Browning v. Mathews , 73 Miss. 343 ( 1895 )

Cooper, C. J.,

delivered the opinion of the court.

The act approved March 5, 1878 (Acts, p. 305), contains in itself a complete scheme, under which any parts, or the whole, of the counties of Monroe, Clay, Chickasaw, Oktibbeha, Lowndes, Panola, Lafayette, DeSoto and Copiah might be put into districts in which stock should not be permitted to run at large. It further provided for the appointment of commissioners, who were authorized to assess all real estate situated within such districts, and to collect a tax thereon, and to expend the same in the construction and repairing of a suitable fence separating such districts from other portions of the county. The boards of. supervisors of the counties have no duty to perform in relation to such fences, and no jurisdiction over them. Freeman v. Supervisors of Lee County, 66 Miss., 1.

It affirmatively appears that townships 9 and 10 of range 4, in Lafayette county, by the petition of the inhabitants thereof, were, in May, 1879, put under the operation of the act of 1878, and have so remained to this time.

Chapter 46 of the code of 1892 contains provisions by which (on petition of freeholders and leaseholders for a term of three years or more, or on an affirmative vote, if the board of supervisors shall see fit to order an election) any county in the state or one or more townships thereof, or any part or parts of a county which are separated by natural boundaries, may elect to come under the operation of said chapter, in which event lands in such district may be cultivated without fences, and owners of live stock are required to keep the same confined within safe inclosures. But, by § 2064, it is declared that ‘ ‘ local laws authorizing the cultivation of crops without fences, or within certain kinds of fences, shall remain in force until altered, amended or repealed on petition or vote under the provisions of this chapter. ’ ’

Sections 2060 and 2062, authorizing boards of supervisors to build fences and impose taxes on specific lands to meet the expenses thereof, have no reference to the fences provided for by the act of 1878. Such fences are to be constructed under the direction of the commissioners to be appointed as pointed out in that act.

If it be said that the fence ordered by the board of supervisors to be built is' not the same fence required by the act of 1878, but is a fence authorized by § 2060, and that such fence may be constructed by the board whenever and wherever it is necessary “to confine stock to certain limits, and to keep them off the cultivated lands,” the reply is twofold:

1. The fence contracted for is wholly within -townships 9 and 10, which are controlled not by the code chapter, but by the act of 1878.

2. When the taxes to be levied are laid ££ only on specific lands whose owners,' by reason of the advantages accruing to them, are deemed the proper persons to bear the burden,” such taxes are to be laid on lands outside, and not inside, of the district under the stock law, for it is expressly provided that, in laying said charge, ‘£ no advantage shall be considered except that of depasturing stock. ’ ’

In the districts in which crops may be cultivated without fences, stock must be confined by its owners, who therefore can have no £ £ advantage of depasturing stock. ’ ’ Outside these districts, stock is permitted to run at large, and, for this advantage, the legislature has authorized boards of supervisors to levy a tax upon the lands located where stock are so permitted to be depastured, according as such owners may or ma.y not be £ £ deemed proper persons to bear the burden. ’ ’

The order of the board of supervisors levying the tax the collection of which the appellant enjoined, having been made in a matter over which it had no jurisdiction, was a nullity. The tax was “without authority of law” (code, §483), and the injunction should have been made perpetual.

The decree is reversed, and decree final may he entered here.