Eastland v. Yazoo Delta Lumber Co.

Whitfield, C. J., delivered the opinion of the court. The sale for taxes under review in this case was absolutely void, for the reason that the assessment was made under the Madison act, which act we have three times declared to be unconstitutional and void. See Hawkins v. Mangum, 78 Miss., 97, 28 South., 872; Coffee v. Coleman, 85 Miss., 14, 37 South., 499; Scarborough v. Elmer, 87 Miss., 508, 40 South., 69. In the first-named case this court speaking through Mr. Justice Cali-ioon, said, in response to the suggestion of error which insisted that the act of 1890 (Laws 1890, p. 19 et seq., c. 6) [335] cured, the sale, that that act “had no sort of application to a case where there was no assessment, that the act had and could have no reference to an assessment absolutely void because of an unconstitutional law,” and finally said, with great clearness and emphasis: “This act cannot cure an unconstitutional law. It cannot apply, even if it could then be efficacious, to an assessment which was no assessment at all” — citing a long array of authorities, amongst them Dingey v. Paxton, 60 Miss., 1038, and Thibodeaux v. State, 69 Miss., 683, 13 South., 352. Eor the very same reason precisely § 539 of the Code of 1880 can have no application in the case at bar; for we have the identical assessment under review here that was under review in Hawkins v. Mangum and the two other cases referred to. No act of limitations passed by the legislature can have any application whatever to a tax sale void because the assessment was made under an act of the legislature which was itself unconstitutional. All that is said in the brief about the right of the state to tax the land, and about any supposed distinction between the case at bar, whch is the Mangum case over, and the case of Hoskins v. I. C. R. R. Co., 78 Miss., 768, 29 South., 518, 84 Am. St. Rep., 644, is quite beside the mark. We have, in the case of Kennedy v. Sanders, post, s.c., 43 South., 913, pointed out the principle of all these cases, and content ourselves now with the reference to the reasoning on this subject in that case. There can be no liability to taxation, no delinquency, no taxes due, and therefore no sale for taxes, where the land has never been assessed; and that is precisely what we held was the ease in Hawkins v. Mangum, the counterpart of this case. It is certainly fortunate that the legislature, in adopting § 3095 of the Code of 1906, has declared that that section shall not apply when the sale is absolutely void; fortunate as the legislative declaration that the intent of the legislature never had been as misinterpreted in Carlisle v. Yoder, 69 Miss., 384, 12 South., 255; Patterson v. Durfey, 68 Miss., 779, 9 South., 354; and [336] Brougher v. Stone, 72 Miss., 647, 17 South., 509, that such a statute of limitations should cure a pretended sgle for taxes when there never had been in truth and in fact any power to sell for taxes at all. That legislative provision was merely declaratory of what this court has already announced to have been the legislative intent in § 539 of the Code of 1880 and the other related statues of limitation. Affirmed, and remanded for an accounting.