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cision of this preliminary fact, and the proceeding, when instituted, must rest upon the mere uninstructed discretion of the officer. The question of value is one of the most difficult of solution in the administration of the law. One man may value an article at one price, and another at another, and all be equally honest in their action; but it is also a relative question, for the value of one horse or cow or tract of land is largely determinable by the value of other horses and cows and lands at the same time and place. When the agent proceeds to re-examine the value of property assessed in years past, no just conclusion could be reached without con

on the same roll. If the valuation of the property of one man is increased, so, also, must be that of every other man, if it has been undervalued; otherwise, the principle of uniformity and equality is departed from. It is to be remembered that, in all the assessments which are reopened by the law under consideration, the boards of supervisors had been charged with the duty of examining and equalizing the rolls; and if this was done, as must be presumed, any action by the revenue agent in changing one assessment would disturb the uniformity and equality of the burden, unless his jurisdiction may be considered as a revisory one, and his finding of the fact of undervaluation of particular property be considered as a judicial determination that all other property appearing thereon had been assessed at its true value. It has long since been decided in this state that it is not within the legislative power to provide by retroactive legislation for the reopening of judgments final in their nature, and under which rights had become vested. Hooker v. Hooker, 10 Smedes & M. 599. A fortiori, can it not annul them by a mere legislative declaration?

tion to the state revenue agent. They are provisions to meet emergencies, and displace as little of the machinery by which a general and uniform plan of assessment is carried on throughout the state as is possible. They substitute one local officer for another, and in case of the appointed assessor, at least, the duties he performs are precisely those which should have been performed by the assessor, and are subject to the same supervision by the board of supervisors. But chapter 126 of the Code displaces the whole scheme of taxation. It substitutes a state officer provided for by law for the local officer designated by the constitution. All idea of equality and uniformity of taxa-sideration of the property of others assessed tion, and of assessment of property "under general laws and by uniform rules, according to its true value," is abandoned, and the discretion of the officer is the limit of his power. Every judgment of every board of supervisors since the year 1886 is, in effect, nullified. Any citizen whose horse or cow or land or other property has been assessed in all these years, and who has paid his taxes according to such assessment, is subject to be proceeded against by the agent. It is, indeed, the imperative duty of the offlcer to proceed in all cases which, in his opinion, the valuation of property, as fixed by the taxpayer and the assessor and approved by the supervisors, was too little. Never before in the history of this state have such onerous duties been imposed upon, or such unlimited power vested in, a single person. We have said that all idea of equality and uniformity of taxation is abandoned. This is true, if the scheme is in its nature such that its practical operation must be effectual only in exceptional instances; for, if this be true, the law, though in form, is not in effect, a general law, prescribing uniform rules for the assessment of property of all the citizens of the state. If the approval of values, as they have been fixed by the authorities charged with that duty, on all the rolls since the year 1886, could be nullified by the legislature, it would yet be necessary that any scheme in which no provision is made for preserving uniformity and equality of taxation would violate the constitutional provisions by which such equality and uniformity is declared. Now, if the revenue agent may proceed against any taxpayer, whose property, in his opinion, has been undervalued, he must do so, unless his arbitrary discretion may be substituted for the legislative will. Nor can he proceed against one, and refuse to proceed against another standing in the same condition. But the agent cannot determine whether property has been undervalued in former years unless he shall and can inform himself of its then condition and value, and this, being a matter of fact, must be decided upon by some sort of evidence. No provision is, however, made for the investigation and de

When we consider the duty and power of the agent to collect taxes on property which has escaped taxation, the provisions of the law are found yet more objectionable. As to such property, the agent, without notice to the taxpayer, and without giving him an opportunity to be heard, determines that certain property, of a certain valuation, should be assessed against a particular person. He thereupon notifies the collector to place such property on the roll, and, having given the owner 10 days' notice of his action, may, in default of payment of the tax claimed, proceed by suit to recover the amount. It is true the act calls this an "assessment," but it is not such in fact. No opportunity to be heard in reference to the assessment is afforded to the citizen. His first information is that his property has been assessed by the ex parte act of the agent, and a liability fixed upon him, upon which suit will be brought unless immediate payment is made. He must, it is true, be summoned to defend the suit at law, and may then disprove the

legal.y of the assessment, which becomes final against him only upon full hearing before the court. But the question is, not whether the assessment is conclusive against the citizen when the suit is brought, but it is whether he may be subjected to a suit at all unless a tax is due by him at the time, and whether a tax is ever due until assessment is duly made, in conformity to the constitution. Either what the agent does before suit brought is an assessment of the property, fixing liability for its taxes, which liability is the foundation and support of the suit at law, or there is no assessment at all preceding the suit; and the anomaly is presented of an action on a nonexisting cause of action, with power in the plaintiff to create, pending the action, the right of action on which the suit rests.

We are not certain that we appreciate the precise position of counsel. The assumption runs throughout their briefs that a person owning property which has not been assessed is a delinquent, who cannot complain of any legislation having for its purpose the taxation of the property. Counsel do not expressly declare that such persons are not entitled to the protection of the constitution, but they suggest that, having failed to obey the law by giving in their property for taxation when all other property was assessed, such delinquents should be left to be dealt with at the discretion of the legislature. But the fact that such persons may have violated the law, either by neglecting or willfully refusing to return their property for taxation, is no reason why constitutional safeguards provided for the protection of all classes should be destroyed or ignored. The question is not one of policy, but of power; and, if it is competent for the legislature to dispense with an assessment of property as to one class, it would be equally within its power to dispense with it for any or all other classes. It is not too much to say that, if it were possible for one man 'to perform the duties of the office of revenue agent according to the provisions of the Code, there are not enough courts in all the states to determine in a lifetime the suits which would be brought in one year. But is is obvious that no purpose is disclosed of preserving the rule of uniformity and equality prescribed by the constitution. The evident purpose is to vest power in the agent to sue in the most flagrant instances of undervaluation of property heretofore taxed, or of nonassessment. Each case stands separate and distinct from each other, and, in lieu of the local agencies provided by the constitution, with local tribunals for equalization of values, the scheme of the act is to vest unlimited power and discretion in a state officer, with a trial by jury in each suit to finally settle the question of valuation. This is a total departure from the scheme of the constitution, and it is therefore invalid. The judgment is affirmed.

STATE ex rel. ADAMS, State Revenue Agent, v. FRAGIACOMO.

(Supreme Court of Mississippi. March, 1893.) UNPAID LIQUOR LICENSE ACTION TO COLLECTWHO MAY MAINTAIN.

Since Act Feb. 22, 1890, § 2, authorizing actions by revenue agents in the name of the state against persons selling liquor without a license to recover the privilege tax, was repealed by Code 1892, c. 116, entitled "Revenue;" and since the only action to be found in Code 1892 maintainable against persons selling liquor unlawfully is in section 1590 thereof, providing that every person so offending "shall be subject to pay the state, county and the city, town or village where the offense was committed the sum of $500," an action to recover an unpaid liquor license is not maintainable by the revenue agent.

Appeal from circuit court, Hinds county; J. B. Chrisman, Judge.

Action by the state on the relation of Wirt Adams, state revenue agent, against Lorenzo Fragiacomo, to collect an unpaid privilege license for the sale of intoxicating liquors during the years 1891 and 1892. There was judgment for defendant, and plaintiff appeals. Affirmed.

Williamson & Potter, for appellant. Calhoon & Green, for appellee.

WOODS, J. Has the revenue agent the authority to maintain this action? The answer will be found to have already been made in several recent opinions of this court. In the case of State v. Order of Elks, 69 Miss. 895, 13 South. 255, it is declared that the second section of the act of February 24, 1890, was repealed by the general revenue law, (chapter 116, Code 1892.) (It will be seen, in the opinion in this case, page 897, 69 Miss., and page 255, 13 South., that section 2, act of February 24, 1890, is said to have been repealed by the chapter of the Code of 1892 entitled "Revenue Agent;" but it is clear that by some inadvertence these words "revenue agent" are erroneously used, and that reference was had to chapter 116, entitled "Revenue." The mere verbal inaccuracy, however, is so manifest that the legal reader will not be misled.) In the case of State Revenue Agent v. Hill, 70 Miss. 106, 11 South. 789, it is held that the act of February 22, 1890, creating the office of revenue agent, was repealed by chapter 126, Code 1892, entitled "State Revenue Agent." The authority of the state revenue agent to maintain this action must be found now in the Code of 1892. The only action to be found in this Code maintainable against persons selling liquors unlawfully is in section 1590, in which it is provided that every person so offending "shall be subject to pay to • the state, county and the city, town or village where the offense was committed, each, the sum of five hundred dollars," etc. In McBride v. State Revenue Agent, 70 Miss. 716, 12 South. 699, it is held that this sum of $500 was a penalty recoverable only by civil sult by the state, county, or city, town, or village,

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and not by the revenue agent. It is useless to elaborate, for on the authority of the cases hereinbefore named it is settled that the action against appellee cannot be maintained by the state revenue agent.

Counsel for appellant are in error in supposing that section 3408, Code 1892, confers authority for maintaining civil actions against persons selling liquors without paying the license tax required in such cases. The section named is part of chapter 108, Code 1892, which treats of and deals with privilege taxes, as distinguished from a license tax to retail liquors. In the privilege taxes enumerated and provided for in that chapter the license tax of a retail liquor dealer is not to be found, and the proceedings, civil and criminal, provided for in the concluding sentence of said section, are applicable only to the delinquent privilege taxpayers, whose callings are taxed under said chapter 108. Affirmed.

ALEXANDER v. LLOYD et al. (Supreme Court of Mississippi. March, 1893.) GARNISHMENT-SERVICE OF WRIT-SUFFICIENCY.

Under Code 1892, § 2134, providing that writs of garnishment shall be served as a summons is required by law to be executed, and section 3417, providing that summons shall be executed five days before the return day thereof, and shall then require the appearance of the party at the term next after that to which it is returnable, a service of a writ of garnishment only two days before the return day cannot support a judgment against the garnishees at the return term.

be good to require the appearance of the party at the terin next after that to which it is returnable." Section 3427 declares in what way the return shall be made. The purpose of section 2134 is to place writs of garnishment under all the rules applicable to other original process. Where there has not been personal service upon the garnishee, no final judgment can be rendered against him, but a judgment nisi must be taken, with scire facias returnable to the next term, "unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter." Code 1892, § 2134. It is the scire facias, and not the original writ, to which this clause refers. Judgment affirmed.

POUNDS et al. v. CLARKE et al. (Supreme Court of Mississippi. Oct., 1892.) HOMESTEAD-MORTGAGE BY HUSBAND-SUIT TO CANCEL.

1. Where a husband gives a deed of trust on homestead property to secure a debt of his own, he cannot sue to cancel it, as not joined in by his wife, without offering to do equity by paying the debt.

2. His wife's joinder as a party complainant, she having no estate or interest in the land, is not necessary or proper.

Appeal from chancery court, Lee county; Baxter McFarland, Chancellor.

Bill by W. C. Pounds and M. L. Pounds, his wife, against Clarke, Hood & Co., to cancel a deed of trust made by said W. C. Pounds to one Gray to secure his debt due respondents, and said trustee's deed to re

Appeal from circuit court, Holmes county; spondents. Respondents had obtained posC. H. Campbell, Judge.

Garnishment by C. B. Alexander against J. C. Lloyd and others. A motion by garnishees to set aside a judgment by default against them was sustained, and plaintiff appeals. Affirmed.

Plaintiff, having obtained judgment against the Equitable Fire Insurance Company of Mississippi, had a writ of garnishment issued against Lloyd and others, which was served on them personally, but service was made only two days before the return day. The garnishees did not appear at the return term, and judgment was rendered against them.

Hooker & Wilson, for appellant. Cochran & Bozeman, for appellees.

COOPER, J. The service of the writ of garnishment was not made five days before the return day, and for that reason could not support a judgment at the return term. Section 2134, Code 1892, provides that writs of garnishment "shall be served as a summons is required by law to be executed." Section 3417 provides that summons "shall be executed five days before the return day thereof; and if executed within five days before the return day, it shall

session of the laud by an action of unlawful detainer. On demurrer, bill dismissed. Complainants appeal. Affirmed.

E. H. Bristow, for appellants. J. A. Blair, for appellees.

WOODS, J. M. L. Pounds, the wife, was neither a necessary nor a proper party to the litigation. She had no interest in the lands; and if, as appears, the husband had undertaken to convey the homestead without the wife's joining therein, the conveyance may be shown by the grantor to be invalid in any forum in which the question may arise. The attack may be made upon this invalid conveyance by the husband, at law or in equity, and there is neither necessity nor propriety in making the wife a party to litigation concerning lands in which she has no estate or interest. If the husband elects to invoke the aid of a court of equity, rather than resort to a law court, the shadow of the wife's name, as an unnecessary party to the proceeding, will not absolve him from the operation of the rule which requires him to do equity before asking relief in equity. Though the conveyance is invalid, the appellant must be required to do equity, by paying what the conveyance was designed

to secure, before he can have a court of conscience cancel the invalid instrument. The case is readily distinguishable from that of Massey v. Womble, 69 Miss. 347, 11 South. 188. In that case the husband, who had conveyed without the wife's joinder, was dead, and the wife had succeeded to the headship of the family, and had an estate in common with her children in the premises. She was a necessary and proper party, and she was under no obligation to pay any debt secured by the invalid conveyance. Affirmed.

QUARLES et al. v. HIERN. (Supreme Court of Mississippi. March, 1893.) SHERIFF'S DEED - ACTION TO CANCEL-VALIDITY OF JUDGMENT-EXECUTION SALE-NOTICE.

1. A sheriff's deed, after sale on an execution issued on a justice's judgment, should not be canceled on the ground that the judgment debtor was not served in the action in which the judgment was rendered, where the return shows personal service, the officer making it testifies that service was made as returned, and the justice testifies that on return day such debtor told him he had no defense to the action, and to enter judgment, and where the only evidence that it was not served is given by such debtor.

2. A sheriff's deed will not be canceled on the ground that the notice of sale was not published for the length of time required by law, where the purchaser and grantee is not the judgment creditor, and had no knowledge of such irregularity.

3. But where such deed is made to the judgment creditor, equity will cancel it for want of such publication.

Appeal from chancery court, Harrison county; W. T. Houston, Chancellor.

Action by C. H. Hiern against W. J. Quarles and one Dale to cancel certain sheriff's deeds executed to defendants to lands sold on execution issued on a judg ment in favor of defendant Dale and against plaintiff and his wife. From a judgment for plaintiff, defendants appeal. Reversed as to Quarles, and affirmed as to Dale.

The judgment was rendered in justice's court, and recites that it was rendered by consent, but the return of process showed that it was personally served. At the execution sale each defendant bought a part of the land. Plaintiff seeks to cancel the deeds on the grounds that such process was not served on him, and that the notice of sale was not published for the length of time required by statute.

Nugent & McWillie, for appellants.

COOPER, J. The decree in this cause must rest either upon the fact found by the chancellor that Hiern was never served with the process issued by the justice of the peace by whom the judgment in favor of Dale and against Hiern was rendered, or upon the other fact found by the chancellor that there were irregularities in the sale, by reason of which it should be vacated. The decree is silent as to the facts found

by the court. Being general in its terms, and the appellee not being represented in this court, we are not advised upon what ground the decree rests. A careful scrutiny of the record fails to disclose a case for relief upon the ground that the process upon which the judgment was rendered was not, in fact, served upon the defendant. True, the complainant swears that the pro cess was not served, but opposed to his testimony is the presumption of due performance of official duty by the constable, his return made at the time, showing personal service of the writ, his testimony that in fact the service was made as returned, and the evidence of the justice of the peace that on the return day he met Hiern, who told him he had no defense to the suit, and directed him to enter judgment. While one against whom a judgment is rendered without notice may have relief upon disproving the return of the officer, it is incumbent upon him to make clear and convincing proof. It will not be sufficient if, on the whole case, the matter is left in doubt. Some faith and credit is to be given to the acts of sworn officers, and to the returns they make in reference to the discharge of their official duties; and only the clearest and most convincing evidence should be accepted by courts as sufficient to disturb judgments apparently valid and regular. Duncan v. Gerdine, 59 Miss. 550.

It does not appear that Quarles, who, at the execution sale, became the purchaser of a part of the land, had any notice of the irregularity of the published notice of sale. The complainant avers that at the sale he caused notice to be given that the judgment under which the officer was proceeding was invalid, and that the sale would therefore be contested. But there is no suggestion, either in the pleadings or evidence, that objection was made because of any irregularity in the publication of the notice of sale, or that Quarles had any notice of such irregularity. Under such circumstances, he was entitled to act upon the assumption that the officer had discharged his duty in making the publication; and, though irregularities may have existed in the publication of the notice, his title acquired at the sale cannot be affected. Lum v. Reed, 53 Miss. 73; Hanks v. Neal, 44 Miss. 212; Minor v. President, etc., of Natchez, 4 Smedes & M. 602; Freem. Ex'ns, § 286. As to the purchase by Dale, the judgment creditor, a different rule applies. It was his process under which the sale was made, and the defective publication was the result of the failure of the officer acting for him to perform the duty imposed by law for the protection of the rights of the defendant in execution. In a direct proceeding to attack the sale, as is this, we think a different rule than that applicable to purchases by third persons should control. If the complainant had appeared at the return term of the execution, and there moved to

vacate the sale, and had shown, as he now does, that property worth $400 had been sold for $40, and that the sale had not been advertised for the time fixed by law, it would have been proper for the law court to afford relief. The same rule should be applied in equity, where seasonable application is made for relief, and when the complainant has done nothing to waive his right. Collins v. Smith, 57 Wis. 284, 15 N. W. 192. We do not decide that the publication of a notice of sale in the supplement of a newspaper is not a publication in the paper as required by law. We think the evidence here is insufficient to show that there was a publication in any regular supplement of the newspaper on the 11th of July. What is copied in the record as the supplement contains nothing except the notice of sale, and there is no suggestion in evidence that it was sent out with the edition of that date. On the contrary, the sheriff, who was introduced as a witness for the defendants, distinctly stated that the first publication was made in the paper of the 18th, and gave as a reason for his neglect to advertise on the 11th an agreement with counsel for appellee that publication on the 18th, 25th, and 1st should be recognized as legal. The decree of the court below is reversed on the appeal of Quarles; otherwise it is affirmed. Costs of this appeal to be divided between appellant Dale and the appellee.

GRIGGS v. JESSE FRENCH PIANO & ORGAN CO.

(Supreme Court of Mississippi. Oct., 1892.) JUSTICES OF THE PEACE-JURISDICTION IN ATTACHMENT SUITS.

Code 1880, 82191, provides that the jurisdiction of a justice of the peace shall be coextensive with his county, and he may issue any process to be executed in any part of his county, but every freeholder or householder shall be sued in the district in which he resides, or in the district in which the debt was contracted or the property may be found. Section 2475 provides that a justice may issue attachments returnable before himself or any other justice of any district in which defendant or any of his property may be found. Held, that an attachment issued by a justice against a nonresident, and levied on property in a district other than the one in which such justice resided, and in which there were qualified justices, was returnable before the justice who issued it.

Appeal from circuit court, Noxubee county; S. H. Terral, Judge.

Action of attachment by J. L. Griggs against the Jesse French Piano & Organ Company, commenced in justice's court, and taken on appeal to the circuit court. From a judgment granting a motion to quash the levy and dismiss the action on the ground that the justice of the peace had no jurisdiction, plaintiff appeals. Reversed.

Defendant was a nonresident, and the justice who issued the attachment made it returnable before himself in district No. 3. No property was found in his district, and the writ was levied on property of defendant in district No. 4, in which were two acting and qualified justices. The indebtedness for which the action was brought was contracted in district No. 3.

A. C. Bogle, for appellant. T. W. Brame, for appellee.

WOODS, J.

The jurisdiction of every justice of the peace is coextensive with his county, and he may issue any process in matters within his jurisdiction, as is unmistakably to be seen on the face of section 2191, Code 1880.1 The limitation of this jurisdiction arises in two classes of cases, viz. where freeholders or householders are defendants. But this limitation is itself subject to exception. The limitation on the jurisdiction coextensive with the county is that every freeholder or householder shall be sued in the district in which he resides, if there be any acting justice therein, and qualified to try the householder's or freeholder's suit; but the limitation is not without exception. The householder may be sued in the district in which the debt was contracted, the liability incurred, or in which the property may be found. The only limitation upon the jurisdiction coextensive with the county is applicable alone to householders or freeholders of the county. The other provisions of law touching the jurisdiction of justices in attachment suits is found in section 2475,' and by this section it is clear that the justice issuing attachment writs, in cases within his jurisdiction as to amounts, may make them in every case returnable before himself or returnable before any other justice of any district in which the defendant or any of his property or ef fects may be found. The writ in the case at bar was properly made returnable, the defendant being a nonresident, before the justice who issued it. Reversed and remanded.

Code 1880, § 2191, provides as follows: "The jurisdiction of every justice of the peace shall be coextensive with his county, and he may issue any process in matters within his jurisdiction, to be executed in any part of his county, but every freeholder or householder of the county, shall be sued in the district in which he resides, if there be a justice acting therein, and qualified to try such suit, or in the district in which the debt was contracted, the liability incurred, or in which the property may be found."

2 Section 2475 provides as follows: "Any justice of the peace may issue attachments in cases, within his jurisdiction as to amount, returnable before himself or any other justice of the peace of any district in which the defendant or any of his property or effects may be found."

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