Mergenthaler Linotype Co. v. Watkins

Counsel

Witherspoon Corey, of Meridian, and T.J. Wills, of Hattiesburg, for appellant. It is a well known rule of law that taxation statutes are to be strictly construed against the state and in favor of the taxpayers. 61 C.J. 168; Meridian Vicksburg R.R. Co. v. State, 62 Miss. 105 . Section 3238, Code of 1930, provides that the unpaid taxes shall be collected by distress and sale. In Words and Phrases, Volume 3, page 2132-3, we find this: "Distress is itself not an action, but a remedy summary in its nature and extraordinary in its character, a process whereby personal chattel is taken from the possession of one to secure satisfaction for a demand, formerly remaining in the hands of the distrainor as a pledge to compel performance, now from the first taking in the custody of the law." Hewitson v. Hunt, 8 S.C. 106 ; Marshall v. Wadsworth, 10 A. 685 , 64 N.H. 386 . In these definitions the outstanding feature is that the property must be seized or taken into the possession of the distrainor, and held for the satisfaction of the demand. We respectfully submit that if possession is released under any pretext whatever, the distress ceases. To grasp the full meaning of the statute, it must of necessity be considered as a whole. After reciting that unpaid taxes shall be collected by distress and sale of the property liable therefor, after providing for the place where sale shall be held and for the time and manner of advertising the sale, the statute then proceeds with the following language: "And the collector shall be allowed to collect and retain in addition to the taxes, fees and costs, all necessary expenses of removing and keeping the property distrained." We respectfully submit that the only reasonable construction to be placed on the statute and the legislative intent is that the collector was to seize the property and keep it until the date of sale, for all of which he would receive his fees, costs and necessary expenses. Any other construction would engraft something into the statute that cannot be found in its language and that was not intended by the legislature. The tax collector has no authority whatever other than obey the letter of the law. We respectfully submit that there is no authority in the statute for the action of this sheriff in releasing the property, that such action voided the distress, making the sale subsequently held thereunder void as well, and the title of the purchaser a nullity. Consequently, the judgment of the lower court is erroneous and should be reversed and judgment rendered here for the appellant. In this instance, the property was too cumbrous to be removed and it was not removed. But in holding the sale the collector could not be inconvenienced to the extent of obeying the letter of the law. The sheriff testified that there were two or three bidders present. The property was locked up in a building two and one-half blocks away. While the sheriff made a pretense of obeying the law by offering the separate items, it was only a pretense. The bids made certainly could not represent the true worth of the property when made under such circumstances. Stuard v. Southern Engine Boiler Works, 100 Miss. 895 , 57 So. 218. Sections 3259 and 3260 of the Mississippi Code of 1930 provide for notice to lienors of sales of real property for taxes. These notices are given before the period of redemption expires. We respectfully submit that the underlying reason for the enactment of sections 3259 and 3260 was to bring tax sales of real property within the provisions of Article 14 of the Constitution of the State. We further submit that this court, in the Stuard case, held, at least by implication, that sales of personal property should follow the same procedure as sales of real property. Since, in sales of real property, notice must be given to the lienors during the period of redemption, and since there is no period of redemption from a sale of personal property, it must necessarily follow that notice must be given to the lienor before the sale of personal property is held. It would have been an easy matter for the sheriff to have found that the appellant's rights existed and to have given the appellant notice that those rights were in jeopardy. Yet no effort whatever was made to do this. We respectfully submit that such a sale as this, made without notice to the appellant, deprived the appellant of certain existing property rights without due process of law and was in violation of the Fifth Amendment of the Constitution of the United States and Article 14 of the Constitution of the State of Mississippi. It follows that the sale was void and the lower court should have so held. Argued orally by Lyle V. Corey, for appellant.