Nickey v. State Ex Rel. Attorney-General

145 So. 630, 167 Miss. 650, 1933 Miss. LEXIS 81

• Court: Mississippi Supreme Court
• Decided: January 30, 1933
• Docket: No. 30067.
• Status: Published

Opinions

The state, on the relation of the attorney general, filed its bill in the chancery court of Tunica county against appellants, to recover of them the sum of seven thousand four hundred eighty-three dollars and twenty-two cents, the aggregate of the taxes and drainage district assessments due by appellants to the state, the county of Tunica, and the latter's taxing districts, the Yazoo-Mississippi levee district, and the Brunswick extension, and the Lake Cormorant drainage district, and the fees and damages incurred as a result of the advertisement by the tax collector of the county of appellants' lands for sale for their payment. Appellants are nonresidents of the state. The chancery court acquired jurisdiction by virtue of a foreign attachment which was levied on lands belonging to appellants in Tunica county. Appellants appeared and answered the bill. There was a trial on bill, answer, and documentary and oral proofs, resulting in a decree in favor of the state, as prayed for. From that decree appellants prosecuted this appeal.

The taxes and assessments involved are for the year 1928. The state alleged in its bill that appellants owned certain lands in Tunica county, describing them; that these lands were duly and legally assessed for taxes for the year 1928; that the taxes, damages, and costs due for 1928 were as follows: State taxes, six hundred forty-six dollars and eighty-one cents; general county taxes, nine hundred fifty dollars; highway road bond interest, sixty-six dollars and sixty-four cents; Yazoo-Mississippi levee ad valorem, and Brunswick extension, four hundred seventy-seven dollars and eighty-three cents; Yazoo-Mississippi Delta acreage, fifty-two dollars and twenty-six cents; Beat No. 2 ad valorem and bond interest, seven hundred sixty-eight dollars and ten cents; Lake Cormorant drainage district, three thousand eight hundred thirty-five dollars; printer's fee, two dollars and forty cents; clerk's fee, two dollars and sixty cents; sheriff's fee, seven dollars and fifty cents; damages, six hundred seventy-nine dollars and eight cents; total, seven thousand four hundred eighty-three dollars and twenty-two cents. That the lands on which the taxes were due were within the Yazoo-Mississippi levee district and Brunswick extension, and also the Lake Cormorant drainage district; that none of the taxes against the lands for 1928 had been paid; that the lands against which these taxes were assessed were chiefly valuable because of their growing timber; that exclusive of the timber, they were not of sufficient value to pay said taxes; that at the time of the filing of the bill, which was on the 23rd day of July, 1929, appellants were engaged in removing the timber from the lands, which, if continued, would strip them of their value to the extent that they would be insufficient to pay said taxes, and for that reason would be knocked off to the state when sold for taxes. That in addition to the lands against which said taxes were a charge, appellant owned other lands in Tunica county, which were described in the bill.

The bill prayed that all the taxes involved be declared a debt against appellants, and decree be rendered therefor, and that all the lands described in the bill be attached to satisfy such decree. Attachment was issued, as prayed for in the bill, and levied on all the lands described therein. Thereupon appellants gave a bond, as provided by statute, in the sum of fifteen thousand dollars, discharging the attachment. The case presents the following questions for decision: (1) Whether the lands were legally assessed for their ad valorem taxes.

(2) Whether section 3122, Code of 1930, declaring every lawful tax a debt, for which action may be brought, violates the due process provisions of the state and Federal constitutions (Const. U.S. Amend. 14; Const. Miss. 1890, sec. 14).

(3) Whether drainage district taxes come within the provisions of that statute.

(4) Even though drainage district taxes do not come within the provisions of that statute, whether or not, under the allegations of the bill, the state had the right to subject other property of appellants to the payment of such taxes than the property against which they are assessed.

(5) Whether the state has the right to recover the statutory fees, costs, and damages chargeable against lands delinquent for their taxes, where they have been advertised for sale by the tax collector, but not sold.

(6) Conceding that the statute includes the taxes involved, whether or not the state had the right to bring this suit before the tax collector of the county had exhausted the statutory remedies provided for the collection of such taxes.

We will consider these questions in the order stated. There is little, if any, conflict in the material evidence. The tax collector of the county, whose duty it was to collect these taxes, had advertised appellants' lands, against which they were made a charge, for sale for their payment on the first Monday in April, 1929. Shortly before the day of sale the tax collector of the county came to the conclusion that the lands would not bring a sufficient amount to pay the taxes. His representative and the attorney-general conferred in reference to the matter, and decided for that reason that the tax collector should not sell the lands for their taxes, but that the attorney-general should bring this suit to recover them. Accordingly the suit was brought; the advertisement by the tax collector for sale was discontinued; and the lands therefore were not sold by him.

There seems to be no difficulay in determining the question whether the lands were legally assessed. The members of the court are unanimous in reaching the conclusion that they were. The grounds urged against the validity of the assessments are not new; they have been passed upon by decisions of this court; therefore, we see no good purpose to be accomplished in another discussion of them.

Section 3122, Code of 1930, provides that every lawful tax assessed, levied, or imposed by the state, or by any county, municipality, or levee board, whether ad valorem, privilege, excise, income, or inheritance, shall be a debt due by the person or corporation owning the property, or carrying on the business or profession on which the tax is imposed, whether properly assessed or not, and may be recovered by action, "and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct."

This statute, except some recent additions which have no bearing on the questions involved in this case, has appeared in all of our codes, including, and since, the Annotated Code of 1892 (sec. 3747). Appellants contend that the statute denies due process, because it fixes the tax as a debt, without giving the taxpayer a hearing on the debt issue. It is true we have no statute providing for personal service of process upon the taxpayer, giving him notice and an opportunity to be heard at the meeting of the board of supervisors fixing the value of his property as the basis for taxation. But as held in George County Bridge Co. v. Catlett, 161 Miss. 120, 135 So. 217, 219, the taxpayer is given his day in court on that issue by the last clause of section 3122, which provides that, in an action to recover ad valorem taxes, the assessment roll shall only be prima facie correct.

In that case the court used this language: "If the law made the assessment roll conclusive as to the amount of taxes due by the taxpayers, the appellant's position would raise a very grave question; but that is not true, the assessment roll is only prima facie correct. That means that the presumption of its correctness is rebuttable. . . . Therefore, when an action is brought for taxes, under this statute, the taxpayer is, of course, summoned into court by process personally served, and there given an opportunity to be fully heard, and on the trial he will be permitted to rebut if he can, the prima facie correctness of the assessment roll" — citing McMillen v. Anderson, 95 U.S. 37, 24 L.Ed. 335.

In Wells Fargo Co. v. Nev., 248 U.S. 165, 39 S.Ct. 62, 63 L.Ed. 190, the Supreme Court held that it was no longer an open question that if a person against whose property a tax assessment has been made shall at any time in the course of the proceedings, before conclusive judgment be rendered, be given an opportunity to contest its correctness, he is afforded due process of law; that there is no denial of due process "in a tax assessment because the valuation was made without notice to the taxpayer, or without an opportunity afforded to be heard, where the mode of enforcing the tax is by a judicial proceeding wherein process issues, and an opportunity is afforded for a full hearing, and only after there is a judgment sustaining the tax is payment enforced."

Notwithstanding this statute has been before this court in several cases, its constitutionality seems not to have been challenged until the George County Bridge Co. case came up. See Illinois Central R.R. Co. v. Adams, 78 Miss. 895, 29 So. 996; Powell v. McKee, 81 Miss. 229, 32 So. 919; Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190; Carrier Co. v. Quitman Co.,156 Miss. 396, 124 So. 437, 125 So. 416, 66 A.L.R. 614; Enochs v. State, 128 Miss. 361, 91 So. 20.

The assessed value is the basis of the debt declared by the statute. It is the valuation fixed by the taxing authorities, upon which the tax levy is to be made. Before that valuation can be conclusively fixed and become the basis of a debt for which an action may be brought, the taxpayer must have his day in court on personal service of process. The last clause of this statute furnishes such a hearing in providing that the assessment roll shall only be prima facie correct. If it is only prima facie correct, that means, of course, the taxpayer is given an opportunity to show the correct valuation; and, in attempting to do so, the same considerations are taken into account as would have been by the board of supervisors at its equalization meeting where the taxpayer had challenged the assessment. The fact that appellants are nonresidents has no bearing on this question, because they appeared and answered the bill. They were before the court, and stood exactly like they would, had they been residents of the state, and had been personally served with summons.

It is true that in the Delta Pine Land Company case, and in the George County Bridge Co. case, the taxpayers had, before suit was brought, appeared before the board of supervisors and contested their assessments. We are unable, however, to see how that, on principle, differentiates this case from those cases. In other words, in those cases the taxpayers had two hearings on the issue of the valuation of their property, and in the case at bar the taxpayer had only one hearing. Due process requires only one hearing; not two.

Section 3122 of the Code does not cover drainage district taxes; it only covers state, county, municipal, and levee board taxes, "whether ad valorem, privilege, excise, income, or inheritance." The state contends, however, that because of the following facts it had the right to fix the drainage taxes as a charge on the other lands owned by appellants, which were attached. Those facts were that appellants were denuding their lands in the drainage district of their timber, which constituted their principal value; that they would continue to do so until there would be nothing left except the land, which would be insufficient in value to pay the other taxes and the drainage assessment against them for 1928; that when the timber was removed appellants would permit the lands to sell to the state for state and county taxes, and there would be nothing left to pay the drainage assessments; that under the law the drainage assessments were a lien, not only against the land, but the timber standing thereon. The state's contention is that under the law the fact that appellants were destroying the timber, which was part of the security for the payment of the assessments, gave it the right to resort to other property owned by appellants for the payment of the assessments, although such assessments are not debts for which a personal judgment may be recovered.

Under our drainage district statutes the assessments are a charge alone on the lands against which they are assessed. They do not constitute a debt against the landowner, and cannot be enforced as such. No other property of the landowner can be subjected to their payment. The question is whether the timber, when it is removed, is entirely freed from the assessment, regardless of what the purpose of the landowner is in removing it.

This exact question was not decided in Matthews v. Panola-Quitman Drainage District, 158 Miss. 647, 130 So. 910, 911; but the principles there laid down, carried to their logical conclusion, can mean nothing else, except that the landowner has the absolute right to remove the timber from his lands in a drainage district, regardless of what his purpose is. The court used this language in that case: "We hold it was not within the legislative purpose — and therefore is not within these drainage acts — to prevent the removal of the timber at any time and for any purpose desired by the owner, and this, too, without any payment of the installments of assessment to become due on the land subsequently to the removal."

It would not be practical for the courts to inquire into the question as to what the purpose of the landowner was in removing the timber. As long as the timber stands, the assessments against the land are a lien on the timber, as well as on the land; but when the timber is removed it is freed from the lien, and, as stated, there can be no inquiry into whether such removal was rightful or wrongful, wise or unwise. It is an absolute right. The purchasers of the bonds of these drainage districts are given notice by the drainage statutes that the dominating purpose in forming these districts is to remove a very large part, if not all, of the timber on the lands, in order to devote the lands to agricultural purposes and promote the public health. We conclude, therefore, that the state had no right to charge any other property owned by appellants outside of his lands in the drainage district, with the payment of the drainage assessments, upon the ground that a part of their security had been destroyed by appellants in the removal of the timber from the lands against which they were assessed.

Appellants gave a bond to discharge the attachment in the sum of fifteen thousand dollars. The condition of the bond is that appellants satisfy any decree which the court might render against them. There is no merit in the contention that appellants are liable on this bond for any drainage assessments the court might find to be due by them, regardless of whether such assessments were chargeable against other lands than the lands against which they are assessed. The condition of the bond must be construed in the light of the decree sought by the state with reference to the drainage assessments. There was not question that the drainage assessments were valid liens on the lands against which they were assessed. It was sought to charge them as liens on other lands. Under the views we have expressed, this cannot be done. Therefore, there is no liability on the bond, so far as the drainage assessments are concerned.

Appellants contend that there could be no resort to section 3122 until the tax collector had exhausted the statutory scheme of collecting. We think Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, 194, is a complete answer to that contention. In that case the tax collector had not exhausted the statutory remedy for the collection of the taxes. It was a back assessment and suit by the state revenue agent to recover the taxes. The court held that the statute declaring taxes a debt for which suit might be brought created an additional and more effective remedy by which the nature of the tax obligation was changed to that of a debt, and applied as well to back taxes as to current taxes; that the statutory method of collecting back taxes was not exclusive; that the statute creates a new obligation to pay the taxes, as well as a new remedy for their collection, and that the word "action" in the statute does not confine the remedy to courts of law. In discussing the question whether the statutory methods for the collection of taxes had to be exhausted before action could be brought under this statute, the court used this language: "Nor is there anything in the proposition that the remedy provided by section 4740 should be exhausted before resort is had to the remedy provided for by section 4256. Three authorities are cited in support of this proposition, but they all apply only in the absence of statutes like section 4256. We are therefore clearly of the opinion, first, that the remedy provided by section 4740 is not exclusive of the remedy provided by section 4256, where back taxes are involved; but that either may be pursued without reference to the other; the remedy provided by section 4256 being merely cumulative and additional to that provided in section 4740."

As we view it, in order to hold that the state had no right to bring this suit, much of what was decided in that case would have to be overruled. We have not a case here where the state has interfered with the collection of these taxes by the tax collector through the statutory scheme. It was agreed in the record that the tax collector abandoned the statutory scheme, and agreed for the state to bring this suit. The suit is the result of cooperation between the attorney-general and the tax collector. It was thought by them that the taxes might be collected by this suit, but probably could not be by the tax collector. This is not a case where the state has pushed the tax collector out of its way, and taken charge of the situation. It is therefore unnecessary to decide in this case how far the state can go in interfering with the tax collectors in the performance of their statutory duty in the collection of taxes. If the state must wait until the tax collectors have exhausted the statutory remedies for the collection of taxes section 3122, declaring taxes a debt for which suit may be brought, would be utterly useless. To illustrate, the tax collector pursued the statutory scheme; the lands of the taxpayers are knocked off to the state for their taxes, costs, and damages. The result is that the taxes are paid, and the taxpayer owes no taxes for which suit may be brought.

The chancellor, in his decree, awarded the state the costs of advertising the lands by the tax collector, and the tax collector's statutory damages for collecting delinquent taxes. We are unable to see how the state was entitled to recover these costs and damages. It is true, the lands had been advertised by the tax collector, but they were not sold. The statutory scheme for the collection of the taxes through the tax collector was abandoned. He did not earn his commissions and costs. For those reasons it appears to us that these costs and damages were not recoverable by the state.

The result of these views is that the decree appealed from is affirmed as to all the taxes except the drainage assessments, and that part of the decree awarding the state the tax collector's costs and damages.

Reversed in part and affirmed in part.