Bd. of Suprs. v. City of Meridian , 149 Miss. 139 ( 1927 )

^* Corpus Juris-Cyc. References: Highways, 29CJ, p. 727, n. 69, 74, 76, 81; p. 731, n. 23; p. 733, n. 33; p. 740, n. 17; p. 741, n. 26 New; Statutes, 36Cyc, p. 1071, n. 25; p. 1076, n. 39. This is an appeal from a judgment of the circuit court of Lauderdale county against the board of supervisors, in favor of the city of Meridian, for the sum of twenty-one thousand two hundred sixty-two dollars and sixty-four cents, being one-half of the ad valorem taxes collected on property located in said municipality, under a three-mill levy on the taxable property of good roads district No. 1 of the county, for the fiscal year 1926.

The declaration filed on behalf of the city of Meridian, in substance, alleged that the city is located within board of supervisors district No. 1 of said county, and that its streets are worked and maintained at the expense of the municipal treasury; that about the year 1910, said board of supervisors district was organized into a separate good roads district, under and pursuant to the provisions of chapter 149, Laws of 1910, and that since that time, the district has continued to exist under that chapter and the amendments thereto; that on the 17th day of March, 1925, and on the 15th day of June, 1926, the city passed resolutions notifying said supervisors that it would claim and demand one-half of all the road taxes collected by the county on property located in the city of Meridian, as provided by chapter 232, Laws of 1920, which resolutions were filed with the clerk of the board of supervisors; that on the 5th day of October, 1926, the commissioners of good roads district No. 1 of said county, which embraced the whole of supervisors' district No. 1 of said county, filed with the clerk of the board of supervisors their recommendation that a three-mill tax on all taxable property within said good roads district No. 1, including the city of Meridian, be levied for the purpose of maintaining certain specified roads within said district during the year 1926, which roads, so specified, and particularly described, were all the roads that were then under the jurisdiction, control, and maintenance of said commissioners of said road district; that said recommendation was approved and accepted by an order of the board of supervisors, and was spread at large upon the minutes of said board; that, at the November, 1926, meeting of said board of supervisors, a certain general order was entered, in and by which a tax was levied for all county and county district purposes, including maintenance taxes for divers good roads districts of said county; that, by said general order, a three-mill tax was levied for the benefit of the maintenance fund of said good roads district No. 1, and that thereafter, pursuant to said levy, the tax collector of said county collected these taxes on property in the city of Meridian and paid same into the county treasury.

The declaration further alleged that, under the terms and provisions of chapter 232, Laws of 1920, said city was entitled to have paid to its treasurer, for the benefit of said city, one-half of said sum so collected on property located inside the city limits; that on the 4th day of March, 1927, the city council of Meridian adopted a resolution directing and requiring its clerk and treasurer to demand of the board of supervisors payment of said sum; that thereafter proper demand was made for the payment of this sum, but said board of supervisors declined to pay same, or any part thereof, and judgment was demanded for the sum claimed to be due the city.

To this declaration, the board of supervisors interposed a demurrer, which was overruled, and thereupon leave was granted to file pleas. The plea filed averred that the roads named in the resolution and recommendation of the road commissioners, a copy of which was filed as an exhibit to the declaration, and all roads in good roads district No. 1 of said county, were what is known as improved roads. The plea then set forth a description of the roads named in said recommendation, showing how each of them was improved, whether paved or graveled, etc., and averred that said roads were all of the roads in good roads district No. 1 of said county, and all of the roads under the jurisdiction of the road commissioners of said district. It also averred that said city had no jurisdiction or control over any of said roads, and that any part of the special three-mill tax levy that might be paid into the city treasury would be used for municipal purposes, and not for the maintenance of said roads, and that to so divert any part of said funds would be contrary to the provisions and requirements of chapter 227, Laws of 1926.

The city demurred to this plea, which demurrer was sustained. Thereupon the board of supervisors declined to plead further, and judgment was rendered for the city for the sum of twenty-one thousand two hundred sixty-two dollars and sixty-four cents, or one-half of the taxes collected under said levy on property located within the city limits, and from this judgment this appeal was prosecuted.

The question presented for decision by this appeal is whether or not chapter 227, Laws of 1926, repealed chapter 232, Laws of 1920, in so far as the latter chapter applied to ad valorem taxes levied for the maintenance of any specified improved road or roads.

Sections 1 and 2 of chapter 232, Laws of 1920, read as follows:

"That one-half of all ad valorem taxes collected by or for a county or a separate or a special road district operating under any laws of the state, on property within a municipality, the streets of which are worked at the expense of the municipal treasury, or worked by municipal authority, for road purposes of such county or district, not including taxes for the purposes of paying bonds issued for road purposes or the interest thereon or for creating a sinking fund for retiring the same, shall be paid over to the treasurer of such municipality for said municipality. . . .

"That all commutation taxes for road purposes collected from residents of a municipality by or for such county or district shall be turned over to the treasurer of such municipality for such municipality and be by it expended for street purposes. Provided that any municipality desiring to preserve for itself the benefits of this act shall by resolution notify the board of supervisors that such municipality will claim its one-half of all road taxes collected therein, and thereafter such municipality shall be entitled to all the benefits of this act."

Chapter 227, Laws of 1926, provides that:

"Hereafter when any tax shall be levied for the maintenance of any certain improved road, or roads, that such tax shall be used solely for the purpose of maintaining such road or roads and for no other purpose."

Chapter 227, Laws of 1926, does not expressly repeal any of the provisions of chapter 232, Laws of 1920, and, since repeals by implication are not favored, the two statutes should be construed, if possible, so as to harmonize them and give full effect and proper application to the provisions of both.

The first statute which authorized the levy of an ad valorem tax for the maintenance of the public roads of a county was chapter 82, section 45, Laws of 1892, which appeared in the Code of 1892 as section 3931, and it provides that:

"The taxes so collected on property within a municipality, the streets of which are worked at the expense of the municipal treasury, or worked by municipal authority, shall be equally divided between the county road fund and the municipal street fund."

This section was brought forward in the Code of 1906 as section 4443, and as section 8387, Hemingway's 1927 Code, and a similar provision appears in section 4469, Code of 1906 (section 8409, Hemingway's 1927 Code), and these statutes are still in full force and effect. The legislature of 1910 provided two additional methods of constructing and maintaining public roads. By chapter 150 of the Laws of 1910, it was provided that the board of supervisors, in addition to other methods of working public roads, might purchase teams, implements and material, and employ labor, and work the public roads, and build bridges, under the direction of a competent commissioner, to be employed by them, and also provided that the said boards might raise funds, for the working of roads and building bridges, by bond issues, a commutation tax, an ad valorem tax, or an acreage tax, or any or all of said methods.

In the case of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703, it was held that the said chapter 150, Laws of 1910, did not provide a full and complete scheme for raising funds for working public roads, and that since it did not expressly make inapplicable the Code provisions in reference to the division of funds between the county and the municipalities located therein, these provisions controlled the disbursement of funds collected under that chapter, and entitled the city of Holly Springs to one-half of all taxes collected on property within the municipality. The said chapter 150, Laws of 1910, was amended by chapters 257 and 258, Laws of 1912, and by chapters 172 and 177, Laws of 1916, and by chapter 140, Laws of 1918, and, as amended, was again before the court in the case of Bay St.Louis v. Hancock County, 120 Miss. 873, 83 So. 276, in which it was contended that the city was entitled to one-half of all the road taxes collected by the county on property situated within the city limits. The court there held that chapter 150, Laws of 1910, as amended, did provide a full and complete scheme for raising funds, and, since it contained no provision that one-half of the taxes collected by a county thereunder on property in a municipality shall be paid into the municipal treasury, the Code sections providing for such payment have no application to funds collected under the chapter, and the case ofHolly Springs v. Marshall County, supra, was expressly overruled.

Good roads district No. 1 of Lauderdale county was organized under chapter 149, Laws of 1910, and this chapter, as amended by chapter 277, Laws of 1920, provides a full and complete scheme for constructing and maintaining public roads in any one or more supervisors' districts of a county, and for raising funds for that purpose, and it likewise contains no provision that one-half of the taxes collected by a county thereunder on property in a municipality shall be paid into the municipal treasury; and, consequently, the Code sections hereinbefore referred to have no application to funds collected under this chapter. The legislature of 1920, however, enacted chapter 232, Laws of 1920, under the provisions of which the city of Meridian would be entitled to one-half of the taxes collected on property within the municipality under this three-mill levy, unless the provisions of this act have been modified or repealed by chapter 227, Laws of 1926, which requires that:

"When any tax shall be levied for the maintenance of any certain improved road, or roads, . . . such tax shall be used solely for the purpose of maintaining such road, or roads, and for no other purpose."

In support of the right of the city to share in these funds, counsel advances three principal contentions. The first contention is that when a board of supervisors levies a county tax, or a good roads district tax, for the benefit of the general county road fund, or road district maintenance fund, as the case may be, such levy is actually made for the benefit of such funds, and also for the benefit of the municipal street fund, to the extent of one-half of the tax collected within the municipality; in other words, that the real levy for the good roads maintenance fund is the amount remaining after paying over to the municipal treasurer one-half of the tax collected within the municipality.

We do not think this contention is sound. No part of this tax is levied primarily for the benefit of the municipal street fund, and no part thereof is payable to the municipality in all events. The municipality is only entitled to a proportionate share of this special road tax, in the event it elects to preserve, for itself, the benefit of this act, and, by resolution, notifies the board of supervisors that it will claim one-half of all road taxes collected on property within its boundaries. A municipality may or may not claim the benefit of the act, and if it does not do so, the taxes collected for road purposes remain a part of the fund for the benefit of which they were originally levied and collected.

Counsel for the appellee next contends that chapter 227, Laws of 1926, does not affect the distribution of the tax collected, between the good roads' maintenance fund, and the municipal street fund, but only restricts the use of that part of the taxes so collected which remains in the road maintenance fund after the municipality has received its proportionate share of the taxes collected on property within the municipality, and, consequently, that there is no conflict between chapter 227, Laws of 1926, and chapter 232, Laws of 1920. Such, however, is not the language of the said chapter 227. It mandatorily requires that all taxes levied for the maintenance of any specified, improved road, or roads, shall be used solely for the purpose of maintaining such road, or roads, and for no other purpose. If any part of a tax which was levied for the maintenance of a particular improved road, or roads, is paid into the municipal treasury for the benefit of the street fund, such tax is not used solely for the purpose of maintaining such road, or roads, and the plain mandate of this statute is violated.

It is next contended that, in the case at bar, the levy of three mills was not made for the purpose of maintaining any certain improved road, or roads, but was made generally, for the benefit of the maintenance fund of good roads district No. 1, and, consequently, chapter 227, Laws of 1926, has no application to the distribution and use of this fund.

It is true that in the order levying county and county district taxes for the fiscal year 1926, this particular item is listed simply as: "Good Roads District 1, Maintenance Fund — three mills." The only authority, however, which the board of supervisors had to make this special levy of three mills is based upon the recommendation of the road commissioners, and this recommendation is found in the resolution of the road commissioners, which recommended and requested a levy for certain named improved roads. The road commissioners were only authorized to recommend and request a levy for the public roads which had been surveyed, adopted and improved by them, and which were then under their jurisdiction. When the commissioners of this road district made their recommendation for a levy for the maintenance of certain named roads, this recommendation or resolution was accepted and approved by the board of supervisors by an order spread upon the minutes of the said board, and when, in pursuance of this resolution and request, the levy was actually made, although the specified improved roads were not again named in the order, it was, nevertheless, a levy for the maintenance of those certain improved roads named in the recommendation and request of the road commissioners, and, under the provisions of chapter 227, Laws of 1926, could be used for no other purpose than the maintenance of these particular roads. The circumstance that the improved roads named in the recommendation and request of the road commissioners were all the roads then in the district and under the control of said commissioners, does not change the character of the levy from one "for the maintenance of any certain improved road or roads, to a general levy for the maintenance of the roads of the district. We are therefore of the opinion that, in so far as they affect taxes levied for the maintenance of designated improved roads, chapter 232, Laws of 1920, and chapter 227, Laws of 1926, cannot be harmonized, and, to that extent, the latter act repeals the former, and, consequently, that the appellee, the city of Meridian, was not entitled to recover the taxes sued for.

The judgment of the court below will therefore be reversed, and judgment will be entered here for the appellant.

Reversed, and judgment for appellant.