Gamble v. Witty

Campbell, J., delivered tfie opinion of tfie court. The state acquired no title to the land in controversy by the sale for taxes on May 10, 1875, because the act of March 1, 1875 (Sess. Acts, 11), did not authorize the sale of land on which the taxes had been paid for all the years prior to 1874. It embraced in its provisions only lands delinquent for taxes for the years prior to 1874. The land which is the subject of this dispute was not delinquent for any year before 1874, and was sold on the first Monday of February, 1875, for the taxes of 1874, and was not legally sold on May 10, 1875. Therefore the rulings of the court as to the sale of May 10th are erroneous. Lands on which the taxes were not paid for the year 1874 were to be reported as delinquent on or before the second Monday of January, 1873 (sec. 2 of act approved April 17, 1873, Sess. Acts, 90), and were to be sold on the first Monday of February. Act approved December 22, 1874; Acts Extra Sess. 1874, p. 14. There is, therefore, nothing in the objection that the sale on the first Monday of February, 1875, for the taxes of 1874, was not at a time authorized by law. The list of lands sold to the state, certified under his hand by tfie tax-collector, and filed by him with the circuit clerk of his county, did not fail of its legal effect by the failure of the clerk to record it in a book. It is the list, certified and returned to the clerk, which vests title, and not the recording of the list by the clerk. Code, sec. 1698. The objection to the list of land sold to the state on the first Monday of February, 1875, as certified by the auditor, was properly overruled. Certified copies ‘ ‘ of any public books, records, papers, or writings ” in charge of any of the public officers in this state are receivable in evidence in all [34] cases, where the original or a sworn copy would be evidence. Code, sec. 814. The levy of county taxes by the Board of Supervisors of Montgomery County for the year 1874 was not in excess of the limit allowed by law. By section 12 of an act approved April 4,1872, the Boards of Supervisors were prohibited from levying a tax in any one year which, with the state tax added, should exceed $25 on the sum of $1,000 of assessed valuation, excepting from this restriction the power to tax protected by section 14 of article 12 of the Constitution of the state. The levies made by the Board of Supervisors of Montgomery County, for 1874, aggregate 126 per cent on the state tax of 10 mills, and twenty-six per cent of this is under the protection of section 16 of article 12 of the Constitution, and not embraced in the restriction upon the power of the board to levy. Board of Supervisors v. Klein, 51 Miss. 807. Excluding this, and the aggregate of the county levies was: 100 per cent on 10 mills, for the Board of Supervisors took as the basis of its levy, not the 14 mills levied by the state,, including the teachers’ fund, but the 10 mills, excluding the 4 mills for teachers’ fund. The county levy for all purposes, besides bridges and the erection of a jail, was 10 mills, which added to the 14 mills levied by the state made 24 mills on the dollar, or $24 on the $1,000, of the assessed value of property. This was not a greater levy than the law allowed, and no objection to the sale made on February 1, 1875, exists on this: ground. The levy of a special tax by the Board of Supervisors at a. special meeting in September, after it had levied the county taxes for the year at its July term, was illegal and void. The Code, section 1372, requires the Boards of Supervisors of the several counties to meet on the first Monday of July in each year for the purpose of fixing the amount of county taxes for the current fiscal year; and section 1373 provides for calling* a meeting for the purpose of levying the county taxes, at some convenient time as early as practicable, “if the board [35] shall fail to meet on the first Monday in July.” The obvious-purpose is to secure uniformity as nearly as possible in the-action of the Boards of Supervisors of the several counties in. levying county taxes, and to conform this action to the plan, prescribed for the due arrangement and collection of taxes. Beard v. Board of Supervisors, 51 Miss. 542; Board of Supervisors v. Klein, 51 Miss. 807. The Boards of Supervisors cannot levy taxes at pleasure,either as to the amount or the time of doing it, but must conform to law in all respects in performing this important duty.. A disregard of the law renders their acts void. The authorities agree that a sale for taxes part of which, are legal, and part illegal, is void. This rule is not changed by our Constitution, section 8 ot article 12, which mates the principles applicable to sales by execution applicable to tax titles. A valid assessment is necessary to a valid sale of land. Taxes must be legally due, to authorize a sale for them. They are not legally due if not levied by competent authority. Ir part of the taxes are levied by competent authority, and part, are not, the collector might collect the legal and refuse to collect the illegal taxes. If he sells land for both, thus blending them in one sale, he cannot convey title, because the sale is-entire, and the legal and illegal cannot be separated. Blackw. on Tax Titles, 160; Cooley on Tax. 296; Burroughs on Tax. 301; Hardenburgh et al. v. Kidd et al., 10 Cal. 402. The illegal levy of taxes taints the sale made for both illegal and legal taxes. In no other way can the citizen be protected against usurpation of power, in the imposition of illegal burdens upon him in the shape of taxes. The Constitution was intended to prevent the mere irregularities, which are held not to avoid execution sales, from being held to avoid sales for taxes. It was not intended to cure illegality in the levy ot taxes, and it does not dispense with a valid assessment and levy of taxes as the fundamental condition on which a right arises to subject property to sale for the non-payment of taxes.- [36] The constitutional provision cited cannot be successfully invoked to sanctify illegality, and cure a departure from the requirements of law in the important matter of imposing "taxes. The public charge must be lawfully fixed upon the person or thing, and, if it shall not be discharged, a right arises "to sell property to pay it; and, in doing this, such irregularities as it is settled will not avoid a sale under execution shall not Be held to avoid a sale for taxes. Although, in the case under consideration, the state taxes were legal, and the levy for county taxes by the Board of Supervisors of Montgomery County at its July meeting was in accordance with law, and the collector might lawfully have sold land for these taxes, he did not sell for these alone, but sold for an entire sum made up of these and the taxes illegally levied at the special meeting in September. “ The entire sum is the consideration of the deed, and this being void in part is void in whole.” It is not like the case of two executions npon two separate judgments, one valid and the other void, in which case the purchaser would acquire title to the thing sold By virtue of that which was valid.. In that the valid judgment .■and execution is distinct from the invalid one, and, being sepanate and distinct, is not affected by its infirmity, and, being wholly unaffected by any illegality, is sufficient to uphold title made under it. The state and county taxes, although one is levied by the •■state and the other by the Boards of Supervisors, are collected :at the same time, by the same officer, and in the same way, npon the same assessment-roll, and the two are so blended that it is not allowable to distinguish them as separate judgments and executions. The assessment-roll, with the levy for the state by act of the ^Legislature, and the order of the Board of Supervisors fixing a certain rate per centum on the amount of the assessment-roll for state taxes to be collected for county taxes, constitute the authority of the tax-collector to demand taxes. While these are separable, if they are not separated, but blended in the [37] act of the collector in selling property for the entire sum of legal and illegal taxes, his act is rendered illegal, because of want of authority to do all that he has done. The state and. county taxes are to be collected by one act of sale. They are for this purpose united by law. The sale is made a single act. for all taxes. In case of two judgments and executions, the levy of both on the same thing, and its sale at the same time, is the act of the officer, and not in pursuance of the requirement of law. He may levy one on one thing and the other on-something else, and he may sell at the same or at different times. The two are by law distinct and separate. One is independent of the other. But in sales for taxes, as stated, above, there is by law such a connection as to make the rules applicable to different executions inapplicable to sales for taxes. The law requiring but one act in the sale for state and. county taxes has so indissolubly associated them as to avoid, the act because of the partial illegality of it. Blackw. on Tax Titles, 437 et seq. It follows that the sale of this land for taxes, on February 1, 1875, was illegal, and conferred no title on the state, and that the defendants in error did not acquire (any title by their purchase from the state. Judgment reversed and cause remanded.