Sims v. Warren

Cooper, J., delivered the opinion of the court. We find nothing in this cause as presented by the present record distinguishing it from the case presented on the former appeal. The attention of counsel and court was then directed to the sufficiency of the assessment of the land to uphold its sale for taxes, and we held it to be insufficient. Sims v. Warren, 67 Miss. 278. It is now attempted to support the assessment and supply its defects by evidence of what the tax collector did and intended to do in making the sale of the land for the taxes, and by evidence that payments made by Cummings and the administrator of the estate of William Morris were intended by them as payment of the taxes on other lands in the same subdivision, and thus, by the process of exclusion, [451] to sbow that tbe land sold was delinquent. The additional testimony, in effect, only shows that the collector intended to sell 80 acres of a tract of 160 acres, which 80 acres was whatever was not intended to be paid on by Cummings and Morris’ administrator. The receipts given by the collector to these parties do not show upon what lands taxes were paid, and it is only by applying the receipts to the land owned by them that they are made to cover these, rather than any other land of like quantity in the subdivision. The decree of the court below necessarily rests upon the predicate that there may be a valid sale for taxes without a valid assessment of the land sold, or that an assessment insufficient in the description of the property may be cured by applying it to any property not paid on before the sale for taxes. The constitution requires an assessment of property for taxation, and this the legislature may not dispense with. The fundamental purpose is to secure equality and uniformity of the burden of taxation according to the value of the property taxed. To reach valuation there must be identification of the thing to be valued. If the whole of the subdivision in which the land in controversy is located had been valued at one price, a different question would be presented. But 40 acres of the 160 were assessed at $2.50 per acre and the remainder at $1.00 per acre. On the face of the roll it is impossible to say to which part of the subdivision the valuation of $2.50 is to be applied, or to what that of $1.00 relates. The assessment required by the constitution must be provided in any scheme declared by the legislature for taxation; this accomplished, the constitutional command is obeyed, and it is within legislative discretion to provide nothing further save the machinery by which taxes shall be levied and collected upon the assessment thus made. But an assessment within and according to the constitution must be made before there can arise the power of sale provided by any legislative scheme or plan. The revenue act, under which the sale of the lands here in controversy was made (Laws of 1878, p. 23), provided: “That no failure to designate the precise locality of any subdivision of land [452] within a section .... shall be held to vitiate the assessment or the sale thereof for the non-payment of taxes so assessed, if the section, township and range within which the land is situated be properly entered on the rolls; and it may be shown by parol testimony on any proceedings to vacate such assessment, or in any controversy respecting the conveyance of any such lands when sold for the non-payment of taxes, or any subsequent conveyance, to what particular subdivision such assessment or sale was intended to apply.” Until it be shown that there was a valid assessment of property, it is useless to inquire whether a sale otherwise regular has been made, for the invalidity of an assessment nullifies all that follows. The question always returns, has there been a valid assessment of the property sold ? Looking to the evidence in this cause, we find nothing in aid of the assessment except the intention of the tax collector in making the sale, and this is an irrelevant and inconclusive matter, throwing no light upon the material inquiry as to what lands were assessed. Nor do we think it would have been competent to show by parol the intention of the assessor undisclosed by what he did in fact do and record upon the memorial provided by law as the exponent of his action. There cannot be an assessment of lands, within the constitutional requirement, which rests only in the memory and purpose of the officer. There must be official action evidenced by the roll he, is required to make. “ The roll must furnish the clue which, when followed by the aid of parol testimony, conducts certainly to the land intended. It is admissible only to apply the description on the roll, which must give the start and suggest the course, which being followed will point out the land intended to be assessed.” Campbell, J., in Dodds v. Marx, 63 Miss. 443. In that case the court was construing a provision of the code which provided for the admission of parol evidence if there is “ enough in the description on the roll to be applied to a particular tract of land by the aid of such testimony,” while the act controlling the question now under investigation provides for the introduction of such evidence where the section, township and range are given on the roll. [453] The act now under consideration is narrower than the code provision, for under it parol evidence is only admissible where the section, township and range are given, while under the code provision it is admissible whether the section, township and range are or are not on the roll. Under neither is it competent to do more than to apply the description to a particular tract; otherwise it would be to create an assessment by parol, which cannot be done. Reversed and remanded.