Morgan v. Wood , 140 Miss. 137 ( 1925 )

The appellants filed a bill of complaint in the chancery court of Wilkinson county against the tax collector of Wilkinson county and the board of trustees of the Glenwild consolidated school district, seeking to enjoin the collection of a special levy of taxes on the property of the district, and from a decree sustaining demurrers to the bill, dissolving the preliminary injunction and dismissing the bill, this appeal was prosecuted.

The bill of complaint attacked the validity of the order of the county school board creating the Glenwild consolidated school district, as well as the order of the board of supervisors levying the special tax of three mills, and charges that the said tax collector is attempting to collect this tax on the lands and property of the complainants illegally, oppressively, and without any due and legal authority, and unless restrained will proceed to sell the property of the complainants to enforce the payment of the said illegal and unauthorized tax. The bill further charges that there has been no separate assessment made of the property of the district; that the order of the board of supervisors levying the said special tax of three mills requires the tax collector to "collect the tax on said district, basing the same on previous assessments," without specifying which assessment. There are numerous other charges involving the validity of the orders and acts of the county school board, the intentions or purposes of the school authorities as to school buildings, and the disposition of the funds to be derived from the proposed levy of taxes, but, for the purpose of this opinion, these charges are not material.

In so far as the validity of the orders of the county school board establishing the school district are concerned, this bill to enjoin the collection of this special levy of taxes is a collateral attack, and the legality of the organization of the district cannot be inquired into or attacked collaterally in a proceeding to enjoin the collection of a special school tax levied on the property in the district. Dye v. Mayor of Sardis, 119 Miss. 359, 80 So. 761; Liddell v.Noxapater, 129 Miss. 513, 92 So. 631; Borroum v. Purdy RoadDistrict, 131 Miss. 778, 95 So. 677.

The order of the board of supervisors levying the proposed tax on the property of the school district recites all the jurisdictional facts necessary to the validity of the levy, but this order further recites: "That the said district has been created after the assessor's rolls have been completed for the year. It is ordered by the board of supervisors that an annual tax levy of three mills be and the same is levied on all property of said district, and that the tax collector for the current year shall collect the tax on said district, basing the same on previous assessments."

The bill of complaint charges and the demurrer admits that no special assessment of the property of the district has been made, as required by chapter 170, Laws of 1920, as re-enacted in section 104, chapter 283, Laws of 1924.

Chapter 170, Laws of 1920, amending section 3, chapter 180, Laws of 1916, provides that, on a petition of a majority of the qualified electors of a consolidated school district containing not less than ten square miles, and on the approval of the county school board, the board of supervisors shall, in the same manner as provided for separate school districts, annually levy a tax on the property of the district, etc. After providing for the levy of this tax, the section further provides that: "The tax assessor shall make a separate assessment of the property of such district, and the county tax collector shall collect the taxes required each year of such districts, as other taxes are collected, and deposit the same with the county treasurer to the credit of the district for which it was levied."

The bill of complaint charges, and the order of the board of supervisors affirmatively shows, that no separate assessment of the property of the district was made after the creation of the district. On the contrary, the order requires the tax collector to collect the tax based upon previous assessments. This order was passed at the November, 1923, meeting of the board of supervisors, and presumably it was intended that the levy should be based upon the 1923 general county assessment of the land and property in the district, but it does not specifically so provide, and, with only the general county assessment as a guide, it would be difficult, if not impossible, to determine with any degree of certainty the lands which are embraced within the boundaries of the district. The necessity for this separate assessment is illustrated by an examination of the boundary lines of the district here involved. This boundary line follows the meanderings of several highways and creeks, without reference to the governmental subdivisions of the land. With this boundary line following a devious course through and across the various governmental subdivisions, the collection of a tax on the land within the district involves, not only the ascertainment of the parts of the boundary subdivisions which are within the district, but the value thereof. This is a duty resting upon the assessing authorities, and not upon the tax collector. The provisions of the statute require that this separate assessment shall be made, and the special levy collected thereon, and any attempt to collect the tax otherwise is without authority of law. Section 533, Code of 1906 (section 290, Hemingway's Code), confers on the chancery courts jurisdiction to restrain the collection of any taxes levied or attempted to be collected without authority of law. We are therefore of the opinion that the demurrers should have been overruled, and the decree of the court below will be reversed, the demurrers overruled, and the cause remanded.

Reversed and remanded.

ON SUGGESTION OF ERROR. On a former day an opinion was rendered in this cause, in which it was held that the separate assessment of the property within a consolidated school district, which is required by chapter 170, Laws of 1920, is a necessary prerequisite to the collection of a tax levied on the property of the district for the various purposes therein enumerated.

A suggestion of error has been filed, in which it is earnestly contended that this view is in conflict with the holding of the court in the case of Illinois Central Railroad Co. v.Middleton, 109 Miss. 199, 68 So. 146, and that the doctrine announced in the Middleton case is controlling in the case at bar.

At the time the Middleton case was decided, section 3 of chapter 255 of the Laws of 1912 was the law regulating the levy and collection of special taxes on the property of consolidated school districts, and, while this section provided that, upon a proper petition, the board of supervisors should annually levy such a tax, in the same manner as provided for separate school districts, and that the tax collector should collect the tax as other taxes are collected, it contained no provision or requirement that a separate assessment of the property of such district be made, and in construing this section of the said chapter 255, Laws of 1912, in connection with chapter 217, Laws of 1910, which provided that, "where separate school districts be created after the assessor's rolls shall have been completed for the year, the tax collector . . . shall collect the taxes on said district, basing same on previous assessment," it was held in the Middleton case that it was the intention of the legislature, where a consolidated school district was created after the assessor had completed the roll, that the tax collector should collect the taxes levied for district purposes, basing the same upon the assessment made next preceding the creation of the district.

The Middleton case was decided at the March, 1915, term of the court, and at the next succeeding session of the legislature section 3, chapter 255, Laws of 1912, was amended by adding the provision that "the tax assessor shall make a separate assessment of the property of such district," and the section as amended contains no proviso that, in any event, the taxes may be based upon a previous assessment. This amendment appears in section 3, chapter 180, Laws of 1916, and this section, in so far as it deals with the assessment of property and the collection of the tax, is identical with chapter 170, Laws of 1920. The Middleton case pointed out certain practical difficulties of administration which might arise under the statutes as then existing and therein construed, and with this before it the legislature inserted this amendment in the statute dealing with consolidated school districts, and omitted the proviso found in chapter 217, Laws of 1910. The language of this section of the consolidated school district statute, which provides for both the assessment and collection of taxes on the property of the district is clear and mandatory in form, and we assume that the legislature had some purpose in requiring a separate assessment of the property of such a district, and omitting any authority to collect such a tax on any assessment other than such separate assessment. We recognize that under some circumstances an undesirable condition may result from this construction of the statute, as pointed out by counsel for the appellees, and the construction contended for by him would probably be very desirable legislation, but that is a matter which is addressed to the sound discretion of the legislative department.

The suggestion of error will therefore be overruled.

Overruled.