George County Bridge Co. v. Catlett

The appellee, in his official capacity as sheriff and tax collector of George county, brought this action against the appellant in the circuit court of that county to recover the sum of two thousand eight hundred five dollars alleged to be taxes due by the appellant to the state, George county, and the various taxing districts of the county, for the year 1929. The appellant, although personally served with summons, failed to appear and make any defense to the suit. At the return term of the court, there was a judgment by default and a final judgment on proof in favor of the appellee for the amount sued for, from which judgment the appellant prosecutes this appeal.

The appellant asks a reversal of the judgment upon two grounds: First, that the appellee was without authority of law to bring the action; and, second, that, if mistaken in that position, our statute making taxes a debt for which suit may be brought is violative of the due process provision of both the State and Federal Constitutions, and is therefore void. Constitution United States, Amendment 14, section 1; Constitution Mississippi 1890, section 14.

There were attached to appellee's declaration, as exhibits thereto, a copy of the assessment roll for the year 1929 covering the appellant's property, the taxes on which were sued for, a copy of the final order of the board of supervisors, approving the assessment roll, and copies of all of the proceedings leading up to the final approving order, including proof of publication to the taxpayers of the county of the equalization meeting of the board of supervisors at which they were required to appear and make protests against their assessments, if dissatisfied therewith.

The assessment of the appellant's property was regular and legal in every respect. In fact, its legality is not challenged by the appellant.

The statute under which this action was brought is section 3122, Code of 1930, which has appeared in all our Codes, substantially in its present form, back to and including the Code of 1892, and reads as follows: "Every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem, privilege, excise, income, or inheritance, is a debt due by the person or corporation owning the property or carrying on the business or profession upon which the tax is levied or imposed, whether properly assessed or not, or by the person liable for the income, inheritance or excise tax, and may be recovered by action; and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima-facie correct."

It is unnecessary to decide whether or not the appellee was authorized to bring this suit, because we have reached the conclusion that this question cannot be raised for the first time on appeal.

In 3 C.J., pages 762, 763, paragraphs 667 to 670, the general rule is stated substantially as follows: That an objection that the plaintiff has no such interest in a controversy as entitles him to maintain an action — that he is not the real party in interest — or that suit was brought by the wrong person or official, must be made in the court below, and cannot be raised for the first time on appeal. Numerous decisions are cited in support of the text, including Bowles v. Wright,34 Miss. 409, and Fly v. King, 71 Miss. 537, 14 So. 465. However, in order to hold that this question cannot be raised for the first time on appeal, it is not necessary to apply the above principle as broadly as stated.

The appellee, in his capacity as sheriff and tax collector, in bringing this suit, was not a mere intermeddler. He had an interest in the controversy. The taxes sued for were, under the law, due to him. When the assessment rolls were turned over to him, he was charged with the taxes. The rolls were his warrant for their collection, and, under the law, it was his duty in case of delinquencies to proceed to collect the taxes on personal property by distress, and on lands by advertisement and sale. His official bond covered the faithful performance of this duty. In other words, at the time this suit was brought, the appellee had the right to receive and receipt the appellant for the taxes sued for, which receipt, of course, would have been a legal acquittance for such taxes. We think the appellee's status with reference to the taxes sued for is much like the status of the complainant in the case of Beason, Executor, v. Coleman et al.,92 Miss. 622, 46 So. 49. The complainant in that case was executor of a will. The testator had died seized and possessed of lands. The complainant, without any authority given him by the will, filed a bill in the chancery court to vacate a certain land deed made by the testator. The court held that the complainant, in his capacity as executor, had no right to maintain the bill, because the title to the testator's real estate was vested in the devisees under the will, and not in the executor, but held further that, since the executor was also a devisee under the will, and was seeking to conserve the rights of all parties — in other words, since he was not a mere interloper — the question of his right to sue could not be raised for the first time on appeal.

We have not here the case of a public official bringing a suit about a matter in which he has no concern whatever in his official capacity, and therefore it is unnecessary to decide whether or not, in such a case, his right to sue could be raised for the first time on appeal.

Appellant contends that the statute violates due process because it fails to provide for personal service of process on the taxpayer giving him notice and an opportunity to be heard at the equalization meeting of the board of supervisors. In considering this question, it should be borne in mind that the assessment of appellant's property was, in every respect, legal. There was no attack made upon it in the court below, nor is there any made in this court. The last clause of the statute provides that, in all actions for the recovery of ad valorem taxes (the kind of taxes here sued for) "the assessment roll shall only be prima-facie correct." If the law made the assessment roll conclusive as to the amount of taxes due by the taxpayers, the appellant's position would raise a very grave question; but that is not true, the assessment roll is only prima-facie correct. That means that the presumption of its correctness is rebuttable. New Orleans G.N.R. Co. v. Walden (Miss.) 133 So. 241. Therefore, when an action is brought for taxes, under this statute, the taxpayer is of course summoned into court by process personally served, and there given an opportunity to be fully heard, and on the trial he will be permitted to rebut if he can, the prima-facie correctness of the assessment roll.

The Supreme Court of the United States, in the case of McMillen v. Anderson, 95 U.S. 37, 24 L.Ed. 335, held that a statute which gives the taxpayer the right to enjoin the collection of the tax charged against him, and to have the validity of such tax decided by the court, furnishes the taxpayer due process of law, notwithstanding the statute requires that the taxpayer give security in advance as in other injunction suits.

Affirmed.

Ethridge and Cook, JJ., dissent.