Opinion
No. 33096.
March 7, 1938.
1. TAXATION.
A board of supervisors in assessing property for taxation is a court of special and limited jurisdiction, and its records should affirmatively show that all jurisdictional facts existed when board made assessment roll final and equalized and assessed tax.
2. TAXATION.
An order of board of supervisors reciting that notice that tax assessment rolls were open for examination had been published in a newspaper in county and posted in courthouse sufficiently showed that proof of publication was on file, notwithstanding absence of evidentiary facts showing proof of publication (Code 1930, section 3162).
3. TAXATION.
Proof of publication of notice that tax assessment rolls were open for examination is for purpose of showing board of supervisors that publication had been made as required by law (Code 1930, section 1595).
4. TAXATION.
An order of board of supervisors in tax proceeding was required to recite only the ultimate jurisdictional fact that notice that tax assessment rolls were open for examination had been published, as distinguished from evidentiary fact of proof of publication (Code 1930, section 3162).
5. COURTS.
The facts conferring jurisdiction must be affirmatively found to exist and should appear upon records or minutes to support judgment of court of special and limited jurisdiction, but, where court of general jurisdiction has rendered judgment, it is presumed that necessary jurisdictional facts exist.
6. COUNTIES.
Orders of a court or board, such as county board of supervisors, administered by men unlearned in technical requirements, should not be strictly construed.
7. TAXATION.
The failure of order of board of supervisors in tax proceeding to show that assessor was present at meeting at which objections to assessments were made did not invalidate tax title, since assessor's presence was not a jurisdictional requirement, but was only for purpose of enabling him to assist board.
8. TAXATION.
Where statute providing for publication of notice that tax assessment rolls were ready for examination did not require publication in more than one issue of newspaper, and provided that there might be but ten days between equalization and examination, continuous publication was not required, and one publication was sufficient (Code 1930, section 3162).
APPEAL from the chancery court of Lamar county. HON. BEN STEVENS, Chancellor.
J.M. Morse, of Poplarville, for appellant.
The order set out in the statement of facts is based on Section 3162 of the Mississippi Code of 1930, and the appellant contends that the tax title is void for the following reasons:
1. If the order set out in the statement of facts is void then the tax title is void.
State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671.
2. That the order set out at the August meeting, as shown in the statement of facts, is a judgment of a court of limited and special jurisdiction.
State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevitt v. Walls, 122 So. 766, 154 Miss. 671; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Board v. Ottley, 112 So. 466, 146 Miss. 118; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601; Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192.
3. Being a court of limited and special jurisdiction, before a valid order can fix a valid lien upon a taxpayer's property, all jurisdictional facts must appear in the face of the order and there must be (a) a valid complaint. (The assessment); (b) a summons. (The newspaper notice); (c) a return by the officer designated. (In this case the printer is the officer designated and the return is the proof of publication.)
Virden v. Bowers, 55 Miss. 1; Austin-Western Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601 ; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Bank of Weir v. Attala County, 126 So. 192, 156 Miss. 560; Board v. Ottley, 112 So. 466, 146 Miss. 118; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Equipment Co. v. Dunlop, 160 So. 734, 172 Miss. 752; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Henry v. Supervisors, 111 Miss. 434, 71 So. 742; Adams v. Bank, 103 Miss. 744, 60 So. 770; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Sections 1556, 1596, and 1595, Code of 1930.
4. Being a judgment of a court of limited and special jurisdiction, all jurisdictional facts must appear of record in the order. If any jurisdictional facts are omitted from the order, then no presumption is indulged in to supply them.
Robertson v. First National Bank, 76 So. 689, 115 Miss. 840; Adams v. First National Bank, 60 So. 770, 103 Miss. 744; Bolivar County v. Coleman, 15 So. 108, 71 Miss. 832; Aden v. Board of Suprs., Issaquena Co., 107 So. 753, 142 Miss. 696; Board of Suprs. v. Ottley, 112 So. 466, 146 Miss. 118; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevitt v. Walls, 122 So. 766, 154 Miss. 671.
5. Section 3163, Mississippi Code of 1930, makes it mandatory that the assessor be present at the August meeting, or, it is necessary that the board should adjudicate that he was sick or could not be present and that the silence of the order in adjudicating anything about the assessor, which is a jurisdictional matter, renders the assessment void.
Section 3163, Code of 1930.
6. That even if the court should hold that it is not necessary for the proof of publication to be on file, that the August, 1930, order of the board of supervisors of Lamar County, Mississippi, is void because it shows on its face that there was a subsequent issue of the newspaper between the published notice and the return day, which issue did not contain the notice set out in the order of the board of supervisors.
Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Planters Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323; McMahan v. Building Assn., 75 Miss. 965, 23 So. 431; Maris v. Lindsey, 124 Miss. 742, 87 So. 13.
John A. Yeager, of Lumberton, for appellee.
It was the bounden duty of the appellant to timely and properly make, in cooperation with the assessor, the tax return for the years 1930-1931 on the property here involved, under Section 3145, Code 1930. The proof showing that no change in the original assessment return was made and no objection being filed and no appeal taken, this constituted an appearance and waiver of notice on the part of appellant as a presumption of law and the liberal construction in favor of tax title required by Section 79, Constitution of 1890, and Section 1578, Code 1930. The principle is fundamental by force of Section 14 of the Constitution that an order, judgment or decree, rendered by any court, is not binding upon the person or property sought to be effected thereby, unless due and timely notice — actual or constructive — be first given. Nevertheless, the law presumes that the tax assessor, under Section 3145, regularly and correctly performed his duty — Robertson v. U.S. Nur. Co., 83 So. 307, 121 Miss. 14, this, coupled with the proof that no change in the property owner's assessment return was made, constitutes an appearance by the property owner to the extent of waiving the necessity of giving notice under the facts in the case at bar.
Following the enactment of Section 3162, Code of 1930, a prescribed form of notice to taxpayers emanated from the office of the State Tax Commission, the uniform and constant use of which has continuously since and does now obtain by the Board of Supervisors throughout the State as reflected by suit — State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson, etc. v. Gammill, 149 Miss. 576, 115 So. 716; Rowlings v. Ladner, 174 Miss. 611, 165 So. 427.
In the case of Hemphill v. Wofford, 178 Miss. 687, 173 So. 427, our court sternly rejected the idea of "reading into a statute something that is not therein contained" by the use of the following words: "This we cannot do."
Counsel for appellant overlooks the presumption of law in favor of the validity of the tax title here involved afforded by Section 1578, Code of 1930. By force of this statute and the list of lands sold to the state at such sale, bottomed on a tax sale made at the time prescribed by statute, when construed in the light of Section 79 of the Constitution which provides, ". . . the court shall apply the same liberal principles in favor of such titles as in sale by executions . . ." and by Section 3049, Code of 1930, providing that the purchaser at an execution sale shall become vested with all the right, title and interest, which the judgment debtor had in and to such lands, and which, by law, could be sold under such execution, — supplies evidence and legal presumption of sufficient force and magnitude to sustain the validity of the tax sale, unless and until the appellant adduces evidence of sufficient legal force to overthrow said presumption. This appellant did not do.
The revenue law of this state as contained in Chapter 61, Code of 1930, including acts amendatory of and supplemental thereto, affords a complete constitutional revenue scheme for the state.
The due process and equal protection clauses of the state and federal constitutions are fully met and satisfied in giving the taxpayer the notice as presented by Section 3162.
Contention of opposing counsel to the effect that the "notice to the taxpayers" is void because more than a week lapsed between its publication and convening date (August 4th) of the board is wholly untenable.
Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11.
The case of Gordon v. Smith, 154 Miss. 787, 122 So. 762, defines a rule of law reflecting the necessary minute entry of the board of supervisors directly in point and which is fully met by the record in the case at bar, viz: "The giving of this notice, as required by section 4303, Code 1906, was necessary to confer jurisdiction upon the board of supervisors to consider, equalize, and approve or confirm the assessment rolls; and this being true, the fact that such notice was given must affirmatively appear on the minutes of the board to give validity to any of its acts and orders touching the equalization and approval of said rolls. In the case at bar, the fact that notice had been given of the filing of the assessment rolls and the date of the meeting of the board to consider the same, as required by Section 4303, Code 1906 (Section 3162, Code 1930) does not appear on the minutes of the board; and, consequently, all acts and orders of the board in reference to the equalization and approval of the said rolls of 1909 and 1910 are void."
The contention of opposing counsel to the effect that the board's approval of the tax assessment here involved was void because the minutes do not show the presence of the assessor as required by Section 3163, Code 1930, finds no support in law.
Robertson v. U.S. Nur. Co., 121 Miss. 14, 83 So. 307; 1 Cooley on Taxation (3 Ed.), 447; Amer. Eng. Enc. L. (2 Ed.), page 697.
The validity of a tax sale and deed must be determined by the law in force when the sale was made.
Everett v. Williamson, 143 So. 690, 163 Miss. 848.
The board's minutes in the case at bar, while not reciting that the proof of publication shows the notice to have been published but goes further and sets out the notice in full and thus adjudicates as a matter of fact known to the board that the notice was posted and published "by publishing the following (here the notice appears) in The Booster, a newspaper located and published at Purvis, Mississippi, which notice was published and circulated by said newspaper on the 24th day of July, 1930, in said county, and was on the 23d day of July, 1930, posted in the courthouse in the town of Purvis, in said county, by said clerk." We do not wish to be understood as saying that the proof of publication was not on file and recorded in the minutes. It is our position, (1) That no such proof of publication and recording is required by statute in the case at bar; (2) that in view of the proof made by appellee, when considered in connection with the prima facie statute and presumptions of law in favor of the validity of the tax title, the burden devolved upon the appellant to negative, by competent and sufficient proof, the validity of the tax title. This she did not do.
Section 79, Constitution 1980; Sections 3049 and 1578, Code of 1930; Johnson v. Lake, 162 Miss. 227, 139 So. 455; Alvis v. Hicks, 150 Miss. 306, 116 So. 613; Grenada Bank v. Moorehead, 160 Miss. 163, 133 So. 666; Adams County v. Bank of Commerce, 157 Miss. 249, 128 So. 110; Rawlings v. City of Hattiesburg, 171 Miss. 136, 157 So. 254; Hemp v. Wofford, 173 So. 427, 178 Miss. 687.
By Chapter 323, Acts of 1920 (now Section 3162, Code 1930) the Legislature clarified our revenue laws and by Section 5 thereof brought the constructive notice statute clearly in line with a declaratory of the common law. 3 Bl. Com. 283, 444, so as to make the board of supervisors' court, when obtaining jurisdiction of the taxpayers by constructive process "a proceeding according to the course of the common law." Free. on Judgments (5 Ed.), sec. 385. Therefore, while the board of supervisors is a court of limited jurisdiction yet, when functioning according to the course of the common law — as here, is entitled, on the given point, to all the presumptions of law in favor of the validity of its judgments that are accorded to courts of general jurisdiction. For the reasons assigned, the case at bar being a collateral attack upon a judgment of the board cannot be sustained and appellant is estopped in the premises.
Scott County v. Dubois, 158 Miss. 245, 130 So. 106.
It is a well settled principle of law in both the state and federal courts, that the court of its own motion, where want of jurisdiction appears on the face of the record, will raise the question of its own motion. Town, etc. v. Peyton, 109 So. 740, 143 So. 777. Howbeit judgments of assessing boards, both county and municipal, under the latter statutes, have received sanction by decisions of this court in numerous cases in which the minutes of those assessing boards did not reflect proof of publication of the "notice of taxpayers" being on file, but did adjudicate that such notice was properly given.
Alvis v. Hicks, 50 Miss. 306, 116 So. 613, 128 So. 110, 133 So. 666.
Argued orally by J.M. Morse, for appellant, and by John A. Yeager, for appellee.
Mrs. Pettibone was the owner of a home in Lumberton, Lamar county, Miss., which place she left in her father's care, to look after the property and collect the rent. He neglected to pay taxes on the place, and it was sold to the state in April, 1932; and, not being redeemed, title ripened in the state. Thereafter, in November, 1935, the state sold the property to a Miss Breedlove, giving a patent therefor; and she, in turn, sold it to Charles Wells. Suit was instituted, and, Mr. Wells dying, the suit was revived against his widow and minor children. A guardian ad litem was appointed for the minors. The appellees filed a cross-bill praying for confirmation of the tax title; and on the trial the court below dismissed appellant's bill, and entered a decree on appellee's cross-bill, confirming the title. The question for decision here is whether the tax title is valid, because of the failure of the Board of Supervisors to recite alleged jurisdictional facts. Title to the land had passed out of the United States government, and was deraigned in the pleadings, and the land was subject to taxation.
At the August, 1930, meeting, the Board of Supervisors (having equalized the roll at the July meeting, entered an order with reference to tax proceedings, giving notice to the taxpayers in the following words and figures:
"To the Tax-Payers of Lamar County, State of Mississippi:
"You will please take notice that the assessment of real and personal property on the rolls for 1930 have been changed and corrected by this Board so as to comply with the laws of this state, and that said revised rolls are now open for examination, and that any objection to any assessments contained in said revised rolls must be made in writing and filed with the Clerk of this Board on or before the first Monday of August, 1930, at his office in the town of Purvis, said county, and that any or all assessments to which no objection is then and there made, will be made final.
"This the 23rd day of July, 1930.
"The Board of Supervisors of Said County, "By J.D. Sumrall, Clerk of Said Board."
"In the Booster, a newspaper located and published at Purvis, Mississippi, which notice was published and circulated by said newspaper on the 24th day of July, 1930, in said county, and was on the 23rd day of July, 1930, posted in the courthouse in the town of Purvis, in said county, by said Clerk) met in Lamar county courthouse, on the 4th day of August, 1930, being the first Monday of August, 1930, and continued in session from day to day, hearing objections to assessments, taking testimony of witnesses and examining books, records and papers with reference to the assessment of property. It made such changes in the assessments (as fixed by it on the rolls at its July, 1930, meeting) that it was satisfied should be made to fix assessments of property at its actual value so as to establish an equality and uniformity of taxation according to value among the taxpayers of said County. Now, being satisfied that said assessment rolls contain assessments fair, equal, uniform and just, according to the value of the real and personal property therein described, it is, therefore, hereby ordered that the said rolls and the assessments therein now contained be and they are hereby accepted, approved and made final, and that the final recapitulations of said assessment rolls be certified to the State Tax Commission on the blanks furnished it, and as required by law."
It is contended that this notice was insufficient to confer jurisdiction on the Board of Supervisors, because the order above recited did not specifically adjudicate that the proof of publication was on file at the August meeting, showing when, and what, notice was given, and the publication and posting of the notice. Second, that it did not show that the assessor was present at the August meeting of the Board of Supervisors, as required by the statute; and, third, that the notice was published only one time in the newspaper; and that a subsequent issue of the paper was printed between the giving of the notice recited in the order and the meeting of the board the first Monday in August; and that the law contemplates that notice shall be continuously published until the board meets. The statute with reference to notice is section 3162, Code 1930, which reads as follows:
"The board of supervisors shall immediately at the July meeting proceed to equalize such rolls and shall complete such equalization at least ten days before the August meeting, and shall immediately by newspaper publication notify the public that such rolls so equalized are ready for inspection and examination. In counties having two judicial districts the board shall by order designate on what days during August it will begin in each of the two districts upon its hearing of objections, and these days shall be named in the said notice, and the board shall be authorized to hold its sessions in the two districts respectively as designated in the order aforesaid. The foregoing provision with reference to counties with two judicial districts shall apply to any subsequent meetings whereof notice to taxpayers is necessary to be given."
It is, of course, well settled in this state that a Board of Supervisors is a court of special and limited jurisdiction in assessing property for taxation, and that the records of the Board of Supervisors should affirmatively show all jurisdictional facts to have existed when the board proceeded to act in making the assessment roll final, and in its proceedings in equalizing and assessing taxes. Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Gordon v. Smith, 154 Miss. 787, 122 So. 762; McDevitt v. Walls, Miss., 122 So. 766; State ex rel. Knox v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Board of Sup'rs of Lowndes County v. Ottley, 146 Miss. 118, 112 So. 466; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Austin-Western Road Machinery Co. v. Webster County, 170 Miss. 601, 154 So. 723; People's Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192.
We are of the opinion that the order of the Board of Supervisors above set out, showing that notice was published in the Booster, a newspaper located and published in the county, and the posting of notice, as therein recited, was a sufficient compliance with the requirements of the law to confer jurisdiction. We think the recital of publication, and of posting, in the said order, necessarily show that proof of publication was on file, in accordance with the requirements of law. The recitals show publication, and the statute does not specifically require the order to recite the evidentiary facts showing that publication had been duly proven and filed by the publisher. The inference must be drawn that such was the fact, for the order does show that publication was made, and the board must have had proof of publication before it, in order to determine the facts recited in the order. It is true that this court has held that proof of publication must be on file, and that proof could not be made by production of copies of newspapers, showing publication in them, although such newspapers were required by law to be subscribed for, and kept on file in the chancery clerk's office. It is the publication of the notice in the manner prescribed by the statute above quoted that brings the taxpayers into court, and they usually get the notice from the newspaper publication. Proof of publication, as prescribed by section 1595, Code 1930, is for the purpose of showing the Board of Supervisors that publication had certainly and definitely been made, as required by law. The publication of the notice is the jurisdictional fact, while the proof of publication is an evidentiary fact, showing the board that its direction had been complied with.
The board found as a fact that the publication had been duly made; and it is the ultimate jurisdictional facts, as distinguished from the evidentiary facts, which are required to be recited in the order of the Board of Supervisors.
In People's Bank of Weir v. Attala County, supra, at page 565 of 156 Miss., 126 So. 192, 193, the court said: "Touching the further contention under this head that, admitting that the order sufficiently shows that the notice with its proof was before the board, yet the order does not show except by legal conclusion that the notice and proof were in fact in such terms as to give the board jurisdiction, we say that the recital of the order contains an express adjudication of the essential legal facts, and we see no more reason that in such an order the details shall be set out than that in an order of a board adjudging that a petition contains a majority of the qualified electors the order shall recite the names or copy the petition, or that in a judgment by default a court shall set out the details of the facts of the summons and its execution upon defendant, and when and how. Such an order last mentioned is usually in such terms as these: `And it appearing to the court that the defendant has been duly and legally summoned,' or similar words and terms. The point was expressly adjudicated against appellee's contention in Hinton v. Board of Sup'rs of Perry County, 84 Miss. 536, 546, 36 So. 565."
In Crump v. Tucker, 149 Miss. 711, 115 So. 397, it was held that the publisher's affidavit is evidence, but not conclusive, of due publication of notice. In Alvis v. Hicks, 150 Miss. 306, 116 So. 612, 615, the court said: "Appellants argue further that the recital in the two orders that ten days' legal notice had been given, as required by law, was insufficient; that the orders should have set out the manner of the giving of notice, so that it could be determined from the face of the orders whether or not the law had been complied with in that respect. We do not think appellants' contention is well founded. In each of the orders the city council adjudicated the fact that the law had been complied with, and that ten days' notice had been given, as required by law, of the equalization meetings of the city council. It was not necessary for the council to set out in its orders how the notices were published — whether by newspaper, posting, or both. Although the jurisdiction of a council sitting as an equalization board is special and limited, and the jurisdictional facts must appear on their minutes, that does not mean that in their minutes it is necessary for them to set out all the evidence constituting the jurisdictional facts."
In the recent case of Martin v. Board of Supervisors, Miss., 178 So. 315, 320, we held that in order to support judgments of courts of special and limited jurisdiction the facts conferring jurisdiction must be affirmatively found to exist, and should appear upon the records or minutes; whereas it is presumed that the necessary jurisdictional facts exist where the judgment was rendered by a court of general jurisdiction; that, where the Board of Supervisors finds a jurisdictional fact in support of the judgment in a local option election, the judgment is entitled to the same force and effect with respect to such fact as the judgment of a court of general jurisdiction; that orders of a board or court administered by men unlearned in technical requirements should not be strictly construed. This court said on page 320 of that case, "`The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law.' Noxubee County v. Long, 141 Miss. 72, 106 So. 83, 85. It is necessary for the jurisdictional facts to appear in the record; but the language in which such recitals are made need not be such as a skillful lawyer would use."
See, also, Grenada Bank v. Moorhead, 160 Miss. 163, 133 So. 666; Adams County v. Bank of Commerce, 157 Miss. 249, 128 So. 110; Scott County v. Dubois, 158 Miss. 245, 130 So. 106.
The requirement that the assessor attend the meeting of the board at which objections to the assessments are made is not a jurisdictional requirement; the purpose of having the assessor present is not to confer jurisdiction on the board, but to advise with it in reference to the matters in controversy, he having made the assessment roll originally, and in many instances having information that would be helpful in such questions as arose in regard to the assessment rolls as made by the assessor, and as corrected and equalized by the board.
The statute with reference to the publication of notice to the taxpayers does not require that publication be made in more than one issue of the paper; the statute contemplates that there may be only ten days between the act of the board in making the equalizations at the July meeting, and the act of the board in passing on objections at the August meeting; and it is quite possible, and probable, that in many cases there would only be one issue of a paper published in a particular county in the interval between the completion of the equalization, and the meeting of the board at which objections by the taxpayers would be passed on.
We find no reversible error in the case, and the judgment will be affirmed.
Affirmed.