Gully v. Adams County , 169 Miss. 413 ( 1934 )

The state tax collector filed this suit against Adams county for thirty-six thousand three hundred eighty-nine dollars and eighty cents, claiming that the city of Natchez was entitled to this sum from the county, being one-half of certain moneys expended by the board of supervisors for road purposes in the city and county for the years 1927-1930; claiming said sums under the provisions of chapter 232, Laws of 1920, as amended by chapter 129, Laws of 1928. It was alleged in the bill that the city of Natchez worked its streets at the expense of the municipal treasury, and was entitled to one-half of all ad valorem taxes collected by or for the county on property within said municipality for road purposes for said county. It was alleged that the board or supervisors, instead of levying a specific tax for road purposes, levied a general tax for the general funds of the county, sufficient to maintain roads in the county, and would from time to time transfer from the general county funds to the county highway funds sufficient money for the maintenance of the roads of the county, placing the diverted funds to the credit of the highway fund; and that this practice was systematically resorted to by the board of supervisors during the years 1927-1930.

It was alleged that on the 5th day of May, 1920, the municipal authorities gave notice to the board of supervisors that they would claim the benefit of chapter 232, Laws of 1920, by which the city was entitled to one-half of the ad valorem taxes collected for road purposes within the city of Natchez. That prior to 1920 the board of supervisors had levied a special road fund for the working of the public roads of the county; and that after the publication of the notice from the municipal authorities, the board of supervisors ceased to levy taxes for road purposes for Adams county by a specific levy for that purpose, but adopted the subterfuge and administrative device of including the road maintenance levy in the general fund levy for the collection of taxes for the maintenance of the highways of the county; and that this practice was pursued from time to time, and especially during the said years as an administrative device to avoid paying the city of Natchez its portion of the money levied and collected for road purposes.

It is alleged that this practice is contrary to the legislative policy and intent, and that the said levies were not made for purposes of paying bonds issued for road construction and maintenance, or the interest thereon, or to create a sinking fund to retire the same. It is further alleged that during the years 1927-30, the board of supervisors provided in the county budget that a specified sum should be allocated to the maintenance of roads in Adams county, but made no specific levy of taxes for the raising of the money; and each year paid from the diverted general county fund amounts largely in excess of the budget of each year, by the systematic use of the device and subterfuge mentioned. It was not alleged what road laws were in force during said period in Adams county, and this should have been done because section 85 of the Constitution requires the adoption, by the board of supervisors, of laws providing for contract or convict systems, for the working of public roads before they become effective. That the notice or resolution passed on the 5th day of May, 1920, by which the city claimed the benefit of chapter 232, Laws of 1920, was served on that day on the board of supervisors of the county. It was further alleged that the state tax collector had made demand upon the board of supervisors for such sum, and that he was authorized to sue the county on behalf of the municipality.

The bill was demurred to on a number of grounds, the demurrer was sustained, and the state tax collector declined to plead further. Thereupon, final judgment was rendered.

I am of the opinion that the judgment should be affirmed, because the bill shows that the board of supervisors did not make a levy for road purposes under section 6390 of the Code of 1930; and it is immaterial whether or not the board had authority to make the general levy for county purposes, and thereafter diverted a portion of the general county levy to the county highway fund. In my opinion the municipality was not entitled, in either event to one-half of the funds allocated by the county from the general fund to the highway fund. If the board had no legal power to so divert the money collected for general county purposes, this would not give the city a right to one-half of the money under the illegal transaction; and if they had authority to do this, then the city did not become entitled to one-half of the amount collected, or diverted to road maintenance. What the statute contemplates is that where a special levy is made for road purposes, as may be done, the city shall be entitled to have one-half of such funds, so lawfully collected. The measure of rights in this case is chapter 129, Laws of 1928, amending chapter 232, Laws 1920. See State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, and cases cited therein.

In my opinion, this controversy is controlled by the principles laid down in Town of Waveland v. Hancock County, 110 Miss. 471, 70 So. 561, where it was held that while the Code of 1906, sections 4433 and 4469, relating to taxes collected directly for working public roads, provides that one-half of the tax collected on property within the municipality shall be paid to such municipality for street purposes, yet where under the Laws of 1910, chapter 150, the board of supervisors issued bonds for road purposes, and levied and collected an ad valorem tax on all taxable property of the county, including property in a town which worked its own streets, the town was not entitled to one-half of the taxes collected upon urban property, since such tax was collected in the interest of bondholders, and must be paid to the holders of the bonds.

If the city had appealed from the order levying the taxes, or from the order allocating the taxes, or had taken timely proceedings by mandamus to compel the levying of road taxes, instead of making the levy for general county purposes, and diverting the necessary amount for road purposes, it might have standing in court; but as no assessment for road purposes, or levy therefor, was made, the city does not come into the right to one-half of such funds as might have been spent for road purposes. The difficulty is plain: If the board diverted a given amount for road purposes, and it was spent for that purpose, it would manifestly require, in order for the city to get an equal amount, to have an additional levy to that which was made. The city apparently acquiesced in the proceeding, and took no steps to prevent the practice complained of here, or to secure a proper and legal levy by which its rights could be enforced.

It is clear to my mind that the city was not entitled to maintain the suit here sought to be maintained, and the judgment of the court, for that reason, was correct. But if mistaken in this view, still the suit must fail, because the rights of the city would be measured, under this suit, by the Laws of 1928, chapter 129, which, so far as this suit is concerned, governs the rights of the city, if its contention was sound as to the proposition that it could now challenge what the board did, and collect what it should collect, had a proper levy been made for road purposes. The right of action sought in the bill in this case is for the years 1927-1930. By section 4 of the Code of 1930, it is provided:

"The repeal of any statutory provisions by this code shall not affect any act done, or any cause of action, or any right accruing or accrued or established, or any suit or proceeding had or commenced in any civil case, or any plea or defense or bar thereto, previous to the time when such repeal shall take place; but the proceedings in every such case shall be conformed, as far as practicable, to the provisions of this code."

It will be seen from this section that the provisions of sections 6417, 6418, of the Code are entirely prospective, and that all of the rights accruing or accrued are established prior to the taking of effect of the Code, and are not affected by the Code sections.

I also think that the demand of the state tax collector is not sufficient to comply with section 3 of chapter 129, Laws of 1928, or with section 6418 of the Code of 1930. A general demand made of the board of supervisors after the debt has matured, and in which nothing but a suit is necessary to enforce the demand, is governed by section 253 of the Code of 1930, which provides that any person having a just claim against the county, should first present it to the board of supervisors for allowance or disallowance, and providing that if such claim should not be allowed, there might be an appeal to the circuit court or a suit against the county in the proper court.

The state tax collector's demand might satisfy this statute, but I think it would take a demand by the board of mayor and aldermen, or municipal authorities, as such, to come within section 3 of chapter 129, Laws of 1928. The demand contemplated in this statute is separate from, and in addition to, the demand mentioned in section 253, Code of 1930. This demand, in my opinion, should have been made by the municipal authorities, having the sole authority so to do. They may waive the right, and there are many conceivable cases in which it would be advantageous to the municipality to do so, although ordinarily this is not the case. This section reads as follows:

"That where any municipality may be entitled to a portion of any road tax under the provisions of chapter 232, Laws of 1920, which has not yet been paid to it, such municipality shall be entitled to receive payment thereof on application to the board of supervisors of the county in which it is located, and the board of supervisors is hereby authorized to pay to such municipality its portion of such tax or such part thereof as may not have been otherwise appropriated or expended, notwithstanding the provisions of chapter 227, Laws of 1926."

It will be perceived from a careful reading of the statute that the municipality is not entitled to receive the funds until demand has been made, and then it is not entitled to receive them if such funds have already been expended, because the latter part of the section authorizes the supervisors to pay such municipality its portion of such tax, or such part thereof as may not have been appropriated or expended.

The declaration does not allege that the funds had not been expended or appropriated prior to the making of the demand. This was expressly held to be a requisite to the recovery in the case of the Town of Ackerman v. Choctaw Co., 157 Miss. 594,128 So. 757. I think the question was expressly presented and decided in this case. The opinion states (page 599 of 157 Miss.,128 So. 757, 758):

"On May 7, 1929, the town council passed another resolution to the same effect which was duly entered on the minutes and of which notice was served on the county; and appellant contends that it is entitled to recover upon that resolution, under section 3, chapter 129, Laws 1928. This section reads as follows: `That where any municipality may be entitled to a portion of any road tax under the provisions of chapter 232, Laws of 1920, which has not yet been paid to it, such municipality shall be entitled to receive payment thereof on application to the board of supervisors of the county in which it is located, and the board of supervisors is hereby authorized to pay to such municipality its portion of such tax or such part thereof as may not have been otherwise appropriated or expended, notwithstanding the provisions of chapter 227, Laws of 1926.'

"Where this section had reference to municipal resolutions passed subsequently to the enactment of said section we need not decide, because the recovery under it is authorized only upon the condition that the funds had not previous to the demand `been otherwise appropriated or expended' by the county; and there is no allegation in the bill of complaint that the county had at the time of the demand any part of said 1928 road funds on hand not already expended or otherwise appropriated, nor is there any definite proof on that issue. Appellant says that this is defensive, but we think this view is erroneous, under the general rule that where a cause of action is dependent upon conditions, the burden is upon complainant to allege and prove that the facts exist which fulfill or satisfy those conditions; and we are pointed to no sufficient reason for an exception to the rule in this case. The general rule above stated is applied with strictness to actions founded on statutes." (Citing authorities).

This is manifestly a correct conclusion. The Legislature, in revising the rights of the municipality, recognized that the funds may have been expended prior to the demand; and, if so it did not intend to give the right. We must give effect to every part of the statute; and under the terms of the statute, the only part to which the municipality has the right, on making the demand, is such part as may not have otherwise been appropriated or expended.

This present case is not controlled by Gully, State Tax Collector, v. Board of Sup'rs of Copiah County (Miss.),147 So. 300, 301. In that opinion the court said:

"This recital is said by counsel for the appellee not to sufficiently set forth a compliance with the requirements of section 2 of chapter 232, Laws 1920, that municipalities shall notify the counties of their intention to claim one-half of the road taxes collected within the municipalities. The question thereby presented is one of some difficulty, but it will be eliminated by a proper amendment of the declaration when the case is remanded to the lower court, as it must be, for reasons hereinafter to be set forth, consequently, we will pretermit any discussion of it. Section 3 of chapter 129, Laws 1928, obligates counties to pay to municipalities one-half of the ad valorem taxes of the character here in question which have not been paid to it, and which may not have been otherwise appropriated or expended. The declaration contains no allegation that such is here the case, consequently, in so far as the taxes here collected prior to the enactment of chapter 129, Laws of 1928, are concerned, the declaration is fatally defective. Town of Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757."

The taxes sought to be collected in the Copiah County case quoted from were said to have accrued after the enactment of the Code. In the Copiah County case, supra, and in Town of Purvis v. Lamar County, 161 Miss. 454, 137 So. 323, the taxes in question had been specially levied for road purposes. Those cases are different from the one we now have before us. Here there was no levy of special taxes for road purposes. It seems to me that the board of supervisors had the right in the present case, unless a contract or convict system had been adopted by the board for road working in Adams county, to make the levy under the general county levy, and to appropriate it to any public use authorized by law to receive public funds from the county. Section 214, Code of 1930, reads as follows:

"The boards of supervisors shall have within their respective counties full jurisdiction over roads, ferries, and bridges, except as otherwise provided by section 170 of the Constitution and all other matters of county police. . . . They shall have power to levy such taxes as may be necessary to meet the demands of their respective counties, upon such persons and property as are subject to state taxes for the time being, not exceeding the limits that may be prescribed by law; they shall cause to be erected and kept in good repair, in their respective counties, and in each judicial district thereof, a good and convenient courthouse and a jail; and they shall have and exercise such further powers as are or shall be conferred upon them by law."

It will be seen from this section that the board of supervisors has power to levy such taxes as may be necessary to meet the demands of their respective counties, upon such persons and property as are subject to state taxes for the time being, not exceeding the limitations that may be prescribed by law, and that the board of supervisors had full jurisdiction over roads, ferries, and bridges, except as provided by section 170 of the Constitution, and of all other matters of county police. It would seem that they had the power to make a general county levy for all purposes authorized by law, provided they do not exceed the limits placed by statute upon that power. The power is broad and comprehensive. The general county funds appear to be available for general county purposes, including road and bridge maintenance or construction, unless a special system had been adopted for that county that would require compliance with sections 6389 and 6390, Code 1930 (Laws 1928, chap, 157, Laws 1920, chap. 276). By section 256, Code of 1930, the board of supervisors shall direct the appropriation of money that shall come into the county treasury, but shall not appropriate the same to an object not authorized by law.

These two sections, construed together, seem to give the board the power to determine whether they will collect the taxes for general purposes, and then apportion it out to the various public purposes within their jurisdiction.

I do not think the budget law is important in this case, unless the county had adopted a contract or convict system of road work. But if it is, there was designated in the budget the amount of money that would be allocated to road purposes, thereby complying with the budget law. This law does not control the manner in which the board of supervisors shall levy the respective funds; and unless some other limitation or restriction is found in the statute, their discretion seems to be full and plenary. Having authority to expend money upon roads, it appears to me that they may include such expenditures in the general levy estimates. However, as stated above, the city has here no concern with that question. Had it acted at the proper time, and in the proper manner, it may have had rights. Had it sought to compel the board to resort to a special levy for road purposes under section 6390, Code 1930, it might possibly have prevailed; but it did not do so, and its failure does not authorize it now to share in this money expended for road purposes out of the general county funds. The city cannot profit by such act.