Planters' Gin & Milling Co. v. City of Greenville

103 So. 796, 138 Miss. 876, 1925 Miss. LEXIS 96

• Court: Mississippi Supreme Court
• Decided: April 13, 1925
• Docket: No. 24747.
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree dismissing an original bill, and dissolving a temporary injunction issued thereon, wherein the appellants seek to recover one hundred and fifteen dollars paid the city tax collector on an assessment for taxes on personal property by the city alleged to be void and to enjoin the city tax collector from selling certain real property for municipal taxes claimed thereon, the assessment of which is also alleged to be void.

In February, 1922, an ordinance extending the limits of the city of Greenville was passed. This extension brought within the city limits the greater part, though not all, of the appellants ’ real property here in question. In May, 1923, by another ordinance the city limits were contracted so as to exclude certain property therefrom, but not that here in question. The assessment is for the taxes of 1923, the objections thereto being that:

(1) The ordinance of February, 1922, by which the city limits were extended is void: (a) Because it is an amendment to the city’s charter and not adopted in ac eordanee .with the provisions of section 3444, Code of 1906 (Hemingway’s Code, section 6004); and (b) because the .boundaries of the city are not therein definitely and-certainly defined.

(2) That the municipal assessment rolls of 1923 were not filed with the clerk of, nor approved by, the city council, and that no affidavit of the assessor is appended thereto that he faithfully made an assessment of all the property in said city liable to assessment which came to his knowledge after diligent inquiry.

(3) That notice of the filing of the assessment rolls with the city clerk and the date of the meeting of the city council to consider the same were not published by the assessor.

(4) That part of the real property here assessed, and which the tax collector is about to sell for the taxes thereon, is not within the corporate limits of the city of Greenville.

The city of Greenville is governed by a charter, and the only sections of the Code chapter on municipalities which apply thereto are those made applicable to all municipalities by section 3441, Code of 1906 (Hemingway’s Code section 6001), as it now appears in chapter 308, Laws of 1920. Among the sections of the chapter on municipalities which by chapter 308, Laws, of 1920, are made applicable to all municipalities, is section 3301, Code of 1906 (Hemingway’s Code, section 5797), which provides for the extension of the boundaries of a municipality by an ordinance adopted by it for that purpose. But it is said that chapter 308, Laws of 1920, fails to extend to all municipalities the provisions of section 3302 et seq., Code of 1906 (Hemingway’s Code, section 5798 et seq.), which set’forth the circumstances under which an ordinance adopted under section 3301 shall be come effective, and consequently the scheme therein pro - vided for the extension of municipal boundaries is incomplete and ineffective. There is no merit in this contention. The power granted a municipality by section 3301 to ex tend its boundaries by an ordinance is necessarily limited by other statutes which prescribe when and under what circumstances' such an ordinance can become operative, and section 3302. expressly provides that “the ordinance adopted in the preceding section shall not become operative until,” etc.

The evidence- as to whether or not the ordinance by which the limits of the city were extended .clearly and definitely sets forth the city boundaries is conflicting to such extent that we are unable to say that the court below erred in upholding- the ordinance.

Section 26 of the City’s Charter provides: “That on or before the first Monday of July of such year the assessment rolls required to be made, shall be filed with the clerk with the assessor’s affidavit appended thereto, that he has faithfully made an assessment of all the property in said city liable to assessment, which has come to his knowledge after dilig’ent inquiry. ’ ’

The city’s tax collector was introduced as a witness and identified the assessment roll from which he was collecting taxes, but it does not appear therefrom whether this is the original or a copy, or that it was ever1 filed with the city clerk. There is no affidavit by the assessor as to its correctness appended thereto.

The charter requires the assessment roll to be filed with the clerk, but not that he shall indorse its filling thereon, and it appears by agreement of counsel that the roll was in fact filed with the clerk and approved by the city council. This is sufficient.

The assessor’s affidavit as to the correctness of the roll is not for the protection of the taxpayers, and the assessor’s failure to comply therewith is of no consequence to them; consequently they cannot complain thereat. Any doubt as to this, in so far as the county assessment rolls are concerned, is removed by section 4291, Code of 1906, (Hemingway’s Code, section 6926).

Section 25 of the City’s Charter provides:

“Within the corporate limits of the city of Greenville the assessor of said city is vested with all the power and authority and is hereby required to perforin all of the duties required of county assessors by chapter 116, entitled ‘Revenue,’ of the Annotated Code of 1892 of the Laws of the State of Mississippi, and the amendments thereto, and he shall be subject to all penalties therein contained, in and so far as they are applicable to the city of Greenville, except as changed by the provisions of this charter. ’ ’

.Section 4303, Code of 1906 (Hemingway’s Code section 6937) provides: “"When the assessor returns and files the assesment rolls in the office of the clerk of the board of supervisors, he shall give notice thereof, and the date of the meeting of the board to consider the same, by publication in some newspaper published in the county, or if there be none, then bjr posting at the courthouse for the space of three weeks, and this shall be notice to all persons of the fact, and of the contents of the roll or rolls so filed; and all persons shall be held to have notice of the time within which to file objections to assessments and of the time when the board of supervisors will hear the same; and of its power to raise assessments thereat.”

This section did not appear in the Code of 1892 or any amendments thereof, but appeared first in the Code of 1906. The section of the Code of 1892, here relevant is section 3791, and reads as follows:

“The return and filing of the assessment rolls in the office of the clerk of the board of supervisors by the assessor shall be notice to all persons of the fact, and of the contents of the roll or rolls so filed; and all persons shall be held to have notice of the time within which to file objections to assessments and of the time when the board of supervisors will hear the same; and of its power to raise assessments thereat. ’ ’

Section 25 of the City Charter was adopted in 1900, and the amendments to the revenue chapter of the Code of 1892 therein referred to are, of course, the amendments thereto which were then in existence, and as here inbefore pointed out, in 1900' neither the revenue chapter of the Code of 1892, nor any amendment thereto, required the assessor to publish a notice of the filing of the assessment roll or of the meeting of the board of supervisors at which it would be approved.

The real property here involved consists of two separate and distinct tracts, one containing eleven and the other two acres. The assessment on each tract is in gross, and an appreciable portion of each (three acres of the eleven acre tract) is outside of the city limits. The city is, of course, without power to assess property not within its limits, and as the assessment here of that property which is within the city limits cannot be separated from that which is without, the whole assessment is void.

The court below committed no error in not permitting a recovery of the tax paid on the personal property, but should have made the injunction restraining the real property perpetual, and its decree, in so far as it dissolves the injunction and awards an attorney’s fee therefor, will be set aside, and a final decree making the injunction perpetual will be rendered here.

Reversed in part) aoid final .decree here.