Yazoo & M. v. R. Co. v. Lane Bayou Drainage Dist. ( 1926 )

^* Corpus Juris-Cyc. References; Drains, 19 C.J., p. 747, n. 54. The appellant filed a bill in the chancery court to cancel an assessment of benefits accruing to section 23 and 24 of township 24, range 8 west, in Bolivar county, Miss., assessed for drainage benefits under proceedings of the drainage district. The bill alleged that the drainage commissioners caused an assessment to be made of benefits on all lands within the boundaries of the drainage district, and, among other assessments, assessed to the complainant the benefits to the above named sections; that the amount due on the assessment for the year 1923 to said lands was three hundred ninety-one dollars and fifty-five cents, and that it would be approximately the same for subsequent years.

It was further alleged that this assessment was erroneous, and that it was made either by accident or mistake; that the complainant was not the owner of any land whatever in said sections, and that all of said sections are elsewhere in said assessment roll assessed to other parties who are the true owners of said lands.

It was further alleged that in collecting the tax the sheriff refused to permit the complainant to pay its other taxes without paying this tax so erroneously assessed, and the complainant was compelled, under protest, to pay this assessment to the sheriff, and it was by the sheriff converted into the treasury of the said drainage district; and is now held and retained by the drainage district; that the said erroneous assessment appears on lines 21 and 23 at page 20 of the assessment roll of said drainage district. It further alleges that unless the court will intervene and cancel the said assessment complainant will be continuously annoyed with said assessment, and will from year to year have to pay, under protest, this assessment to recover the amounts paid, and will be subjected to the necessity of conducting a multitude of suits. The bill prayed that the said assessments be canceled and the commissioners directed to note cancellation on the record, and at all other places where they appear among the records of the said drainage district; that the court will further direct the commissioners to refund the complainant three hundred ninety-one dollars and fifty-five cents wrongfully collected by the sheriff aforesaid, and prays other further relief. The bill was demurred to and the demurrer sustained, and an appeal was granted to settle the principles of the case.

The question presented for decision is whether or not this suit will lie after the expiration of the time for objection and appeal provided by the statute to present objections and to take an appeal from the order making an assessment, which time had expired prior to the payment of the taxes and the filing of the bill in this case. In Minyard v. Pelucia Drainage District,133 Miss. 847, 98 So. 225, we held that the proceeding under the act involved herein, creating a drainage district and making assessments, was a proceeding in rem, and that the notice provided by statute to be given to property owners was sufficient notice to constitute due process of law, and that the act and assessment did not impose a personal obligation upon the landowner, but assessed the land itself with the benefits. We also held in Belzoni Drainage District v. Cobb, 137 Miss. 393, 102 So. 259, to the same effect, and that where the owner failed to protest and object at the proper time, and failed to prosecute an appeal from the judgment of the drainage district assessors within the time prescribed, that the assessment was binding.

In the case before us, however, the bill alleges that the same sections of land were twice assessed with benefits on the same assessment roll; that it was assessed at one place as the property of the appellant and at another place as the property of another person as the true owner. In McHenry v. State,91 Miss. 562-576, 44 So. 831, 833, this court held that, although the court may have jurisdiction of the subject matter and of the parties, yet a particular order in the cause may be wholly without jurisdiction because it is utterly wanting in predicate therefor. In the course of this opinion the court said:

"It is a misconception to suppose that only in a case where the court has no jurisdiction over the particular suit can one safely disobey the order of a court. A court may have jurisdiction, in a general sense, of the particular suit, as regards both its subject matter and the parties to it, and yet the court may make, in the trial of that particular case, an order which, regard being had to the nature of the suit, the court has no power whatever to make. Such an order is an absolute nullity, not a mere irregularity; and both where general jurisdiction at all to entertain the particular cause is wanting, and also where, such general jurisdiction existing, the court, in the progress of the trial of the particular cause, makes an order wholly void, there is wanting utterly the predicate for any contempt process for disobedience to such order. This is essentially what is held in the case of Ex parte Wimberly, 57 Miss. 437, though in that particular case the court dealt with the instance of a court acting without jurisdiction at all in the cause, rather than the case of a court with general jurisdiction of a cause transcending entirely its power in the trial of that cause to make a particular order."

The statute under consideration fixes the benefits against the property as such, a proceeding in rem, and it is not permitted to make more than one assessment in the same year against the same property, and consequently has no right or jurisdiction to assess the property at one place to one as owner and at another place to another as owner. In such case, it transcends its power and this appears on the face of the assessment roll. It is true that where an assessment of land is made under the statute to an owner it is a valid assessment whether it be assessed to the proper person or not, and it would bind the land assessed for the benefit assessed although it be assessed to the wrong person, or assessed as belonging to the person who does not in fact own it; and, under the statute, all persons are bound by such assessment after it becomes final and the time for appeal has expired. But where a board through accident, error, or mistake assessed the property twice, the chancery court has jurisdiction at the suit of a person improperly assessed with the tax to cancel such assessment, leaving the assessment made against the true owner in force, so that the person against whom the assessment is wrongfully made may obtain relief from the error of the board. In such case it is not the fault of the suitor which the court relieves, but it is the wrong of the board in making assessment not authorized by law.

We are therefore of the opinion that the court below erred in sustaining the demurrer. The judgment will therefore be reversed and the demurrer overruled and the cause be remanded, with leave for the appellee to answer within thirty days after mandate reaches the court below.

Reversed and remanded.