Blodgett v. Pearl River County , 134 Miss. 816 ( 1923 )

Anderson, J.,

delivered the opinion of the court.

Appellant Blodgett sued appellee, Pearl Biver county, in the circuit court of said county, for county taxes alleged to have been erroneously paid by him into the treasury of said county for the year 1916, which amount sued for had been audited and allowed by the auditor of public accounts under our tax reclamation statute. Section 4346, Code of 1906 (section 6980, Hemingway’s Code). There was a final judgment for the county, from which appellant prosecutes this appeal.

The case stands on the pleadings alone. The county pleaded the three-year statute of limitation against the claim of appellant, to which plea appellant demurred, which demurrer was sustained, and appellant declining to plead further, final judgment was. entered against him.

The only question in the case is whether the three-year or six-year statute of limitation applies to appellant’s claim. If the former applies his cause of action is barred, and the judgment of the court below should be affirmed, while if the latter applies it is not barred, and the judgment of the court below should be reversed. The case made by appellant’s declaration is substantially this: He was a large landowner in Pearl Biver county. His lands were legally assessed in said county for the years 1915 and 1916 at a valuation of eight hundred seven thousand, nine hundred ánd ninety dollars. The legislature of 1916 adopted chapter 475, Acts of 1916, p. 560, a local and special act authorizing Pearl Biver county to make a new assessment of the lands of said county for the year 1916. It is conceded that said statute is unconstitutional under Horton v. King, 113 Miss. 60, 73 So. 871; Id., 110 Miss. 859, 71 So. 9, in which it was held that a like statute applying to Lincoln county alone was unconstitutional and void. .In pursuance of said special act of the legislature Pearl Biver county had a hew assessment for 1916, assessing appellant’s lands at one million three hundred thirty-four thousand six hundred fifty-five dollars, which ivas five hundred twenty-six thousand six hundred sixty-five dollars more than the assessment for the year 1915-1916. The result was that on account of said increase in the assessment of appellant’s lands he paid to the state and the county of Pearl River fifteen thousand eight hundred eighty dollars and fifty-nine cents more taxes than he was due. Appellant paid said taxes under protest. The excess state taxes paid under said assessment was three thousand one hundred fifty-nine dollars and the excess county taxes paid thereunder was twelve thousand eight hundred thirty-nine dollars. Appellant thereafter proceeded under our reclamation statutes ‘(section 4346, Code of 1906 [section 6980, Hemingway’s Code]) to recover hack from the state and the county said excess amount of taxes so paid by him. His claim against the state was duly audited under said statute and approved by the attorney-general, and a warrant issued therefor on the state treasurer, which appellant collected. Said excess so paid to the county was likewise audited by the state auditor and approved by the attorney-general, and certified to the board of supervisors of Pearl River county. Said audit and allowance was made on the 5th day of May, 1919, but appellant for some reason failed to present his said claim to the board of supervisors of Pearl River county until its regular October meeting, 1922, at which time it was duly presented and disallowed by the board, and thereupon this suit was brought in October, 1922, to recover said .excess amount from the county.

It will be observed that appellant sued more than three years after his right to sue accrued, whether such right accrued when he paid said taxes or when his claim therefor was audited under said reclamation statute, or at the time the board of supervisors rejected said claim, but his suit was begun within six years of either of those periods. Therefore if the former statute applies he is barred, and if the latter, he is not.

The three-year statute of limitation (section 3099, Code of 1906 [section 2463, Hemingway’s Code]), provides, in substance, that actions on open or stated accounts not acknowledged in writing, and 'signed by the debtor, and all unwritten contracts, expressed or implied, shall be commenced within three years after the cause of action accrued, and not after. Certainly appellant’s claim does not consist of an open or stated account. The question, therefore, is whether it consists of an “unwritten contract, expressed or implied.” Or, putting the proposition conversely, does it consist of a written contract ‘ ‘ expressed or implied. ’ ’ If the former, the three-year statute applies; if the latter, the six-year statute governs. It is conceded, of course, if appellant’s claim does not come within the three-year statute, then it does come within the six-year statute. Section 3097, Code of 1906 (section 2461, Hemingway’s Code).

Appellant’s claim was evidenced by his tax receipt and the reclamation proceedings had before the auditor under said reclamation statute, and those proceedings consisted of said tax receipt and the audit of appellant’s claim by the state auditor, and the “voucher and evidences on which such claim is based” (using the language of the statute), and, in addition, the opinion of the attorney-general and the certificate of the auditor of the amount found to be due the county. Added to that was the command of said statute that the board of supervisors should cause a warrant to issue on the county treasurer for the payment of such claim so certified, and that the county treasurer should pay the same. In order for a cause of action to come within the six-year statute of limitation it is not required that it shall be evidenced by writing and signed by the party sought to be charged. It is only necessary that the cause of action shall be provable by writing, and an obligation to pay the same shall arise either expressly or by law. Here we have the entire claim, from beginning to end, provable by writing, namely, appellant’s tax receipt and said reclamation proceedings, and then, in addition to that, the mandate of the statute that, when the claim is so audited, allowed, and presented, the board of supervisors are authorized to order it paid, 'and the treasurer of the county to pay it.

Under the authority of the cases following, we hold that the contract of the county to repay said taxes to appellant was provable entirely by writing, applying thereto the requirements of the statute. Washington v, Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555; Cock v. Abernathy, 77 Miss. 872, 28 So. 18; Fowlkes, v. Lea, 84 Miss. 509, 36 So. 1036, 68 L. R. A. 925, 2 Ann. Cas. 466; Masonic Benefit Ass’n v. Bank, 99 Miss. 610, 55 So. 408; Railroad Co. v. Oil Co., 111 Miss. 320, 71 So. 568.

Reversed and remanded.