The order entered by the board of supervisors attempting to approve the assessment roll is, of course, void for the reason that it fails to recite a finding by the board that an essential jurisdictional fact existed. The case therefore is in the same attitude that it would have been if the board had made no attempt to enter an order approving the roll, and consequently the second clause of section 4306, Code of 1906, Hemingway's 1927 Code, section 8228 applies. That section provides: "Assessments must be approved by an order of the board of supervisors entered on the minutes; but the failure to make and enter such order shall not vitiate the assessment if it shall appear that the assessment was made according to law."
Before an assessment can be lawfully made, the owner of the property assessed must have an opportunity of being heard thereon, for which purpose section 4303, Code of 1906, Hemingway's 1927 Code, section 8225, required the tax assessor to publish a notice of the day on which the board of supervisors would meet and hear objections to the assessment roll. Under section 1983, Code of 1906, Hemingway's 1927 Code, section 1715, the appellant's tax deed is prima-facie evidence that this notice was published by the tax assessor. The appellee did not allege in her bill of complaint, nor did she introduce any evidence indicating, that this notice was not in fact published by the tax assessor. The appellant's prima-facie case was therefore not overturned, unless we hold that *Page 798 the failure of the board of supervisors to adjudge and recite in its minutes that the notice was published raises a conclusive presumption that it was not published. The statute does not require the board of supervisors to enter an order on its minutes adjudging that this notice was given, and the necessity for so doing arises only when the board of supervisors enters an order correcting or approving the assessment roll, which necessity arises, not under any statute, but under the rule that an order or judgment rendered by a court of limited and special jurisdiction is void unless its record discloses that it had jurisdiction both of the subject-matter and of the person. The provision in the statute "if it shall appear that the assessment was made according to law" is not made the basis for any act of the board of supervisors, but is meant to cure nonaction by such boards, and refers to those things which must be done by the assessor in making up the roll, filing it with the board of supervisors, and publishing notice of the day on which property owners may appear before the board and object thereto. Whether an assessment has been made according to law must and can only be decided, unless the statute otherwise provides, by a court of law or equity charged with the duty of deciding justiciable controversies. The question therefore is a judicial one to be decided by the court on any competent evidence. This meaning and effect was given by this court to the words "if it shall appear that" in section 273 of the state Constitution, in State ex rel.McClurg v. Powell, 77 Miss. 543, 27 So. 927, 48 L.R.A. 652, and State ex rel. Howie v. Brantley, 113 Miss. 786, 74 So. 662, Ann Cas. 1917E, 723. Neither of these cases has been overruled on this point. An examination of section 273 of the Constitution will disclose that the legislature is required by it to act in a certain way "if it shall appear that" certain things have been done. No such requirement is made of the *Page 799 board of supervisors by the statute here under consideration; consequently the construction given in the cases cited to the language "if it shall appear that" applies with greater force here.
The opinion of the majority of the court seems to proceed on the theory that notwithstanding the provision of section 1983, Code of 1906, Hemingway's 1927 Code, section 1715, that a tax deed "shall be prima-facie evidence that the assessment and sale of the land were legal and valid," the sale of the land must be held to be void unless it appears from a recital in the minutes of the board of supervisors that the assessment of the land was made according to law. This, I think, nullifies theprima-facie statute and places a burden on the holder of a tax title of which the statute was intended to relieve him. In the majority opinion it is said that "this jurisdictional fact" (the publication of the notice) "must appear on the minutes of the board . . . before it can be said that it appears that the assessment was made according to law, and thereby bringing into operation this curative statute." With all deference I submit that to so hold is not to construe, but to add to, the words of the statute and prevent it from having the effect which the legislature intended. In order to mean what the majority of my Associates say it means, the second clause of the statute should read as follows: "But the failure to make and enter such order shall not vitiate the assessment if it shall appear by a recital in the minutes of the board of supervisors that the assessment was made according to law."
In the case of McDevitt v. Eliza Wall (Miss.), 122 So. 766, this day decided, the bill of complaint expressly admitted that the notice had been given, but a majority of the court there held that that fact, the publication of the notice, does not juridically exist unless the board of supervisors so adjudges by an order to that effect entered *Page 800 in its minutes; to so hold not only invalidates tax sales, but deprives the state and county of the right to collect taxes on an assessment roll which was made according to law, merely because the board of supervisors failed to so adjudge. It was this, and nothing but this, that the legislature intended to prevent by the second clause of section 4306, Code of 1906, Hemingway's Code of 1927, section 8228.
The opinion rendered in the case of Henderson Molpus Co. v.Gammill, 149 Miss. 576, 115 So. 716, is not controlling here, for section 4306, Code of 1906, Hemingway's Code of 1927, section 8228, was not therein considered.
For these reasons I am of the opinion that the judgment of the court below should be reversed.
I am requested by Judge ANDERSON to say that he concurs in this dissent.