McNatt v. Hyman , 204 Miss. 824 ( 1948 )

DISSENTING OPINION. Despite the conclusions of the majority of the Court whose opinion and personnel have changed since the rendition of the original opinion I find myself unconvinced that our former view were at variance with the law. Much stress has been put upon the good intentions and the continued efforts of the appellant to have his minerals properly assessed. If they were not so assessed, the unsuccessful efforts of the appellant should create only a measure of sympathy but not of duty. With deference, I must confess that I find the majority opinion an effort to save the appellant by the invocation of unique presumptions and certain assumptions which are found necessary to support them. Although the Court has stated, "we think the supervisors had approved the mineral assessments under the facts of this case", it is clear that this is not a conclusion based upon the record but an assumption which impliedly concedes the necessity for such approval. Appellant never made application to the Board itself. The inference that such application would have been vain is no doubt logical argument, but the fact remains that appellant did not make such application, and the attitude of the Board is inferred solely from mere hearsay statements of the assessor.

I am of the opinion that the purchaser at the tax sale purchased that which had been assessed which was the entire interest in the land. Stern v. Parker, 200 Miss. 27,25 So.2d 787, 27 So.2d 402. It had therefore not escaped taxation and had not been "left unassessed". The man in the street would perhaps come to the assistance of the appellant and find comfort in any solution regardless of its foundation, which would reward appellant for efforts which the law should find to be abortive, but we are not men in the street, we must stand upon the law as it is written. The action of the sheriff and tax collector was well meant, but not well founded. He was without authority to assess these minerals as property which had escaped taxation or assessment and his effort so to do has not been authenticated by any showing of a report thereof to the Board of Supervisors. The assessor acted without authority in refusing the demand of appellant. The tax collector acted equally without authority in his informal amendment of his roll.

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ADDENDA The following eight cases were intended to be included in Vol. 203, but the manuscript material furnished for that volume was in excess of what would go therein to the extent of the eight cases and they were set into type for Vol. 204, and so done before Mar. 1st, 1949, the effective date of the new act, Chap. 416, Laws 1948, and before the commencement of the term of the present reporter.

Inasmuch as the manuscript for the eight cases did not comply with the new act, these cases could not be included in the present volume without a permit from the judges of the Supreme Court so allowing. On April 12, 1949, the judges issued a permit in writing that the eight cases may be included "as the last cases in the current volume preceded by a short memorandum as addenda that they have been allowed by a directive from the Supreme Court".

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