Herrick v. Pascagoula Street Railway & Power Co. ( 1910 )

Anderson, J".,

after stating the facts as above, delivered the-opinion of the court.

Two questions are presented for decision. Hirst, whether the increase made by the mayor and board of aldermen in the assessment of appellees’ property, over that as copied from the county roll, is void; and, second, whether the levy of taxes, in excess of six mills for “general funds,” is void. Whether the entire assessment and entire levy of taxes are void is nor brought in question.

Code 1906, § 3422, is as follows: “The mayor and board of aldermen of a city, town- or village, may, at a regular or special meeting, to be held in September or October in each year, increase or diminish the valuation, of property as assessed for taxation. Ten days’ notice of the meeting at which such changes are to be made shall be given by posting written notices-thereof in five or more public places in the municipality, and in cities the notice shall also be published in a newspaper, if' there be one published therein. Any person aggrieved by the-action of the mayor and board of aldermen may appeal therefrom to the circuit court as in other cases of appeal, and the-same shall be tried de novo in the circuit court.”

The authority given the board by this statute to “increase or dimmish the valuation of property as assessed for taxation’’ cannot be exercised after the 31st day of October. City of Biloxi v. Biloxi Real Estate Co., 94 Miss. 653, 48 South. 729. It is argued, however, that if the equalization actually takes place in October, and is merely approved by the board in November (as is contended to be a fact here), it is a compliance with the statute. The board is without power to equalize the assessments at any time without first having given the notice provided' by tbe statute. Such notice is a condition precedent to tbe exercise of the power. It is jurisdictional. In this case the board made an order on October 27th, directing the notice to be given of a meeting to be held from October 30th to November 5th, which was less than ten days from the giving of such notice, and therefore of no effect whatever. So the equalization made by the board is void, regardless of when made.

Code 1906, § 3317, provides that municipalities may levy taxes as follows: “For general revenue purposes, not to exceed six mills on the dollar in any one year; for general improvements, excepting improvements for which special assessments are levied, not to exceed six mills in any one year.” The chancellor found, as a fact, that the levy of eight mills for “general funds” was intended as' a levy for “general revenue purposes,” and therefore two mills in excess of what was authorized. In our judgment, the finding of the. chancellor is amply supported by the testimony.

Affirmed and remanded.

Suggestion oe Error.

After the delivery of the foregoing opinion counsel for appellant presented an elaborate suggestion of error.

Anderson, J.,

delivered the following response to the suggestion of error.

It may be conceded that the mayor and board of aldermen .gave the notice prescribed by Code 1906, § 3422 (though the record does not show such notice), and that a meeting was held in pursuance thereof; still the action of the board, in attempting to equalize the assessment, was void, because not completed before the 1st day of November. The action of the board, in making the equalization, must be evidenced by proper order or orders on its minutes. It can act in no other manner. The minutos of the board, beginning on October 27th and ending on November 9th, show conclusively that no final action had been taken on the equalization of the assessments until after November 1st. Complaints of taxpayers, as to their assessments, were being heard on November 1st, 2nd, and 8th, and on November 9th the rolls, “as revised,” were approved by order entered on the minutes. If final action had been taken before the 1st of November, what authority had the board to hear complaints up to November 9th? There is no escape from the conclusion that final action was not taken until the 9th of November. The board had no right to hear complaints after the 31st of October. The matter should have been settled not later than that time.

Suggestion of error overruled.