Opinion
No. 30772.
November 20, 1933. Suggestion of Error Overruled January 1, 1934.
1. TAXATION.
Assessment for local improvements must be for public purpose.
2. TAXATION.
Where land sold to state for taxes is not redeemed, all taxes thereon remain in abeyance until land is sold by state (Code 1930, sections 3264, 4488).
3. TAXATION.
Statute providing that sale of land for taxes conveys perfect title to purchaser held to convey title in fee simple except in so far as title is qualified by other provisions creating lien (Code 1930, sections 3120, 3249, 3256, 3264, 3273, 4448, 4488).
4. TAXATION.
Purchaser of land at tax sale does not receive land free from lien of drainage assessments thereon (Code 1930, sections 3120, 3249, 3256, 3264, 3273, 4448, 4488).
5. TAXATION.
Statutory construction that purchaser of land on sale for state and county taxes does not receive land free from lien of drainage assessments held not unconstitutional as releasing, postponing, or diminishing taxes (Code 1930, sections 3120, 3249, 3256, 3264, 3273, 4448, 4488; Constitution 1890, section 100).
6. DRAINS.
Sale of land for nonpayment of drainage assessment does not relieve it from lien for other assessments thereafter to become due (Code 1930, section 4488).
7. DRAINS.
Chancery clerk is required to collect, from person offering to redeem land from sale for nonpayment of drainage assessments thereon, all drainage assessments that have accrued since sale (Code 1930, sections 3264, 4488).
8. TAXATION.
Bill offering to redeem land from state by payment of state and county taxes held demurrable, where complainant did not offer to pay drainage assessment thereon for nonpayment of which land had been sold to state (Code 1930, sections 3120, 3249, 3256, 3264, 3273, 4448, 4488; Constitution 1890, section 100).
APPEAL from Chancery Court of Quitman County.
Howie Howie, of Jackson, for appellant.
State and county taxes are a lien on property from the first day of January of the year in which the assessment shall be made, and are entitled to preference over all judgments, executions, encumbrances and liens whensoever created.
Sections 3120, 3256, 3273, Code of 1930.
The purport of these legislative enactments for the collection of revenue for the running of the government of the state of Mississippi, sections 3120, 3256, 3273, Code of 1930 in effect says to the purchaser: You purchase property sold for state and county taxes and if the same is not redeemed within the statutory period the state guarantees you a perfect title to the property free and clear of all liens and encumbrances of any kind and character.
The contention of the appellees is that a special tax levied upon property in a particular locality is equal or superior to a tax levied by the state of Mississippi upon the same property. In other words, appellees contend that the special assessment and tax on property in Quitman county is of greater importance than a tax levied by the state of Mississippi, for the entire state of Mississippi, and all of the citizens therein. Section 112 of the Mississippi Constitution provides that taxes shall be equal and uniform throughout the state. To sustain the contention of appellees would be nullifying this provision of our state constitution, because it would in effect be saying that drainage district and school taxes in Quitman county are superior to state ad valorem taxes there, but in Hinds county, where there is no drainage district, state and county taxes would be superior.
Counsel for appellant interpret section 112 of the Mississippi Constitution to mean that state and county taxes shall be equal and uniform in each and every county in the state of Mississippi. That the statute providing for the collection of state and county taxes shall have the same force and effect in each and every county in the state of Mississippi.
There is no provision in section 4469, Code of 1930, or any other section in regard to assessments for drainage taxes whereby the Legislature has declared that such assessments shall be superior to state and county taxes, or even equal with the same. Unless such a legislative declaration has been made in clear and uncertain terms, then a sale for state and county taxes vests in the purchaser thereof a perfect title. To hold otherwise would be to endanger seriously the government of the state of Mississippi.
La Mesa, Lemon Grove S.V. Irr. Dist. v. Hornbeck, 17 P.2d 143; Lister v. Riddle, 296 P. 770; Andrews v. North Side Canal Co., 12 P.2d 263; Pennsylvania Co. v. City of Tacoma, 79 P. 306; State v. Board of Com'rs of Cascade County, 296 P. 1; Heffner v. Ketchen, 296 P. 769; Little Red River Levee Dist. v. State, 52 S.W.2d 46.
The contention of appellant is that where land has sold for state and county taxes and the title was matured in the purchaser, then such purchaser has a perfect title to the property, which means that the property is free and clear of all claims for drainage assessments both delinquent and unmatured.
Section 3273, Code of 1930.
This case must be decided, we say primarily, upon the laws in force in the state of Mississippi, applicable thereto, but we may also look to the decisions of other states in regard to the effect of the sale of lands for state and county taxes, and in connection therewith we cite the following cases:
Lucas v. Purdy, 120 N.W. 1063; Dougherty v. Henarie, 47 Cal. Rep. 9; White v. Thomas, 98 N.W. 101; Clark v. Zaleski, 253 Ill. 63; 61 C.J., sec. 1839.
Burch, Minor McKay, of Memphis, Tennessee, for appellee.
The Legislature never designed that land which has undergone a tax sale shall enjoy any greater exemption from the burden of taxation than other lands. No immunity from taxation attaches to any land merely by virtue of its having passed through a tax sale.
The Legislature never designed that land enjoying the benefits of a school and a drainage project, as a result of which its value is greatly enhanced, should ever escape liability for the expense of those improvements.
Section 3272, Code of 1930.
Ch. 195 of the Acts of 1912 as amended by ch. 269 of the Acts of 1914; Seward v. City of Jackson, 165 Miss. 478; Union Sav. Bank v. Jackson, 122 Miss. 388; Board of Com'rs v. Garland Levee District, 181 Ark. 898, 28 S.W.2d 721; St. Louis Union Trust Co. v. Franklin Trust Co. (C.C.A.), 52 F.2d 438.
The party redeeming must pay all accrued taxes.
Sec. 3264 of the Code of 1930; Sec. 3267, Code of 1930; Sec. 3270 of the Code of 1930; Sec. 3152, Code of 1930.
An enforceable lien for payment of school district and drainage district bonds accrues only from the time the board of supervisors levies, as the statute authorizes and requires it to do, a tax for those purposes for a particular year. Such taxes, therefore, come in exactly the same category as state and county taxes which become a lien for each year on January 1st of that year.
Vicksburg, etc. R. Co. v. Nattin (C.C.A.), 58 F.2d 979; McAnally v. Little River Drainage District (Mo. Sup.), 28 S.W.2d 650.
To sustain the contention of the appellant here would constitute a violation of the guarantee of due process contained in the Fourteenth Amendment and the guarantee in the same amendment against the deprivation of the equal protection of the law. It would equally be a violation of the Mississippi constitutional provision to the same effect.
The decision in the case of Goff v. Jacobs, 145 So. 729, in no respect interferes with the contentions made for the appellees here.
James McClure, of Sardis, for appellees.
Although the drainage lien attaches to the land from the date that the same is levied by the court, nevertheless the same does not accrue to the land and become a fixed encumbrance thereon until the board of supervisors determines, orders, and levies the amount of the installment of benefits to be collected in each year.
Chapter 195 of the Mississippi Laws of 1912; Sections 4469 and 4470 of the Mississippi 1930 Code; Section 4492, Code of 1930.
It is true that the lands in question became bound for the amount of the assessment from the date that the assessment of benefits was confirmed by the chancery court and it may be said that the lien under the assessment then attached to the lands. However, this lien could only accrue to the land for foreclosure purposes by tax sale when the annual tax levy is made by the board of supervisors. It is then that the debt becomes ascertained and fixed and accrues to the land.
McAnally v. Little River Drainage District, 28 S.W.2d 650; Elsberry Drainage District v. Winkelmeyer, 278 Mo. 268, 212 S.W. 893; State v. Ryan (Okla.), 221 P. 761; Gilmor v. Dale, Tax Collector (Utah), 75 P. 932; Black on Tax Titles, 189; Dowdney et al. v. The Mayor, etc., 54 N.Y. 186; City of Portland v. Multnomah Co. (Ore.), 296 P. 49; American Agri. Chemical Co. v. Brock (N.C.), 151 S.E. 869; Larson v. Gilderoy (Idaho), 267 P. 234; Branch v. Saunders, 141 S.E. 593, 195 N.C. 176; Baldwin v. Frisbie (Wash.), 270 P. 1025; Field v. Porter, 270 P. 1027; Turley v. St. Francis Rd. Dist. No. 4 (Ark.), 287 S.W. 196; Taylor v. Richardson, 176 N.C. 217, 96 S.E. 1027; State v. Stuart, 283 P. 305, 41 Idaho, 126; Wilson v. Matteson, 177 P. 746, 25 N. Mex. 67; Adams v. Lumber Co., 114 Miss. 545.
Section 4469 of the 1930 Code provides that a drainage lien shall continue until the drainage assessment is paid and the revenue laws of this state preserve this lien until the drainage assessment is paid in full and do not provide for the cancellation of the same on the sale of property therein for state and county taxes.
Carrier Lumber Mfg. Co. v. Quitman County, 125 So. 416; 2 Sutherland on Statutory Construction (2 Ed.), par. 487; Hammer v. Yazoo Delta Lbr. Co., 100 Miss. 349; Middleton v. Lincoln County, 122 Miss. 673; Gamet's Estate v. Lindner (La.), 106 So. 22; Seward v. City of Jackson, 165 Miss. 478, 144 So. 686.
Section 4469 of the 1930 Code provides that the drainage lien shall continue until the drainage assessment is paid.
Price v. Harley, 142 Miss. 584, 107 So. 673; Baldwin v. Frisbie, 270 P. 1025; Turley v. St. Francis Co. Road Improvement Dist. No. 4 (Ark.), 287 S.W. 196; Ledegar v. Bockoven County Treas. (Okla.), 185 P. 1097; City of Indianapolis v. City Bond Co. (Ind.), 84 N.E. 20.
Even if the court should hold otherwise, under the laws of the state of Mississippi the sale of land for delinquent taxes to an individual does not remove the lands from the field of taxation in the future.
Carrier Lumber Mfg. Co. v. Quitman County, 106 Miss. 397; Bank T. Co. v. City of Jackson, 122 Miss. 557; Erwin v. Lee, 118 Miss. 207, 79 So. 104.
Section 4469 of the 1930 Code provides that the drainage assessment shall continue until the benefits are paid which provision of law constitutes a material part of the contract of the purchasers of the bonds of the district and if the court should hold that the sale of the lands of the district for delinquent state and county taxes cancelled this lien, this holding would be tantamount to impairing the obligation of the bondholders' contract and will offend the Federal and state Constitutions in this regard.
Nelson v. Pitts, 126 Okla. 191, 259 P. 533, 53 A.L.R. 1137.
Argued orally by Joe Howie and W.B. Fontaine, for appellant, and by H.D. Minor and James McClure, for appellee.
This is an appeal from a decree sustaining a demurrer to and dismissing an original bill of complaint.
The Panola-Quitman drainage district was created on January 4, 1923, under chapter 195, Laws of 1912, and the amendments thereto. On November 5, 1923, the land composing the district was assessed, in accordance with the statute, for the benefits accruing to it because of the formation of the district. Thereafter, negotiable bonds of the district were issued and sold in accordance with the statute, which bonds have not been paid.
The state and county taxes and drainage assessments on the land for 1929 were not paid, and on April 7, 1930, the sheriff and tax collector sold the land, in accordance with law, to the appellant therefor. The state, county, and drainage assessments for 1930 were not paid, and on May 4, 1931, it was again sold therefor; the state becoming the purchaser thereof.
When the period for the redemption of the land from the sale to the appellant had expired, he received his tax deed thereto and offered to redeem the land from the sale in 1931 by payment of the state and county taxes for which it was sold. The chancery clerk declined to permit him so to do, unless he also paid the drainage taxes thereon, for the nonpayment of which the land was also sold to the state. This the appellant declined to do, and afterwards exhibited this bill of complaint against a number of known, and all unknown, persons interested therein, and prayed for a confirmation of his tax title, for the cancellation of any lien thereon for the payment of drainage assessments accruing since he purchased the land, and for an order directing the chancery clerk to permit him to redeem the land from the sale to the state by paying only the state and county taxes for which it was sold, which taxes he offered in his bill to pay.
No question of procedure or jurisdiction that might be here presented is raised by counsel for the appellees. The only question argued by them, and to which this opinion will be confined, is whether the appellant received the land under his tax deed freed from any lien for drainage assessments thereafter accruing thereon.
Chapter 195, Laws of 1912, and the amendments thereto by chapter 269, Laws of 1914, and chapter 303, Laws of 1926, were brought forward into the Code of 1930 as section 4448 et seq. Sections 3120 and 3256, Code 1930, which also appeared in the Code of 1906, are as follows:
"3120. Taxes, both state and county, assessed upon lands or personal property, shall bind the same, and be entitled to preference over all judgments, executions, encumbrances, or liens, whensoever created; and all taxes assessed shall be a lien upon and bind the property assessed, from the first day of January of the year in which the assessment shall be made; and no property shall be exempt from distress and sale for taxes. And it shall not be necessary to the validity of an assessment, or of a sale of land for taxes, that it shall be assessed to its true owner; but the taxes shall be a charge on the land or personal property taxed, and the sale shall be a proceeding against the thing sold, and shall vest title in the purchaser, without regard to who may own the land or other property when assessed or when sold, or whether wrongfully assessed, either to a person, or to the state, or any county, city, town, or village, or subdivision of either."
"3256. The tax collector shall on or before the first Monday of June transmit to the clerk of the chancery court of the county separate certified lists of the lands struck off by him to the state and that sold to individuals, specifying to whom assessed, the day of sale, the amount of taxes for which the sale was made and each item of cost incident thereto, and, where sold to individuals, the name of the purchaser, to be separately recorded by the clerk in books kept by him for that purpose. The said lists shall vest in the state or the individual purchasers thereof a perfect title to the land sold for taxes, but without the right of possession and subject to the right of redemption; but a failure to transmit or record a list, or a defective list shall not affect or render the title void. If the sheriff or clerk shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default in the penal sum of twenty-five dollars, and also on his bond for the actual damages sustained. The lists hereinabove provided shall, when filed with the clerk, be notice to all persons in the same manner as are deeds when filed for record."
Section 3273, Code of 1930, which also appeared in the Code of 1906, after setting forth the form of the tax deed to be executed to individuals purchasing at tax sales when land has not been redeemed therefrom within the statutory period of two years, proceeds as follows: "Such conveyance shall be attested by the seal of the office of the chancery clerk and shall be recordable when acknowledged as land deeds are recorded, and such conveyance shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes; and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale, or that the sale had been made at the wrong time or place; and, if any part of the taxes for which the land was sold was illegal or not chargeable on it, but part was chargeable, that shall not affect the sale nor invalidate the conveyance, unless it appear that before sale the amount legally chargeable on the land was paid or tendered to the tax collector."
Section 4469, Code 1930, which appeared in chapter 269, Laws of 1914, requires the chancery court to assess the benefits accruing to land because of the formation of a drainage district, and provides that the assessment so made shall be payable in ten annual installments; shall be a lien on the land, "and shall be entitled to preference to all demands, executions, encumbrances or liens whatsoever, and shall continue until such assessment, with any penalty and costs that may accrue thereon, shall have been paid." Section 4470 requires the board of supervisors of the county in which the land lies to make an annual tax levy, at the time the county tax levy is made, in an amount not exceeding the installment of assessment levied for that year, sufficient to meet the obligations of the drainage district. Other sections provide for the collection of the drainage assessments by the sheriff and tax collector, and for the sale of the land by him for the nonpayment thereof, at the same time and in the same manner as for the nonpayment of state and county taxes thereon.
The best way to approach the ultimate question here for decision is to decide, first, the relation to each other of the lien for state and county taxes and the lien for drainage assessments, and then the effect of the provisions that a sale for taxes conveys a perfect title to the purchaser, and that the lien of a drainage assessment "shall continue until such assessment, with any penalty and costs that may accrue thereon, shall have been paid."
Taxes for general governmental purposes and for local improvements differ in many respects, but the levy of each is an exercise of the state's taxing power, and assessments for local improvements must, equally with the other, be for a public purpose. Cox v. Wallace, 100 Miss. 525, 529, 56 So. 461.
Section 4448 et seq., Code 1930, put the assessments for local improvements here involved in the same category as state and county taxes, and make them, as nearly as is legislatively possible, of equal dignity therewith. The language by which each lien is created is equally all inclusive and exclusive, and neither necessarily displaces the other. When land is sold to individuals for the nonpayment of state, county, and drainage taxes or assessments, no question of priority thereof arises, for all such taxes are thereby collected; but when no individual bids for the land, at the sale, an amount sufficient to pay all of these taxes, it is sold to the state under sections 3249 and 4488.
If the land is redeemed from a sale to the state, all of the taxes and drainage assessments due thereon must be paid under sections 3264 and 4488, Code 1930. Should the land not be redeemed therefrom, all taxes thereon remain in abeyance until the land is sold by the state. Carrier Lumber Mfg. Co. v. Quitman County, 156 Miss. 407, 124 So. 437, 125 So. 416, 66 A.L.R. 614. How the statutes dispose of this priority when the land is sold by the state is here of no consequence and will not be considered. Nor are we here concerned with the priority of titles between a purchaser under a sale for state and county taxes only, and a purchaser under a sale for drainage assessments only, if such can occur.
This brings us to the meaning and effect of the provisions that a sale for taxes conveys a perfect title to the purchaser, and that the lien for drainage assessments shall continue until they have been paid, which two provisions must be construed together and harmonized, if possible. It is clear that the draftsman of section 4469, Code 1930, and the Legislature which enacted it, intended to prevent any displacement of the lien for drainage taxes thereunder by anything existing when the lien arises, or that might thereafter arise, which intention must be carried into effect, unless the provision of the prior sections in the same Code, i.e., sections 3256 and 3273, that a sale for taxes shall convey a perfect title to the purchaser, prevents.
We will assume, for the purpose of the argument, that the words "perfect title," unless used in a more restricted sense, to be gathered from the instrument in which they appear, embrace not only the right of property and of possession, but also freedom from liens and incumbrances, in which connection see Goff v. Jacobs, 164 Miss. 817, 145 So. 728.
The particular purpose which the Legislature had in mind when providing that a sale for taxes should convey a perfect title to the purchaser is reasonably clear. The provision was wholly unnecessary in order to relieve the land of liens and incumbrances thereon, for that had already been accomplished by the provision of section 3120, Code 1930, that the tax lien "shall bind the same, and be entitled to preference over all judgments, executions, encumbrances, or liens, whensoever created." What the Legislature evidently had in mind was the nature and quality of the title, and intended to make clear that a tax deed should convey to the purchaser a title in fee simple absolute, except insofar as such a title was qualified by the subsequent provisions of section 3273, Code 1930. It seems reasonably clear, therefore, that the Legislature did not intend for the purchaser of land at a tax sale to receive the land free from a lien of drainage assessment thereon created by section 4448 et seq., Code 1930, which lien, in section 4469 thereof, it had expressly declared should remain until the assessment was paid. So to hold relieves these sections of their apparent conflict, and harmonizes them without running contrary to any rule for the construction of statutes. This conclusion is reinforced by two facts, proper to be here considered:
First. Chapter 195, Laws of 1912, and its amendments, were enacted long after the enactment of the statutes now appearing as sections 3120, 3256, and 3273, Code 1930. And
Second. Section 4448 et seq., Code 1930, appear therein after, and not before, sections 3120, 3256, and 3273, thereof.
To so construe these statutes does not violate section 100 of the Constitution, for one, among other probable reasons, which is that no taxes of any character are thereby released, postponed, or diminished. Carrier Lbr. Mfg. Co. v. Quitman County, supra. This disposes of the effect of the sale to the appellant for the state and county taxes, and it remains only to consider whether the sale to him for the nonpayment of drainage taxes or assessments thereon relieved the land from such assessments thereafter to become due.
The effect of the provision of section 4469, Code 1930, that the lien of such an assessment shall continue until it has been paid, is that the sale of the land for the nonpayment of one such assessment does not relieve it from the lien for other such assessments thereafter to become due.
Section 3264, Code 1930, requires the chancery clerk, when permitting land to be redeemed from a tax sale, to collect from the person offering to redeem, all taxes and costs that have accrued on the land since the sale. Section 4488, Code 1930, provides that sales for the nonpayment of drainage assessments shall be subject to the provisions of the sale of land for state and county taxes, and that the owner should have a right to redeem the land from sale as now provided by law. The effect of these statutes is to require the chancery clerk to collect, from the person offering to redeem the land from a sale for the nonpayment of drainage assessments thereon, all drainage assessments that have accrued thereon since the sale.
Affirmed.