Opinion
No. 37502.
May 8, 1950.
1. Taxation — assessment rolls in Jasper County.
The special statutory requirement, Sec. 12, Chap. 168, Laws 1906, that as to Jasper County complete copies of the assessment roll of the entire county shall be filed in each of the two judicial districts thereof was not repealed either directly or by implication by the general statute, Chap. 323, Laws 1920, and the special requirement first mentioned was not dispensed with until by Chap. 250, Local and Private Acts 1934.
2. Taxation — failure to file assessment roll as required by statute, effect.
The assessment roll in Jasper County for the year 1930 had not been filed as required by Sec. 12, Chap. 168, Laws 1906, with the result that a tax sale for the alleged delinquent taxes for that year was invalid.
3. Evidence — judicial notice — local and private acts.
The local and private Act, Chap. 168, Laws 1906, aforementioned was not required to be pleaded because, although a special Act, it is nevertheless a public Act of which judicial notice is taken.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Jasper County; ROY P. NOBLE, Chancellor.
McFarland McFarland, for appellant.
Appellee's first ground of attack on the tax sale in question is based on an alleged violation of a private statute, Chap. 168 Laws 1906.
In relying on a private statute of a county or municipality the Court does not take judicial notice of the statute or its contents, and the same must be pleaded and proved. 41 Am. Jur., Pleading, Sec. 12.
No private statute affecting Jasper County was either pleaded or proved in the court below.
Appellants submit to this Court that the filing of an entire roll of the county in each district could have no effect on the validity or invalidity of a tax sale. Chap. 323 Laws 1920 revamped and rewrote the laws of the state regarding the filing, notice, correction, objections, and approval of the assessment roll, and the pertinent feature of this Act is brought forward as Sec. 9785 Code 1942; and nothing is said about the filing of an entire assessment roll of the county in each of two judicial districts where the county is divided into two districts, as is Jasper County. The case of State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, holds that Chap. 323 was a repeal of all former statutes regarding the filing, notice, correction, objection and approval of the assessment roll.
Appellants consider the above cited case binding as to the effect of Chap. 323 Laws 1920, now Section 9785 Code 1942; and it is definitely considered as one of the leading cases of this Court on the questions involved, and is often cited in later cases.
C.D. Gibbes, Jr., and Welch, Cooper Welch, for appellee.
Chap. 168 Laws 1906 divides Jasper County into two judicial districts, one of which has Paulding as its "seat of justice" and the other having Bay Springs as its "seat of justice".
Section 12 of said Chap. 168 provides that it shall be the duty of the assessor to file a complete assessment roll of the county at each county seat. There can be no escape from this conclusion. In the first place, the statute says it. In the second place, it provides that the board of supervisors when at Paulding "shall approve so much thereof" as shall relate to the lands in the First District and when at Bay Springs so much thereof as shall relate to the lands in the Second District. And there are other provisions which indicate the same.
The statute is by its terms mandatory. It provides that the assessor shall file two copies of the land and personal rolls, one at Paulding and one at Bay Springs. There can be no question about this. A partial roll is not proper. Many reasons are and have been suggested for this. A landowner residing in the First District may have lands in the Second District. An inspection of the rolls at Paulding will give him his full information. Likewise the residents of one district with a full roll before them will have the right to compare valuations. And other reasons have been suggested.
Appellants argue that Chap. 168 Laws 1906 is a private statute and it was neither pleaded nor proved and the Court would not take judicial notice thereof.
It would be an anomaly for a court to sit at Bay Springs and yet that court could not take judicial notice of the law which authorized such a sitting. But this is appellants' argument.
This Court, however, has settled this question adversely to appellants' contention. In the case of Haas v. Hancock County, 183 Miss. 365, 184 So. 812, the Court was considering a statute authorizing Hancock County to borrow $75,000.00 and to issue bonds to evidence the indebtedness. The money was to be used to pay outstanding warrants. The same argument was made as here but the Court said: "In our judgment this is not a private act, but a local and public act, and the court should have taken judicial notice of the passage of the law and its contents. See 59 C.J. 736, where it is said that if `a public local law and a special law are to be distinguished in that a local law applies to all persons within the territorial limits prescribed by it, while a special law applies to particular persons or things of a class. . . . The term `private' has been sometimes used as synonymous with `special'. . . . A public law is one which concerns the interest of the public at large. A public law may be a general, local or special law.' See, also, 6 Words and Phrases, First Series, page 5568; and 6 Words and Phrases, Third Series, page 1166."
The statute under consideration clearly applies to all persons within the limits of Jasper County. It is, therefore, not a "special" or "private" law but a "local and public" Act of which any court will take judicial notice.
Appellant next contends also that Chap. 323 Laws 1920 had the effect of repealing or modifying Sec. 12 Chap. 168 Laws 1906. An analysis of that chapter of the Laws of 1920 will convince the Court that at no place is there any repeal or modification of Sec. 12 Laws 1906 requiring the filing of a complete roll in each district. Repeals by implication are not favored. There are none here either expressly made or by implication. The Legislature so construed this and as a result passed Chap. 520 Laws 1934.
Bill was filed by appellee to cancel tax patent issued to McFarland and for damages for cutting of timber therefrom. Decree was entered for complainant declaring the tax sale to the State invalid and the patent void, together with an award of $251.64 against McFarland and D.L. Fair Lumber Company who cut said timber under authority from the patentee.
The decree rested upon noncompliance with Section 12 of Chapter 168 of the Laws of 1906, which we here quote: "It shall be the duty of the Assessor of Jasper County to file with the Chancery Clerk of said county two copies each of the land and personal assessment rolls of said county, filing one of each with said Clerk at his office at Paulding, and one of each in his office at Bay Springs, and said Board of Supervisors, in passing on said assessment rolls, shall, at the proper meeting held by them at Paulding, approve so much of the same as shall relate to and embrace property included and being in the First District of said county, and at the proper meeting held at Bay Springs they shall act on and approve so much of said rolls as shall embrace and include the property within the Second District of said county, in all instances acting upon said rolls, so far as the territory embraced in each of the respective districts is concerned, in the same manner as though the action or approval thereof related to the approval of the assessment rolls of different counties, and the Assessor and Clerk shall provide suitable copies of said entire rolls as finally approved in all instances where required by law as though said rolls related to different counties; provided, that only one copy of each shall be required to be filed with the Auditor of Public Accounts when the rolls shall have been approved, and so far as the same shall relate to each of said districts."
This act divided Jasper County into two districts with county seats at Paulding in district one, and at Bay Springs in district two. The lands involved are the NE 1/4 of NW 1/4 of Section 27, Township 4 North, Range 11 East. They lie in the second district.
The act of 1906 is clear that complete copies of the assessment rolls be filed in each district. The record substantiates the fact that this was not done. The sale for delinquent taxes was made April 6, 1931 for the taxes for 1930.
(Hn 1) It is argued, however, that Chapter 323, Laws 1920, Code 1942, Section 9785, repealed Section 12 of the 1906 Act. We do not think it does so by either direct language or by implication. The meaning of the 1906 Act as well as the legislative interpretation thereof is attested by Chapter 520 of the Local and Private Acts of 1934 whereby Section 12 of Chapter 168 of the Laws of 1906 was amended so as to dispense with the requirement that complete copies of the roll be filed in each district, and provided that there be filed at each county seat a roll only of the lands lying respectively in each.
(Hn 2) We need not further expand our conclusion that the sale in 1931 must be tested by the requirements of the 1906 Act and that failure to comply therewith rendered the sale to the State invalid. The patent subsequently issued is therefore void. (Hn 3) Point is made that the Act of 1906 was required to be pleaded since, being a local and private Act, judicial notice thereof would not be taken. The answer is found in Haas v. Hancock County, 183 Miss. 365, 184 So. 812. It is a special, but nevertheless a public act. 59 C.J. p. 736.
We find no occasion to examine the other assignment which is directed to the sufficiency of the notice to the taxpayers of the completion of the rolls and their availability for examination and correction.
No point is made as to the validity of appellee's title apart from the issue of validity vel non of the sale, or as to the finding of damages.
Affirmed.