Adams v. City of Clarksdale

Mayes, J., delivered the opinion of the court. On the 13th day of July, 1908, the revenue agent filed a petition for mandamus against the city of Clarksd-ale and F. L. — 95 — Smith, acting both as tax collector and tax assessor for the city. The petition substantially alleges that the revenue agent gave written notice to Smith that certain property located in the city of Clarksdale had escaped taxation for the years 1891 to 1904, inclusive, and in the notice specifically described the property and required Smith to assess same, as additional assessments on the rolls or tax list then in his possession. Smith, acting in his official capacity, made the additional assessment required by the notice on the same day that he received it, to wit, on the 23rd day of March, 1907. After making the assessments as required, they were filed and remained on file continuously. It is averred that Smith was acting in the dual capacity of tax assessor and tax collector for the city of Clarksdale when all these proceedings were had. After making and filing the additional assessments, no further action was taken until the 18th day of February, 1908, when Smith gave written notice to all of the alleged owners of the property which had been back-assessed by him, and in the notice directed the attention of the taxpayers on whom the notice was served to the fact that any objection to the assessment which they might have would be heard by the mayor and board of aldermen at the next regular meeting. This notice was served under section 4740 of the Code of 1906, and seems to have been in strict compliance with the same, except that it is stated in the notice that “the following described property in the county of Coahoma, Mississippi,” etc., “has been assessed by me to you,” etc., instead of specifying the city of Clarkesdale; but the notice requires the parties to appear at the next meeting of the mayor and board of aldermen of the city of Clarksdale for the purpose of mailing any objection they might have, and we do not think this irregularity is sufficiently grave to invalidate the whole proceeding, as it is manifest that the assessment was in behalf of the city and by a city officer. On the 3d day of March, 1908, at the next regular meeting of the mayor and board of aldermen of the city of Clarksdale, these back assessments were taken up for consideration and approved. No appeal was ever prosecuted from the order of ap — 96 — proval, and directly thereafter Smith, as tax collector, proceeded to collect the amount of taxes due by virtue of the order of approval. Subsequently, on the 5th of May, 1908, and after the final adjournment of the regular meeting in March, the mayor and board of aldermen caused to be entered an order rescinding and canceling their order of approval of the tax assessments made at the regular March meeting of the board, and ordered all money heretofore collected thereunder to be refunded to the parties from whom same had been received. After this order was made the tax collector refused to proceed any further with the collection of the taxes above mentioned, but, acting under the order of the board, refunded all amounts previously collected by him. The petition avers that the action of the city of Clarksdale in vacating the order of approval made on. March 3, 1908, by the order of May 5, 1908, was void, and that it continued to be the legal duty of Smith to collect all the taxes which had been assessed. The petition prayed for a writ of mandamus against the city of Clarksdale and F. L. Smith, tax assessor and collector, requiring the city, through its proper officers, to cancel and annul the order made at the May meeting, 1908,. and further prayed that Smith, as assessor and tax collector of the city, be required to- proceed without further delay to collect all taxes assessed as set out in this petition, and that Smith be required to carry cut the order made by the mayor and board of aldermen at its March meeting, 1908. Two separate demurrers were interposed to this petition, one by the city of Clarksdale, and the other by the tax assessor and collector. The city demurred on the ground: First, that the municipal authorities cannot be controlled by mandamus or like process of any court; second, because the assessments were illegal, and not made by officers authorized by law to make the same, and therefore the mayor and board of aldermen had no right to approve the assessments; third, because, as the assessment was not legally made, it was the duty of the defendant to rescind all action taken in the premises. On behalf of the tax assessor and — 97 — collector a demurrer assigned as grounds: First, tbat it was sliown by the petition that no legal assessments were ever made as required by law; second, because it appears that the tax assessor and collector was without warrant or authority to make the collections; third, because the court was without authority to direct the collection of taxes illegally assessed. These are substantially the grounds of the demurrer filed by both defendants. On the hearing the court sustained the demurrers and dismissed the bill, from which action the revenue agent appeals. On behalf of appellees it is urged here for the first time that the action of the lower court must be sustained, for the reason that there is not only a misjoinder of the parties, but, additionally to this, the city of Clarkesdale is not subject to mandamus by its corporate name, but, if any such action can be maintained, it must be brought against the individual members of the municipal board. It is sufficient to say, in answer to this argument, that no such question was raised by the demurrers in the court below, and therefore, following the many decisions of this court on this subject, we decline to pass on these questions here. It is next argued for the appellees that the court held in the case of Adams v. City of Greenville, 77 Miss. 881, 27 South. 990, that the mayor and board of aldermen of a city were not subject -to mandamus; hence, says counsel, if the mayor and board of aldermen cannot be mandamused, certainly the city itself cannot be subject to the writ. It would seem, in the opinion above referred to, that the court did so hold; but in the ease of Adams v. Kuykendall, 83 Miss. 571, 35 South. 830, the ease of Adams v. City of Greenville was overruled. The two cases are absolutely inconsistent, and cannot be distinguished, and in our judgment the Kuykendall case announces the correct rule of law. It is further contended by appellee that by section 3421, Code of 1906, the notice required to be given by section 4740 should have been given to the clerk of the municipality. Section 3421 has no application to a proceeding instituted by the revenue — 98 — agent under chapter 131, Code of 1906. Where the revenue agent is proceeding to back-assess property, the proceedings are to be as provided under chapter 131, and the various sections of-the Code under this chapter are applicable alone to him. But the right of the revenue agent to back-assess is not the exclusive power in the law so to do. By section 3421 the municipality, acting through its clerk, may of its own motion assess property which has escaped taxation, and when that is done the back tax assessment must be made by the clerk. But this section has no controlling influence where the proceeding is instituted by'the revenue agent. The petition shows that although the tax assessor and collector made out the back tax assessment on his list, and filed same, yet no notice was given to the parties against whom the assessment was made until February 18, 1908, nearly a year after the assessments were filed. It is contended, therefore, that the assessment was a nullity because of this. We do not think there is anything in this contention. The assessment was made on the 23d of March, 1907, and the list filed. It is true no notice was given to the taxpayers until the 18th day of February, 1908, and until notice.had been given and the assessment approved no taxes became due and none could have been collected; but the notice was given and the assessment properly approved by the mayor and board of aldermen at the next regular meeting after the notice. After assessment is made no- particular limit of time is fixed by section, 4740, Code of 1906, within which notice must be served on the owners of the property back-assessed. This being the case, the matter could be heard by the mayor and board'of alderman at any time after notice to the parties assessed within the peidod of the statute of limitations. After the meeting of the mayor and board of aldermen at the regular session in March, 1908, with due notice to the taxpayer, and the list as filed by the tax collector had been approved, it was beyond the power of the mayor and board of aldermen to cancel this order of approval at any subsequent time; hence — 99 — their action on May 5th was a nullity.' Under section 4296 of the Code of 1906, where an assessment roll has been properly approved, the taxpayer is precluded from questioning its validity afterwards, and the effect of the approval is to render a final judgment against the taxpayer, unless subject to be reopened under section 4312. A judgment rendered by the mayor and board of aldermen, except in cases provided by statute, is no more open to further action after final judgment than is that by any other tribunal. Revenue Agent v. Clarke, 80 Miss. 134, 31 South. 216. The action of the board on May 5th in passing the order vacating the approval of March 3d was not under section 4322, or claimed to be under this section. The petition shows a strict . compliance in every respect with section 4740, Code of 1906, in so far as the back assessment is concerned, and we do not think that the case of State v. Brennan, 72 Miss. 894, 18 South. 482, has any application. In this case Smith was both tax collector and tax assessor. The facts of the Brennan case are easily distinguishable from the facts here. Since the action of the board was a nullity, it would be useless to require the board to expunge from its records that which has no legal force or effect. For this reason alone the demurrer filed by the city should be sustained, and petition dismissed as to it; but the demurrer interposed by the tax collector should be overruled, as the assessment is in all respects valid. It may be that by section 4742, Code 1906, many of these assessments are barred; but we leave' this question to be settled between the revenue agent and the taxpayer, since it is of no concern to the tax assessor and collector, and he can interpose no such defense for them. Let the demurrer be sustained as‘to the city of Clarksdale, and reversed as to the tax collector and assessor. Affirmed as to city of Clarksdale; reversed as to Smith, tax assessor and collector.