Davis v. Schmidt

68 Miss. 736

• Court: Mississippi Supreme Court
• Decided: April 15, 1891
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the court.

The appellee claims to derive title to the lands in controversy through a sale made on the 4th day of May, 1868, to the board of liquidating levee commissioners, for non-payment of liquidating levee taxes, alleged to have been due thereon for the year 1867.

The 2d section of the act of February 13, 1867, to provide for the payment of all debts and liabilities contracted or assumed, and all scrip or evidence of debt issued by the general board of levee commissioners, etc., makes the taxes levied by the act payable on the 1st day of May in each year, and the 3d section of the act directs the lands so in default to be sold on the 2d Monday in May of each year. The taxes were not paid on these lands on the 1st day of May, 1868, and the same were sold, not on the 2d Monday in May, but on the 1st Monday in that month. Thus the question is presented, did this sale, made confessedly one week in advance of the day fixed by law for the sale of lands delinquent for taxes, convey any valid title ? The question involves the construction of the statute, and is one of legislative intention purely, and not one of legislative power.

By the 2d section of the act, payment of taxes is contemplated to be made on or before the 1st day of May, and by the 3d section a sale of the lands is directed, if there be default made in payment, on the 2d Monday in May. A literal adherence to the words of the 2d section will deprive the tax-payer of the privilege and power of paying after the 1st day of May. It is true the taxes were due on May 1st, but it is not true in that sense which made them subject to sale for default in payment of taxes due thereon. Until the lands are directed to be sold, it cannot be reasonably affirmed that there has been that delinquency which authorizes and requires a sale. The general scheme of our tax laws does not contemplate any imposition of burdens upon others than delinquent taxes. If the tax-payer had paid, in accordance with law, or if his lands were sold while he yet had the right to pay, in accordance with law, he could not be said to be delinquent and should not be subjected to the penalty visited upon delinquents.

In the case at bar, the tax-payer should have paid on or before the 1st day of May, but if he did not he might pay at any subsequent time prior to the day when his taxes were due in such sense as made his lands liable to sale for final default in payment. The intervening period between the first day and the second Monday in the month were days of grace in which the tax-payer might still pay.

This view meets the spirit of our scheme of taxation, and does no violence to its letter, taken as one harmonious whole. Nor is this view at all at variance with the utterances of this court in Nevin v. Bailey, 62 Miss. 433, and other later opinions on this general subject. In the first named case, the remarks of the court had reference to a sale made on final default in payment of taxes, and a sale after the days of grace bad expired, on the day fixed by law when the lands were liable to sale for such final default.

We find it unnecessary to consider the other question presented, as this opinion disposes of the case as it now stands.

Reversed and remanded.