Opinion
No. 33512.
January 9, 1939.
1. COUNTIES.
The statutes authorizing issuance of tax anticipation notes as a county-wide obligation, to be paid out of a county-wide levy, do not authorize issuance of notes to be paid solely by a district levy (Code 1930, sections 251, 252).
2. COUNTIES.
Where a tax anticipation obligation is to be paid only by the taxpayers of a particular district, such taxpayers alone have the right to protest against issuance of such obligation and to vote at an election concerning such issuance.
3. COUNTIES.
Proceedings for issuance, in name of county, of tax anticipation notes, proceeds of which were to be used exclusively for maintenance of roads in particular supervisor's district, and which were to be repaid by a tax levy exclusively upon the realty and personalty within such district, were invalid (Code 1930, sections 251, 252).
APPEAL from the chancery court of Walthall county; HON. R.W. CUTRER, Chancellor.
Bernard Callender and Hall Hall, all of Columbia, for appellant.
The board of supervisors had no statutory authority to issue tax anticipation notes for a supervisor's district.
The board of supervisors, in its attempt to authorize the issuance of these notes, was apparently proceeding under Sections 251 and 252 of the 1930 Code, as amended by Chapter 235 of the Laws of 1932. It was the position of the appellant in the trial before the Chancellor, and it is his position here, that these statutes do not authorize a single supervisor's district of a county to borrow money, in anticipation of taxes, for road purposes.
It will be noted that by Section 251 the board of supervisors is authorized to borrow money, in anticipation of collection of taxes, for the "purpose of defraying the expenses of the county," and clearly, this section does not authorize, either expressly or by implication, the issuance of tax anticipation notes, for road purposes, or for any other purpose, by any single supervisor's district of the county. Appellee, in proceeding to issue the notes involved in this cause, was attempting to write into this law authority which the Legislature declined to grant. It is our contention that Section 251 of the Code is clear and unambiguous, and that consequently, no enlargement or modification in interpretation is necessary to effectuate the legislative intent.
State v. Traylor, 56 So. 521, 100 Miss. 544; City of Hazlehurst v. Mayes, 51 So. 890, 96 Miss. 656; Hamner v. Yazoo Delta Lbr. Co., 56 So. 466, 100 Miss. 349.
Before tax anticipation notes may be issued, it is necessary that a notice of the intention of the board to issue the same shall be published in newspaper three weeks before the meeting at which the board proposes to issue such notes; and it will be further noted that if within that time ten per cent of the adult taxpayers of the county, exclusive of those who pay poll tax only, shall protest against the issuance of the notes, then the notes shall not be issued, unless authorized by a majority of the qualified electors of the county. We contend that Section 252 is only a further evidence of the intention of the Legislature to authorize the board of supervisors to issue general county obligations only, in anticipation of taxes.
If the order of the board had made a false affirmative adjudication, then the remedy would have been by direct appeal, but the order here makes no such adjudication and consequently it is entirely proper to raise the question in the validation proceedings.
Lee v. Hancock County, 178 So. 792.
We submit that the board of supervisors of Walthall County was restricted by the law to the issuance of general county obligations only, and that the notes issued for the benefit of supervisor's district number two are absolutely null and void, for lack of statutory authority in the board to order issuance of the same.
Mounger Calhoun, of Tylertown, for appellee.
The board of supervisors of Walthall County has not attempted to issue the tax anticipation note of any single supervisor's district.
The board by this proceeding proposed to issue the tax anticipation notes of Walthall County, Mississippi.
Appellee urges that the truth of the matter is that the board proposed only to issue the general obligations of the county to defray the expenses of maintaining the public roads of supervisor's district number two of the county. Appellee respectfully urges the attention of the court to the order giving notice of intention to issue the notes in question. Throughout this order the board declares that it will issue the tax anticipation notes of the county, not of any single supervisor's district.
The board of supervisors had full power and authority to issue the tax anticipation notes of the county the proceeds being for the maintenance of the public roads of a single supervisors district.
Sections 251 and 252 of the Mississippi Code of 1930 expressly authorizes the boards of supervisors of the several counties under certain conditions not here in question to borrow in anticipation of taxes for the purpose of defraying the expenses of the county. It is respectfully urged that the maintenance of the public roads of the several supervisors' districts in the county is an expense of the county. Supervisors District Number Two in Walthall County, Mississippi, is not a special separate road district. It goes without further statement therefore that the concerns of said district and the management of its fiscal affairs in the maintenance of roads are general county affairs and thereupon the expenses incident thereto are "expenses of the county" within the meaning of Sections 251 and 252 of the Mississippi Code of 1930 and the county may borrow to defray the same.
It is respectfully urged that the expenses of a supervisor's district whether for maintenance of roads or otherwise are essentially county expenses. A supervisor's district and the maintenance of the roads therein is merely one of the many general affairs of the county and general expenses of the county and it is elementary to state that the fact that special taxes may be levied by the board on the property of a particular district for particular expenses therein does not within itself segregate such district as an entity from the county. The county has many funds which are created by particular levies just as a particular levy is made in each supervisors for road maintenance and disbursements therefrom are county disbursements and expenses incident thereto are county expenses.
Argued orally by Bernard Callender, for appellant.
The collection of road taxes for Supervisor's District No. 2 of Walthall County having been found insufficient to maintain the public roads in that district, it was determined by the Board of Supervisors of the county and at the regular June, 1938, meeting to borrow $2000 in anticipation of taxes and to issue negotiable tax anticipation notes therefor.
The proceeds were to be used exclusively for the maintenance of the roads of said district and were to be repaid by a tax levy exclusively upon the property, real and personal, of and within that district, — not upon the county as a whole. All the proceedings of the Board, the orders, the published notice, and the form of the notes set forth in the minutes, made it clear that while the notes would be made in the name of the county, nothing would be thereby pledged beyond taxes to be levied and collected solely in and upon the property in said Second Supervisor's District of the county.
The authority relied upon for the issuance of the notes is found in Sections 251 and 252, Code 1930. We are pointed to none other. But these sections authorize such notes only when the obligation is to be not only a county-wide obligation, but is to be paid out of a county-wide levy. These sections cannot be made to fit into a plan to issue a tax anticipation note to be paid solely by a district levy, as is the case here.
This is evident for the reason that when an obligation such as this is to be paid only by the taxpayers of a particular district, they alone ex aequo et bono should have the right to protest against the issuance of such an obligation, and on an election they alone to vote for or against it; but the only provisions in the two sections of the statute in that regard are that the protests or the elections are to be of the entire county. If we were to construe the sections otherwise than as we do herein, the result would be produced that although every elector in the district to be solely taxed to pay the obligation should protest or vote against the proposal, the remainder of the county could override those who are to pay; or, on the other hand, if every elector in the district which is alone to pay should favor the proposition and should vote solidly to support it, the remainder of the county could prevent it by mere numerical superiority. We cannot ascribe to the Legislature any such an inequitable design, and for this, as well as for other manifest reasons, we cannot amend the statute by construction to accomplish such a purpose.
The proceedings were invalid, and should have been so adjudged by the chancellor.
Reversed, and decree here for appellants.