Yazoo & M. v. R. Co. v. Lane Bayou Drainage Dist.

Counsel

Chas. N. Burch, H.D. Minor and A.W. Shands, for appellant. This is a suit by the railroad company to cancel a drainage district assessment against it as to certain lands on the ground that it does not own those lands and yet is obliged to pay the assessment thereon, because the sheriff will not accept the payment of any taxes from it unless these are included. The difficulty about the case lies in the fact that when this assessment was filed, the law provided an opportunity for a correction of this wrongful assessment and the railroad company did not avail itself of that opportunity. Acts of 1914, chapter 269, page 337. The general principle applicable to cases of this sort is well recognized and is nowhere better stated than by Judge HANDY in Webster v. Skipworth, 26 Miss. 349 -350. It is our contention, first, that this judgment is a mistake and should be corrected by a court of equity, "upon the intrinsic equity of the particular case." Second, that the judgment was " without authority of law, " beyond the jurisdiction of the commissioners and the board of supervisors and, therefore, void, and should now be cancelled — both under general principles of equity and under section 533, Code of 1906 (Hemingway, section 290). The board of drainage commissioners having assessed benefits to the land in question against the true owner, The distinction between pursuing the statutory remedies for mere irregularities and the right to resort to equity where an assessing board is acting without jurisdiction is well established in authorities. Briscoe v. McMillan, 117 Tenn. 127 ; Nashville Labor Temple v. Nashville, 146 Tenn. 441 , Proceedings in this case authorized by section 533, Code of 1906 (section 290, Hemingway's Code). This section has been applied by this court in a variety of cases. In all of these cases the distinction for which we are contending is recognized, that is, that while a mere irregularity must be corrected before the assessing officers or by appeal to the circuit court, yet a court of equity will cancel an assessment and enjoin a collection of taxes where the assessing body acted without jurisdiction and where, therefore, the assessment is void. Anderson v. Ingersoll, 62 Miss. 73 ; Portwood v. Baskett, 64 Miss. 216 ; Board v. Ames, 3 So. 37; Meridian v. Ragsdale, 67 Miss. 86 ; Browning v. Matthews, 73 Miss. 343 ; Railroad v. Matthews, 73 Miss. 648 . In the instant case, as shown by the bill, the complainant herein has no adequate remedy at law. The tax herein involved runs for a period of twenty years and a resort to an action at law to recover taxes illegally exacted, if such an action would lie, would involve complainant in twenty separate actions and, of course, such proceeding is not an adequate remedy. The rule of the Mississippi statute, as applied by this court in the several decisions above referred to, is the general rule in the other states of the United States. Cooley on Taxation, section 1652. Injunctions have been issued in a number of cases to prevent the collection of a tax assessed against property which the taxpayer does not own. Kelly v. Jones, 290 Ill. 375 , 8 A.L.R. 792. Jurisdiction lacking with respect to this particular assessment. It may be urged that the board of supervisors had general jurisdiction under the statute to make an assessment of benefits and that, since such general jurisdiction existed, the error in making the assessment against the railroad company was merely erroneous exercise of that jurisdiction. The answer to this is found in McHenry v. State, 91 Miss. 562 , 575-578; Windsor v. McVeigh, 93 U.S. 274 ; Ex parte Lange, 18 Wall. 163; Ex parte Burden, 92 Miss. 27 ; Rudd v. Rudd (Ky.), 214 S.W. 793. Tested by the above principle, the assessment of benefits to the land in controversy against the railroad company was void and a nullity — "Without authority of law" — because the court (the board of supervisors) had no jurisdiction to make any such assessment even though it had general jurisdiction of the subject matter and even thought it to be admitted, which we deny, that it had jurisdiction of the parties. Clark, Roberts Hallam, for appellees. I. The appellant admits that the assessment roll of the drainage district was duly made and filed by the commissioners of the district; that due notice was given to the landowners in the district of the filing of the roll, and that at the proper time the board of supervisors duly approved the roll, and it became a final judgment; all in accordance with chapter 269, Laws of 1914; that no complaint against the assessment was filed with the board of supervisors, and that no appeal was taken from the order of the board, approving the assessment roll within twenty days as provided for in the act. Under this state of facts the appellant has waived any objection it may have had to the assessment. Minyard v. Pelucia Drainage 102 So. 259. The appellant having slumbered on its right to appeal to the courts from the assessment within the time allowed by law whereby it had a full, adequate and complete remedy, it is now precluded from attacking the assessment, and equity will not aid it under the circumstances. Wray v. Cleveland State Bank, 98 So. 442; Darnell v. State Revenue Agent, 109 Miss. 570 , 68 So. 780; Anderson v. Ingersoll, 62 Miss. 73 , 75; Board of Supervisors v. Ames, 3 So. 37. II. Board of supervisors had jurisdiction of the subject matter. It is contended on behalf of appellant that the rule laid down in the above authorities does not apply in the instant case because of "special circumstances" which authorize a resort to a court of equity despite the former judgment, and that these special circumstances consist in the fact that the board of supervisors was without authority to make this particular assessment because the same land is alleged to be assessed elsewhere in the same assessment roll. The fundamental fallacy of appellant's argument is that it assumes that it is important that the land was assessed to the Yazoo Miss. Valley Railroad Company, and not to the true owner, so far as this particular assessment is concerned. Under section 7, chapter 269, Laws of 1914, at page 336, where directions as to the making of the assessment roll by the commissioners of the district are given, it is provided: "They shall place opposite each tract of land the name of the supposed owner, as shown by the last county land assessment; but a mistake in the name shall not vitiate the assessment. " This is the rule even in the case of assessments of land for ad valorem taxes. The assessment in this case is against the land and not against the person; it creates a mere lien on the land. Minyard v. Pelucia Drainage Dist., 98 So. 225, 227. But the appellant says that the same land is assessed on the same roll to other parties. What if it is? What business is that of appellants if it does not own the land and there is no obligation to it to pay the assessment? The record does not show whether this assessment was first made, or the other assessment, nor as to which appears first on the assessment roll. If this assessment appears first on the assessment roll, and the board examined the roll in the order in which the assessments appear on it, and if this exhausted the board's power over the land, then the other assessments are void. III. The chancery court without jurisdiction. Section 290, Hemingway's Code is not applicable. That section gives the chancery court jurisdiction to restrain the collection of taxes. The drainage district and its commissioners are not in any way attempting to collect taxes. The collection of taxes is the business of the tax collector and the tax collector of Bolivar county is not a party to this suit. Besides, this suit is not for injunction, but for cancellation. Further, the benefits assessed against these lands are not taxes in the commonly accepted sense of the term, but are special assessments. Cox v. Wallace, 100 Miss. 525 , 541; Jones v. Belzoni Drainage Dist., 102 Miss. 796 , 799. But assuming that special assessments are taxes within the meaning of the statute, still the statute does not apply unless the tax is levied "without authority of law," and we have shown that the board of supervisors had complete authority in the premises. Nor did the chancery court have jurisdiction of the suit as one to recover an illegal tax paid under protest. Town of Louisville v. Armstrong, 113 Miss. 385 , 388. IV. Tender of legal taxes all that was required of appellant. There was no necessity for the complainant to resort to any court in this matter. If it did not own this land, it had a perfect right to tender to the tax collector all taxes due by it on land which it did own, and this would have prevented the tax collector from selling the appellant's property. The appellant could have no care whether the tax collector sold this particular land for this assessment or not. Jones v. Burford, 26 Miss. at 197. See, also, 26 R.C.L., p. 379, sec. 338; 26 R.D.L., p. 400, sec. 359. Nor did the tax collector have the right to refuse to accept the amount of the legal taxes due by the appellant unless this special assessment should also be paid. The appellant had the right to pay on any part of its land, and let the rest of its land be sold for taxes and the tax collector could not lawfully refuse to accept such payment. See, also, 27 A. E. Encyc. Law (2 Ed.), 747, 751. The decree of the court below should be affirmed. Argued orally by Chas N. Burch, for appellant.