Adams v. City of Clarksdale

1. Mandamus. Appeals. Supreme court practice. New question. Where a petition for a mandamus was dismissed by the court of original jurisdiction on demurrer, a question not presented to or decided by that court will not be considered on appeal by tbe supreme court. 2. Same. Municipalities. Officers. Useless thing. Mandamus will lie against tbe officers of a municipality in a proper case (Adams v. Greenville, 77 Miss. 881, overruled, Adams v. Kuykendall, 83 Miss. 571), but will not be granted for a useless purpose, such as expunging a void order from tbe minutes of tbe municipality. 3. Same. Tax-collector. Barred assessments. Tax-payers’ rights not available to collector. Mandamus will lie to compel a municipal tax-collector to collect assessments made by order of tbe state revenue agent on property that has escaped municipal taxation, and be cannot resist its issuance on tbe ground that many of tbe assessments are barred, that question being one between tbe state revenue agent and tbe tax payers for whom tbe collector cannot defend. 4. Taxation'. Back taxes. Assessments. Municipalities. State revenue agent. Code 1906, § 3421. Concurrent power. Procedure. A municipality, acting by its clerk, is authorized by Code 1906, § 3421, giving such power, to assess property which has escaped municipal taxes for back taxes, and the right of the state revenue agent to make such assessments is not exclusive; but the statutory procedure prescribed for the one is not in all respects the same as provided for the other. $. Same. Same. Notice to tax-payer. Code 1906, § 4740. "Vacating order of approval. Code 1906, § 2296. A back-tax assessment, made at the instance of the state revenue agent by a municipal tax-collector, does not lose its vitality because of a failure to give prompt notice of it to the tax-payer; Code 1906, § 4740, requiring such notice, fixes no time limit for giving it, and such an assessment is valid if approved at the next regular meetiog of the municipal board after the notice has been given; and the order of approval cannot afterwards be vacated by the municipality, since, subject to an exception immaterial on this point, an approved assessment is given, by Code 1906, § 2296, so providing, the force and effect of a final judgment.

From tbe circuit court of, second district, Coahoma county. Hon. Samuel C. Cook, Judge. Adams, state revenue agent, appellant, was plaintiff in the •court below; the city of Clarksdale and one Smith, an officer of the municipality, were defendants there. Erom a judgment sustaining a demurrrr to the petition for a writ of mandamus And dismissing the suit plaintiff appealed to the supreme court. The facts are fully stated in the opinion of the court. After the municipality approved the action of its tax assessor and tax collector in assessing this property its municipal board became functus officio as to that matter and no appeal having been taken within the time required by law, or at' any other time, from this final action of .the board of mayor and aider-man, the board had no legal authority whatsoever at any subsequent meeting to set aside, cancel or annul its former valid and subsisting order. Sections 4738 to 4740, C'ode 1906, indicate just wliat' the powers and duties of the revenue agent are. Under the last named section it will be noted that the revenue agent, when seeking or wanting to assess property which had escaped taxation, is expressly required to notify the assessors or tax collect•ors of the different counties and municipalities as the case may be, and if the assessment rolls are at the time when this notice is given, in the hands of the assessor, the notice is to be given to him, and thereafter when the rolls go out of his possession and into the hands of the tax collector, the notice 'is to be given to the latter officer. It is contended by opposing counsel that in the instant case the notice provided for in section 4740 should have been given to the city clerk, and not to the appellee Smith, and, strange to say, counsel relies upon section 3421 to sustain the proposition so advanced by him. By referring to this latter section we find this language: “The municipal assessment of property for taxes shall be made by the clerk or the tax collector, etc.” The petition for mandamus, to which the demurrers are addressed, alleges specifically and positively that the appellee Smith was at the very time called upon by the appellant to act in this matter, occupying the dual position of tax assessor and tax collector of his co-appellee, and that he so continued to occupy and discharge the duties of these official positions for a long time thereafter, and that as a matter of fact is now occupying the same official positions, and inasmuch as section 3421 expressly provides that the tax collector of the'municipality may make all municipal assessments, argument is unnecessary to demonstrate the unsoundness of the view taken by adverse counsel. It is said, however, that because of the language in said section 3421, to wit: “In all cases where persons or property have escaped taxation for a previous year, the clerk shall assess the same for taxation, etc., that, therefore, no additional assessment can be made by any one other than the clerk, and, therefore, the notice here in question should have been given to the clerk and not to the tax collator. This language, however, refers exclusively to additional assessments which are made by the clerk of his own motion, and not to such assessments as are made at the request and by interposition of the state revenue agent. It was also argued in the court below that the only provision made by law for assessing property located in a municipality,, which had escaped taxation, was that provided for in section 3421. It is only necessary to carefully read section 4740 of the Code, to demonstrate the fallacy of any such argument. In this-latter section it is expressly made the duty of the revenue agent to give the notice therein provided for to tax collectors or tax assessors as the case may be, in counties and municipalities, and thereupon they are requird under certain pains and penalties and forfeitures to immediately cause the assessment to be made as called for. It is true, as has already been stated, that where persons or property have escaped municipal taxation for previous years the clerk of the municipality is called upon to assess-the same, and so does section 4320 of the Code with reference to state, county, and levee taxes provide that tax collectors shall make such additional assessments. So if opposing counsel is right in his contention that no such municipal assessment can be made by any one other than the clerk, it would then follow that the revenue agent could never, in any case, cause any property which had escaped taxation, to be assessed and the taxes paid, state, county or levee, unless he called the attention of the sheriff and tax collector to the fact that such property had escaped taxation, and to assess the same as provided for in section-4320 of the Code, although the Brennen case, as well as the latter part of section 4740', supra, announces positively that the revenue agent shall not call upon the tax collector to make any such assessment when the rolls are in the hands of the tax assessor, but that the demand shall be made upon the latter officer,, and only upon the tax collector after the rolls have gone into his hands. This is exactly what the revenue agent did in the instant case, when he made his request and demand upon the defendant Smith, who was at that time under the provisions of section 3421, supra,, as much the tax assessor of the appellee ■city of Clarksdale as the then clerk of that municipality. As to the proposition that the appellant cannot compel a municipality to act in any matter of mandamus, opposing counsel relies exclusively upon the case of Adams, State Revenue Agent ■v. City of Greenville, 77 Miss. 881, 27 South. 990. However this may be, in the latter case of Adams v. Kuykendall, 83 Miss. 571, 35 South. 830, this court has practically and to all intents and purposes overruled the Adams v. Green-ville case, insofar as the right of the revenue agent to invoke the the writ of mandamus is concerned. If as contended for, the state revenue agent can under no state of facts invoke the aid and assistance to be derived from the issuance of a mandatory writ of mandamus, the state had about .as well abolish the office, for such a rule would, so to speak “put the revenue agent out of business.” A misjoinder is manifest. The city of Clarksdale, is a municipal corporation, and no proceeding by mandamus will lie or nan be maintained against it. In a proper state of case, mandamus will lie against municipal officers individually and in their official capacities, requiring them to perform acts enjoined upon them by law, but that is a different thing from seeking to maintain a proceeding by mandamus against a municipality itself. The record discloses the fact that the mayor and board of aldermen of the appellee city, are not made parties to this pro-needing eo nomine or otherwise. The city of and by itself cannot perform any act in the premises laid in the petition. In a proceeding of this sort, a person ■or body whose duty it is to perform an act sought to be enforced by mandamus is a necessary party respondent. 26 Cyc. 409-417 and notes; Board of Commissioners v. Sellem, 9 Otto, 624, 25 Co-op. Ed. 333; The Board of Goms. of Labette Go., étc. v. U. 3. ex. rel. Moulton, 112 IT. S>. 217, 28 Co-op. Ed. 698. The decision of this court in the case of Adams v. City of Greenville, 77 Miss. 881, 27 South. 990 is controlling. There is still further objection to the maintaining of this action against the appellee city,- and that is, that if the assessments mentioned in the petition were legal and valid, the city could not do anything thereafter to undo a valid act, and, therefore, that the action complained of as taken in May, 1908, revoking the assessments, was absolutely ineffectual and void, and placed no impediment in the way of the tax collector from collecting the taxes, according to the said alleged assessments. This appears from the petition, and for that reason also-, at all events and regardless of the- validity or invalidity of all acts leading up to the alleged making of the assessments mentioned, it was proper for the court to have sustained the demurrers and dismissed the petition as to the city. The record shows that in the effort to make the said alleged assessments every provision of the law was ignored from the inception to the conclusion of the proceeding. It is contended by the appellant that the proceeding adopted was in.conformity to the provisions of section 3740 of the Mississippi Code of 1906, and that section only of the Code must be looked to with reference to the making of assessments of prop-1 erty which has escaped taxation for any previous year. If that be true, it appears that the provisions of this section were not complied with. The section requires that where property has escaped taxation by reason of not being assessed, notice shall be given by the appellant to the tax collector in writing, and that the collector shall within ten days thereafter make the proper assessment by way of an additional assessment on the roll or tax list in his hands. The words “tax lists” in this connection are synonymous with and mean the same thing as the “assessment roll.” There is no other known method of assessing property in Mississippi, except by placing tbe same on the proper assessment roll which thereby becomes, of course, the tax lists in the hands of the collector, from which to make collections. The record shows affirmatively that there was no proper assessment made by the tax collector by making any entry whatsoever upon any assessment roll or tax list in his hands within ten days, or at any other time, and that all the tax collector in the present case did was to note on the list provided him by the, state revenue agent, that he had filed the same on the 23rd day -of March, 1907. This de did not do in person, but assumed to do through an agency not known to the law, to wit: “By A1 Nachman, deputy.” There is no provision in any statute of Mississippi authorizing any assessor or tax collector of any municipality in Mississippi to appoint any person a deputy, and all that any such person does or may do in attempting to exercise the functions of either or both of said offices is void and of no effect whatsoever. > The statute further provides that immediately after the making of said additional assessments upon assessment rolls, the tax ■collector shall give ten days notice in writing to the person whose property is assessed, to appear at the next meeting of the mayor and board of aldermen at which objections to the said assessments will be heard. The record shows that so far from this being done, the whole matter rested quiescent and was practically abandoned for twelve months, and that it was after the 18th day of February, 1908, that the tax collector undertook to give any notice whatsoever. If an assessment had been made by the tax collector on the proper assessment rolls of the city, it must have been made hy him on the assessment roll of 1907, and in February, 190S, that roll would have been and was functus officio and was also in March, 1908.