, in each case, made his answer a cross-bill, seeking cancellation of the claims of appellees to these same fractional interests of the entire mineral estate which he had bought at the aforesaid tax sales, claiming the sales to be valid. Appellees, on the other hand, denied and attacked the validity thereof.
There were several defendants in addition to appellant here, but they have disappeared from the record in one way or another, leaving appellant as the sole prosecutor of this appeal.
In one suit, relief was sought to cancel the cloud of appellant's tax purchase, and to confirm appellees' titles and claims in and to an undivided one-half interest in the oil, gas and other minerals in and under NW 1/4 of NW 1/4 and SW 1/4 of NW 1/4 of Section 31, Township 10 North of Range 8 West in said county, belonging to Alfred Foote. There was an over-all mineral lease to Gulf Refining Company, and a trust deed from Alfred Foote and Urban B. Hughes, on their interests, for benefit of the Commercial National Bank and Trust Company of Laurel. But, in view of the conclusion we have reached, it is not necessary to discuss further their connection with the situation.
In the second suit, the same relief was asked by the respective parties, involving, however, different land, and an undivided one-fourth interest in and to the oil, gas and other minerals in and under SW 1/4 of NE 1/4 and NE 1/4 of SE 1/4 of Section 3, Township 6 North of Range 7 West in Wayne County.
The gravamen of the complaint in both suits was that the tax assessor assessed these fractional interest against Alfred Foote for the year 1940, under the provisions of Section 9770, Code 1942, Chapter 185, Laws 1932, as construed in Stern et al. v. Parker, 200 Miss. 27, 25 So.2d 787, but completely ignoring the requirements of Section 3148, Code 1930, now Section 9772, Code 1942. The pertinent part of this latter section is that "if more than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll, and the tax collector shall only collect the taxes on one assessment." Appellees contended, therefore, that the latter statute prohibited the separate assessment and sale of an undivided fractional interest in real estate separate and apart from the other fractional interests in such real estate. The chancellor sustained this view, and we think correctly so.
There are other contentions in support of their right to the relief sought by appellees, and sustained by the chancellor, but we pretermit discussion of them, as, in our judgment adjudication of the one issue described, supra, will settle both cases.
In 1941, these fractional interests of appellee Foote were sold for non-payment of his taxes of 1940, and appellant Hendrix became the purchaser. It is this tax sale, which is at issue in the two suits. There is considerable evidence in the record, and much argument in the briefs, as to the claimed redemption thereof by appellee Foote, but, as stated, it is not necessary for us to reach that precise question here. The descriptions of the two tracts at issue as assessed, entered on the tax rolls, and sold, are respectively as follows: "1/2 of min. Int. NW NW SW NW Sect. 31, Town. 10, Range 8", and "1/4 Min. Int. SW NE NE SE, Sect. 3, Town. 6, Range 7." The surface was owned and separately assessed to another.
Section 9770, Code 1942, Chapter 185, Laws 1932, in part provides that all oil, gas, and mineral rights "shall be assessed and taxed separately from such surface rights and interests in said real estate, and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes."
Appellee Foote owned these mineral interests in common with others, who were owners of the other half thereof in the one case, and of the other three-fourths in the companion case. It seems to us, therefore, that the assessment and tax sale were both void because violating Sections 9772, Code 1942, Section 3148, Code 1930, quoted supra. Parties owning undivided interests in underlying minerals in land are tenants in common. Wight v. Ingram-Day Lumber Company, 195 Miss. 823, 17 So.2d 196. We held in Stern et al. v. Great Southern Land Company, 148 Miss. 649, 114 So. 739, that tenants in common of deposits of clay, oil, and minerals under the surface of the land may have partition thereof, where susceptible of ownership and conveyance from balance of estate. See Stern v. Parker, supra, holding the surface and subsurface minerals to be so susceptible. So, under our decisions the situation before us was one of tenancy in common.
The tax lien is on the land, every part of it. A fractional undivided interest could not be redeemed in case of a tract of land containing such interests, at a tax sale, because the tax liability, like the lien, extends to every acre of the land taxes, and the attempted redemption of an undivided fraction therein would result in a simple credit on the total tax due on the entire tract, unless in such redemption the tax due on the whole tract and all undivided interests therein were paid. We are not here dealing with payment of taxes in installments, under statute permitting that method, where assessment is properly made, but with assessment and sale of fractional interests in the same parcel of land.
The tax assessor may assess lands to the unknown owners thereof, but surely no one would contend he could lawfully assess many different undivided fractions in a piece of land, and balance of the undivided interests to named owners. He is required to state in his assessment roll that more than one person claims to be the owner of the same tract. Thereupon, "the tax collector shall only collect the taxes on one assessment." Section 9772, Code 1942. This seems clear and plain to us, and the assessments and sales here being violative thereof, and the statute being mandatory, the appellant acquired no title by his purchase at the tax sale. An assessment of land for taxes described as a fractional interest therein does not so describe the land as to identify the fractional interest, since such interest is undivided and extends to and is an integral part of the whole tract.
The reasonableness of this interpretation of the Statute, Section 3148, Code 1930, Section 9772, Code 1942, is further supported by our decisions dealing with the right of contribution, which one co-tenant may require of the others, where he pays the taxes on the entire tract for the owners of undivided interests therein. We held in Davidson v. Wallace, 53 Miss. 475, that where one tenant in common paid the taxes on the land to prevent a sale of it, he or his assigns, were entitled to and might enforce a lien on the interests of the co-tenant for the amount he should have paid; and this, in the absence of any agreement on the subject. See also Harrison v. Harrison, 56 Miss. 174, to the effect that a tenant in common purchasing at the tax sale thereof does so for the common benefit of his co-tenants, but that the common property is chargeable with the purchase money expended by him at the tax sale.
Section 9775, Code 1942, Section 3151, Code 1930, requires that "In assessing land, a description of it as a part of a designated tract or division, shall be held to embrace such part as is the subject of separate ownership, as one tract or division, whether owned by one or several jointly; and when part of a designated tract or division shall be sold for taxes, the sale shall pass the title of such part as was the subject of such separate ownership when it was assessed; and the sale of a specified number of acres of a tract containing more, or a specified portion of a tract, shall pass an undivided interest in the whole tract equal to the proportion which the number of acres or portions sold bears to the whole tract; and when part of a known tract or division of land is assessed by a description which identifies it, any other part of it which is assessed but not so identified, shall be held to embrace all of such tract or division not included in the part identified; . . ." This statute deals with identifiable parts of tracts of lands, whereas the subject before us involves fractional interests in lands, not capable of identification, separate and apart from any other acre in the tract. This statute must be read in harmony with Section 9772, Code 1942, Section 3148, Code 1930, which provides that the record of assessment show that several different owners have interest in the tract, and the tax collector shall "only collect the taxes on one assessment." Section 9775, Code 1942, supra, concludes that "parol testimony shall always be admissible to apply a description of land on the assessment roll, or in a conveyance for taxes, where such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony." A fractional interest in land is not a particular tract of land, and is incapable, as stated, of separate allocation to any portion of the parcel of land, since it pervades all of it.
Section 9775, Code 1942, was Section 3776, Code 1892, when we decided Illinois Central Railroad Company v. Le Blanc, 74 Miss. 650, 651, 21 So. 760, 761. That case involved this statute, and the Court there held that in an action of ejectment on a tax collector's deed and a decree confirming the same, wherein the land is described as "fractional 38 acres" in a certain forty acre tract assessed to a certain party, it is admissible to offer in evidence the assessment rolls, tax receipts and deeds which identify the remaining two acres, on which the taxes were paid, and thereby identified the land sold for taxes. It must still be borne in mind that undivided shares in land cannot be described separately from any part of the land, or the whole tract.
In Stevenson et al. v. Reed, 90 Miss. 341, 43 So. 433, it was said that a sale of an undivided one-half interest in an eighty acre tract was illegal. Furthermore, we have said that: "We have no statute authorizing a tax collector to . . . apportion the different undivided interests to any number of parties who may claim such interests therein and sell such undivided interests, and we think to do this would be bad policy and illegal, and in all instances he should collect the tax on the land, and not on any individual, undivided, inseparable, interest therein." Fountain v. Joullian, 110 Miss. 812, 71 So. 2.
The wisdom of the decision just quoted is demonstrated upon contemplation of the fact that sometimes these fractional interests become almost infinitesmial. In such case, the courts nave adopted the numerous party rule in litigations, holding that process on a representative group is sufficient service upon all. Floreen v. Saucier et al., 200 Miss. 428, 27 So.2d 557. In that case there were fifteen hundred heirs of the common ancestor, all with interests in the land. Can it be reasonably maintained that each of these fractional interests in the land could be separately assessed, with separate tax collections, separate sales, separate conveyances, and separate redemptions, in view of Section 3148, Code 1930, Section 9772, Code 1942? We think not. From a practicable point of view, it could not be justified, aside from the statute, which must be construed in a practical way. Here, the statute, Section 3148, Code 1930, Section 9772, Code 1942, in such cases would not permit assessment and sale of fractional interests, nor require the names of all owners to be listed on the assessment rolls and tax record, but the assessor is merely required: "if more than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll, . . ." He may name one or more of the tenants in common, or assess to unknown owners, and make the notation described in the statute. The assessment is a judgment, and a lien on the land, and this would be sufficient, for a sale of the whole tract, if the taxes are not paid thereon, as the sheriff is permitted by the statute to "only collect the taxes on one assessment."
We are here dealing with statutes and decisions thereon in force prior to the passage of the Documentary Stamp Act, Chapter 409, Laws 1946, and what we say is not in construction of that Act, which was passed after the matters here adjudicated came to pass.
The chancellor so decreed here, and his decrees cancelling the claims of appellant under the two tax sales of the lands involved, as clouds upon the titles of appellees, and confirming their titles thereto, accordingly, are affirmed.
Affirmed.
BRIEFS ON SUGGESTION OF ERROR
This matter is now before us on Suggestion of Error. For former opinion see Hendrix v. Foote et al., Miss., 36 So.2d 145.
There are two questions necessary for our decision: First, did the failure of the President of the Board of Supervisors to sign the minutes of the Board for July 13, 1940, recessing to convene on Monday, July 15, 1940, invalidate the order of the Board, entered on July 15, 1940, which preliminarily approved the assessment rolls, and if not, then second: Does Section 9770, Code of 1942, permit the separate assessment and sale for taxes of a fractional interest in the oil, gas, and other minerals.
Let us proceed to the consideration of the first question hereinabove set out. On September 21, 1942, the Tax Collector of Wayne County sold for delinquent taxes for 1941 the property described as "1/2 min. int. SW 1/4, NW 1/4 and NW 1/4 NW 1/4 Section 31, Township 10, Range 8". This mineral interest had been assessed upon the assessment roll of the County for 1941 to Alfred Foote. That same assessment roll assessed to Masonite Corporation the land and assessed to Gulf Refining Company the mineral leasehold interest in and to the same.
On the same day, September 21, 1942, the Tax Collector of Wayne County sold for delinquent taxes for 1941 the property described as "1/4 min. int. SW NE and NE SE Sev. 3 Township 6 Range 7". This mineral interest had been assessed upon the assessment roll for 1941 to Alfred Foote. This same assessment roll assessed the mineral leasehold interest to Gulf Refining Company and the land to E.D. West.
The Board of Supervisors of Wayne County at the July, 1940, meeting of said Board met in regular session on July 1, 1940, and by minutes duly signed recessed to convene on July 2d 1940. In this same manner legal meetings of said Board were duly held on the 3rd, 5th, 6th, 9th, 10th, and 12th. On the 12th the Board recessed to convene again on the 13th and on the minutes of the 13th there is an order recessing to Monday July 15th. The minutes for the 13th have never been signed. On July 15th the Board reconvened in regular session and entered upon that day's minutes an order approving the real property assessment roll for 1940 and 1941. The minutes for July 15, 1940, were duly signed. Does the failure of the President of the Board of Supervisors to sign the Board's minutes for July 13, 1940, on which minutes there was an order recessing to convene on July 15, 1940, invalidate the proceedings of the Board had and done on July 15, 1940? We think not.
Section 2877, Code of 1942, provides as follows:
"At the meetings for the transaction of business under the revenue law, the board of supervisors may continue in session as long as business may require, but at other regular meetings, they may sit for a period of not longer than six days in any one month; provided, that in counties having a population of more than forty thousand, the board may continue in session at any other regular meeting than the revenue meeting of not longer than ten days in any one month; and provided further, that the board of supervisors may recess from time to time, subject to the limitation herein provided, to convene on a day fixed by an order of the board entered on its minutes, and may transact any business coming before it for consideration."
Section 2886, Code of 1942, provides:
"It shall be the duty of the clerk of the board of supervisors to keep and preserve a complete and correct record of all the proceedings and orders of the board. He shall enter on the minutes the names of the members who attend at each meeting, and the names of those who fail to attend. He shall safely keep and preserve all records, books, and papers pertaining to his office, and deliver them to his successor when required. The minutes of each day shall be read and signed by the president before the final adjournment of the board."
Section 2886, Code of 1942, was amended by Chapter 305, Laws of 1946, but we are not here concerned with the amendment. We are concerned on with the statute as it stood in July 1940, when the meeting of the board was held.
It will be noted that Section 2877 provides that ". . . the board of supervisors may recess . . . to convene on a day fixed by an order of the board entered on its minutes . . ." and that Section 2886 requires that ". . . The minutes of each day shall be read and signed by the president before the final adjournment of the board."
While Gardner et al. v. Price et al., 197 Miss. 831, 21 So.2d 1, and Brand v. Board of Supervisors of Newton County, 198 Miss. 131, 21 So.2d 579, are enlightening and helpful neither decision is controlling here.
(Hn 1) Sections 2877 and 2886 are in pari materia and must be construed together and, if possible, read into each other, so as to make a consistent whole. Clarksdale Bldg. Loan Ass'n v. Board of Levee Com'rs for Yazoo-Mississippi Delta, 168 Miss. 326, 150 So. 783; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; State v. United States Fidelity Guaranty Co., 157 Miss. 740, 128 So. 503; Life Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47; Board of Supervisors or Attala County v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241.
(Hn 2) Construing Sections 2877 and 2886 together as a constituted whole it appears that while Section 2877 does require an order by the board, entered on its minutes in order to recess to convene on a day named in the order, still it is further provided, under Section 2886 that none of the minutes are required to be signed by the president until the last day of the meeting. Section 2886 is very clear in its terms. (Hn 3) The board of supervisors can meet and recess from day to day without signing the minutes for any day's meeting, and, just so long as the minutes are signed on the last day, the terms of both Sections 2877 and 2886 are literally complied with. Hence, when the Board of Supervisors met on July 15, 1940, they had the right to so meet and full jurisdiction to proceed with the business before the Board regardless of whether or not any of the minutes of the previous days of the meeting had been signed. Hence, the board was lawfully in session on July 15, 1940, and the order approving the real property assessment roll for 1940 and 1941 having been entered on that day's minutes, and the minutes having been duly signed by the President, the assessment roll for 1940 and 1941 thereupon stood duly and lawfully approved by the order entered on the minutes of that day. It is only the unsigned minutes of July 13, 1940, that conflict with the statute and that day's minutes only are invalidated by it.
Let us now consider the second question: Does Section 9770, Code of 1942, authorize the separate assessment, and, if the taxes are not paid, the subsequent sale for delinquent taxes of a fractional interest in the oil, gas, and other minerals? The former opinion held that it does not. We have carefully reconsidered this whole matter, and a majority of the Judges agree that the Suggestion of Error should be sustained and the former opinion withdrawn.
One hundred years ago, in 1848, the Legislature enacted what now appears as Section 9772 of the 1942 Code, which reads as follows:
"In making his land roll the assessor shall commence the assessment with the lowest number of range and township in his county, and with the northeast corner of each township, and shall proceed numerically, with all the sections, townships, and ranges in his county, first setting down all the subdivisions of each section, if they belong to different individuals, or the whole section together, if owned by one person, and not divided on account of parcels being of different values; and if more than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll, and the tax collector shall only collect the taxes on one assessment. . . ."
In Stevenson v. Reed, 90 Miss. 341, 43 So. 433, decided in 1907, it was said that under this statute a sale for delinquent taxes of an undivided one-half interest in an eighty acre tract was illegal. In Fountain v. Joullian, 110 Miss. 812, 71 So. 2, decided in 1916, it was held that the statute does not authorize a tax collector to apportion the different undivided interests to any number of parties who may claim such interests therein and sell such undivided interests for the delinquent taxes due thereon. The statute itself provides that: ". . . if more than one person shall claim to be the owner of the same tract of parcel of land the assessor shall so state in his assessment roll, and the tax collector shall only collect the taxes on one assessment."
It is beyond dispute that in 1930, when the Legislature enacted Chapter 171 of the Laws of 1930, which now appears as Section 9770 of the Code of 1942, fractional undivided interests in land could not be separately assessed to the respective fractional owners, so that each such fractional owner could have his undivided fractional interest separately assessed to him. Neither could he pay the taxes due only on his fractional interest and in default thereof have the tax collector sell only such fractional undivided interest. It was required by the statute that all of said fractional interests be assessed as a whole, and that the assessor state on the assessment roll that the tract was claimed by more than one person as owner, and the tax collector was required to collect the whole taxes on all the fractional interests under the one assessment. But, in Davidson v. Wallace, 1876, 53 Miss. 475, it was held that where one tenant in common paid the whole taxes on the land to prevent a sale of it, he, or, his assigns, were entitled to and might enforce a lien on the interests of his cotenants for the amount each co-tenant should have paid.
The Legislature knew this status of the law on the assessment of undivided fractional interests in land, at the time it enacted Chapter 171 of the Laws of 1930. They knew that fractional interests in land could not be separately assessed.
The Legislature in 1930 also knew that in Stokely v. State et al., 149 Miss. 435, 115 So. 563, decided in 1927, this Court had held that an oil and gas lease is a conveyance of an interest in land, and that in Moss v. Jourdan, 129 Miss. 598, 92 So. 689, (decided in 1922) it had been held that minerals in place were capable of separate ownership from the surface of the land and that the owner of such minerals had the right to remove same from the land, subject to claim for such damage as might be thereby occasioned to the owner of the surface.
The Legislature, at that time, also knew that the Amory and Jackson gas fields had been discovered and that large scale buying and selling of mineral interest in lands in said fields was a matter of common daily occurrence. They knew, too, that customarily the owner of the fee would execute a lease to a producing company, conveying an undivided seven-eighths interest in the oil and gas; that the fee owner would reserve an undivided one-eighth interest therein; that frequently the holder of the lease would convey an overriding royalty; that the owner of the fee would convey to purchasers a part of his royalty and these purchasers would split up their purchases in sales to many others, resulting quickly and shortly in large numbers of owners, owning small undivided fractional interests in the minerals.
The Legislature also knew that under the law, as it then stood, no individual owner could have his small undivided fractional interest separately assessed to him. They knew that if landowner A had given a seven-eighths oil and gas lease on his lands, to B, retaining a one-eighth royalty and had then sold one-half of his royalty to C, that there would have occurred a severance of the seven-eighth leasehold interest belonging to B and the one-sixteenth royalty interest owned by C, but neither B nor C could have their fractional undivided interest separately assessed to them, but that the whole mineral interest was required by the statute to be assessed as a unit belonging to more than one person and the tax collector was required to make one sale of the whole unit on the one assessment. If John Doe should be the owner of an undivided .0002 interest in the unit, the value of which unit was six hundred thousand dollars, and the taxes due on the whole unit amounted to $18,000.00, then John Doe would find it impossible to have his .0002 interest separately assessed to him at its proportionate value of $120.00, but the whole mineral unit was required by law to be assessed as a unit, and if the taxes were unpaid, the law placed on John Doe the duty of paying the entire tax bill of $18,000.00 on the entire unit in order to avoid the sale of his interest, though on it there was due for taxes only the proportionate sum of $3.60, and then sue his numerous and sundry cotenants for a contribution of the respective amount due proportionately by each of them. He would find it impossible to raise so large a sum and accordingly his interest would be confiscated for taxes.
So, in 1930, the Legislature, realizing the necessity for relief, enacted Chapter 171 of the Laws of 1930, now appearing as Section 9770, Code of 1942, which reads as follows:
"Whenever any buildings, improvements or structures, mineral, gas, oil, timber or similar interests in real estate, including building permits or reservations, are owned separately and apart from and independently of the rights and interests owned in the surface of such real estate, or when any person reserves any right or interest, or has any leasehold in the elements above enumerated, all of such interests shall be assessed and taxed separately from such surface rights and interests in said real estate, and shall be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes. All interests in real estate herein enumerated shall be returned to the tax assessor within the same time and in the same manner as the owners of land are now required by law to list lands for assessment and taxation and under like penalties. The tax assessor shall enter the assessment of the interests herein enumerated upon the assessment roll by entering the same upon the next succeeding line or lines of the roll following the assessment of the surface owner, the name of the owner and the name of the interest, and by placing the value in the appropriate column or columns on the roll; or the assessor may enter the assessment of any or all of such interests upon a page or pages in the land roll following the assessment of the lands of the county, and the value of all such interests shall be included in the recapitulation of the roll. And the value of said interest or interests shall be determined and fixed in the same manner and by the same officials now required by law to value and assess property for taxation."
It is known to everyone that many large producing oil companies own fractional leasehold interests in this State which have been assessed to them and upon which they have paid the taxes. In many instances, the taxes due upon the assessment against the surface of the lands have contained no exception of the minerals, so separately assessed to such companies, and said taxes have not been paid, and said lands have been sold for the payment of such taxes. If such fractional leasehold interests are not separately assessable for taxes and said attempted assessments thereon are void, then many fractional leasehold interests, some producing oil, would be lost to their owners and title thereto passed to such purchasers at such tax sales. Stern v. Parker, 200 Miss. 27, 25 So.2d 787, 27 So.2d 402.
It is also well known that for twenty years owners of separately owned minerals, royalties and leaseholds have been separately assessed with and have paid taxes on such separately owned interests. These oil and gas interests were fractional undivided interests and often of trivial value. The Legislature recognized the nuisance connected with the assessment and taxation of separate minerals, royalty and leasehold ownerships, and passed the Documentary Stamp Act of 1946, being Chapter 409, Laws of 1946, Section 2 of which reads as follows:
"To encourage the purchase of leases upon and interests in oil, gas and other minerals in the state of Mississippi, to encourage drilling for and production of such minerals, and to relieve the taxing officials of the counties of the state of the onerous duties of assessment for, collection of and sale for ad valorem taxes for such interests (which the legislature finds are generally assessed at nominal values resulting in taxes not commensurate with the services required of such officers), all nonproducing leasehold interests upon all oil, gas and other minerals in, on or under lands lying within the state of Mississippi, created or assigned after the effective date of this act, and also all nonproducing interests in such oil, gas and other minerals (including royalty interests therein) hereafter conveyed to a grantee or purchaser or excepted or reserved to a grantor separately and apart from the surface, shall be exempt from all ad valorem taxes levied on or after January 1, 1947, by the state of Mississippi, or any county, municipality, levee district, road district, school district, drainage district or other taxing district within the state or becoming a lien on or after said date. Any sale for taxes of the surface or of the remainder of the fee shall not in any manner whatsoever affect the interest or interests hereby exempted.
"For the same purpose and with like effect there is hereby likewise exempted from such ad valorem taxation all such interests created prior to the passage of this act which are owned separately and apart from the surface, provided that as a condition precedent to obtaining such exemption upon existing interests the then owner thereof shall make application for exemption of the interest then owned by him as hereinafter provided and pay, by the purchase of documentary tax stamps, a sum equivalent to the tax herein levied by section 4, et seq., on instruments hereafter executed creating, transferring or reserving corresponding or similar interests. If any such sum is paid after January 1, 1947, then such exemption shall apply only to taxes becoming a lien after such sum is thus paid."
Stern v. Parker, supra, holds that the fractional mineral interest must be separately assessed or it will pass under a tax sale of the fee in the land. Section 9770 permits assessment where "owned separately and apart from and independently of the rights and interests owned in the surface of such real estate." Suppose A owns a tract of land and executed to B an oil and gas lease upon the same, conveying to B a determinable fee in an undivided seven-eighths of the oil and gas in place and reserving to A an undivided one-eighth royalty interest therein; then A sells to C one-half of his royalty or an undivided one-sixteenth interest. Now the one-sixteenth royalty retained by A is not "owned separately and apart from and independently of the rights and interests owned in the surface of such real estate" and is not subject to assessment under Section 9770, so unless Section 9770 permits a separate assessment to B of his leasehold interest and a separate assessment to C of his royalty interest, then there could be no assessment as it would be impossible to include all of the separately owned interests, including A's retained royalty, under one unit assessment of the whole.
(Hn 4) The Armory and Jackson gas fields had been discovered when the Legislature enacted Section 9770, and the Legislature was dealing with an entirely new and independent subject matter that had arisen with reference thereto. The assessment of interests in oil and gas could not be handled adequately, justly and conveniently under the then existing law. They established and had the right to establish a different method of assessment, just as had been done in the case of banks, corporations, and joint stock companies, so long as the law applied equally on all within the class and was not discriminatory against others occupying a like position. Section 9770 does not deal with the same subject matter as Section 9772 and is not in pari materia with it. The language contained in Section 9772: "and if more than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll . . ." cannot control Section 9770 which is a later enactment and is not in pari materia with it.
If it be said that Section 9770 is dependent upon Section 9772 for a part of the plan of assessment or collection, this does not make Section 9770 in pari materia with Section 9772. The Legislature, in enacting Section 9770, was dealing with an entirely new subject matter, not known of at the time of the enactment of Section 9772, nearly one hundred years previous. The most that can be made of such an argument is that it portends to make Section 9770 ambiguous and uncertain as to whether the language in Section 9772 "and the tax collector shall only collect the taxes on one assessment" shall apply to sales under Section 9770. We think it does for there is no ambiguity. when the undivided fractional interest is separately assessed to the owner it would still follow that the "tax collector shall only collect the taxes on one assessment". Such is the clear legislative intent. There is no ambiguity here. But, if there were an ambiguity, this Court has repeatedly held that where the meaning of a statute is not clear, resort is had to the real purpose and intention of the Legislature in adopting the statute, which, when ascertained, the Court will give effect thereto, even though the letter of the statute be violated. What is within the intention is within the meaning of the statute, although not within the letter. Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A., N.S., 541, Ann. Cas. 1914B, 392; Learned v. Corley, 43 Miss. 687; Bonds v. Greer, 56 Miss. 710; Adams v. Yazoo M.V.R. Company, 75 Miss. 275, 22 So. 824. And, furthermore, the Court, in construing a statute, will not impute an unjust and unwise purpose to the Legislature when any other reasonable construction can save it from such imputation. Dunn v. Clinghan, 93 Miss. 310, 47 So. 503; Gunter v. City of Jackson, supra.
It is evidence that this Court, speaking through Judge Griffith, in ruling on the Suggestion of Error in Stern v. Parker, 200 Miss. 41, 27 So.2d 402, 403, expressed only the obvious, when it said: "Undoubtedly it was a purpose of Section 9770, Code 1942, to allow the assessments of the separate interests therein mentioned to be so made as to relieve the owners of such interest of any concern or responsibility as to any other interests in the described parcel of land . . ."
(Hn 5) We have reached the conclusion that Section 9770 permits and requires the separate assessment of undivided fractional interests in oil, and gas, in place, to each separate owner of such a fractional undivided interest, insofar as not exempted by Chapter 134, Laws of 1944, and that the assessments of the undivided interests in the case at bar to Alfred Foote were valid assessments and the sale thereof passed title to Tom Hendrix, the purchaser.
If there be any conflict between this opinion, based as it is on the facts of this case, and the holdings in Gulf Refining Company v. Stone, 197 Miss. 713, 21 So.2d 19, and Smith County Oil Company v. Board of Supervisors of Simpson County, 200 Miss. 18, 25 So.2d 457, 26 So.2d 685, based as they are on the facts in those cases, then the opinion herein shall control.
The suggestion of error will be sustained, and the former opinion withdrawn, causes reversed and remanded.
DISSENTING OPINION
We are all in agreement upon the first question dealt with in the majority opinion, but I cannot concur in what is therein said on the second question, wherein the majority holds that Secs. 9770 and 9772, Code 1942, are not in pari materia, and are not to be read together. On the contrary, Sec. 9770, by its very terms, is dependent upon Sec. 9772, and could not move a step without its aid, and being so they are "in pari materia and must be construed together, and, if possible, read into each other, so as to make a consistent whole", to quote an earlier correct statement in the majority opinion. That, in effect, was what the original opinion in this case held, and I adhere to that opinion.
The majority opinion takes comfort from Stern v. Parker, 200 Miss. 41, 25 So.2d 787, 27 So.2d 402. The matter of the separate assessment of undivided fractional interests was not involved in that case, and no such question was in the mind of the Court in any opinion written therein.
In my judgment, the Suggestion of Error should be overruled.
Griffith, C.J., concurs in the above opinion.