Opinion
No. 27279.
October 1, 1928.
SCHOOLS AND SCHOOL DISTRICT. Decision of board of supervisors that petition for tax levy was signed by majority of electors held final and appealable without bond ( Hemingway's Code 1927, section 60).
Decision of board of supervisors to effect that petition under Laws 1924, chapter 283, section 104 (Hemingway's Code 1927, section 8739), praying for levy of taxes, was signed by majority of qualified electors of school district, is final, within meaning of Hemingway's Code 1927, section 60 (Code 1906, section 80), authorizing an appeal therefrom without a bond.
APPEAL from circuit court of Prentiss county; HON. C.P. LONG, Judge.
Friday Windham, for appellant.
The one legal question to be decided by this appeal is whether or not an order of the board of supervisors, granting the prayer of a petition asking for an additional tax levy for school purposes under and pursuant to the provision of section 104, chapter 283, Laws of 1924, is an interlocutory or final order, and whether or not an appeal taken from such order is taken under section 80, Code of 1906 (Hemingway's Code 1927, section 60) or under section 81, Code of 1906 (Hemingway's Code 1927, section 61)?
In construing these two sections the court in the case of Kuhn Bros. v. Warren County, 98 Miss. 879, 54 So. 442, said: "Section 81 applies specifically to all appeals relating to taxes, while section 80 applies to all other cases." This was held also in the case of Jennings v. Coahoma County, 79 Miss. 523, 31 So. 107.
In the case of Havens v. Brown, 132 Miss. 747, 96 So. 405, the court had before it the refusal of the board of supervisors, to eliminate the names of certain petitioners from the petition praying for an increase in tax under the provision of chapter 170, Laws of 1920, which is the same provision contained in section 104, chapter 283, Laws of 1924. Chief Justice SMITH in delivering the opinion of the court said: "The right of the appellees to withdraw from the petition praying for the increase in the school tax here in question was for the determination of the board of supervisors, subject to the review on appeal to the circuit court under the provisions of section 80, Code of 1906 (Hemingway's Code, section 60). And since the appellees do not appeal from the orders of the board by which they were refused the right to withdraw from the petition and the tax levied, they cannot now complain thereat."
We think that the case of Havens v. Brown, supra, is identical on the facts with the facts of the case here and that the holding of the court in that case is decisive of the question that this appeal was properly taken under section 80, Code of 1906 (Hemingway's Code 1927, section 60). And since the appeal was taken under section 80 it can be prosecuted without bond. Monroe County v. Strong, 78 Miss. 565, 29 So. 530. J.S. Finch, for appellee.
Appellants contend that the order of the board of supervisors at its regular September, 1927, term, is an order authorizing an additional levy of three mills upon all the taxable property of the Osborne Creek consolidated school district, and that said order is a final order from which an appeal will lie. This position is not tenable for the reason that the order of September, 1927, merely declared it the intention of the board to make the three mill levy, and for the further reason that no order was passed at said September meeting levying a tax of three mills on said district. The three mill levy was made in compliance with chapter 253, Laws of Mississippi, 1920, being section 3708, Hemingway's Supplement of 1921, which provides that such taxes are to be levied at the regular November term of the board of supervisors.
The order made and entered at the September, 1927, meeting, of the board of supervisors was merely an interlocutory order expressing the intention of the board to make such levy, and giving notice to all parties interested that such levy was to be made, thereby giving the taxpayers an opportunity to contest the making of this additional levy. This order certainly could not be a final order, and therefore, no appeal can lie. Madison County v. Frasier, 78 Miss. 880, 29 So. 765; Moller-Vanberboon Lumber Co. v. Board of Supervisors of Attala County, 99 So. 823; Marathon Lumber Co. v. State, 139 Miss. 125, 103 So. 798; Wilkerson County v. Forrest Creek Lumber Co., 135 Miss. 616, 100 So. 2; Knox, Attorney-General, v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Edward Hines Yellow Pine Trustees v. State ex rel. Knox, Atty.-Gen., 112 Miss. 12.
The facts in Havens v. Brown, 132 Miss. 747, 96 So. 405, relied on by counsel for appellant as controlling in this case, are decidedly at variance with the facts in the case at bar. In the case of Havens v. Brown, there was a petition before the court asking that names of certain signers be withdrawn from the original petition, the relief in which said petition was denied. In the case at bar, the appeal as shown by appellants in paragraph 1, page 1, of the transcript of the record of the clerk of circuit court herein filed, is solely "for the purpose of appealing to the next regular term of circuit court of Prentiss county, from an order of the board authorizing an additional special levy of three mills upon all the taxable property of the Osborne Creek consolidated school district." The case at bar, being an appeal from an order relating to taxation, therefore does not come within the purview of the principle of law announced by Chief Justice SMITH in the case of Havens v. Brown, supra.
This case, if appealed at all, should have been appealed under section 81, Code of 1906 (section 61, Hemingway's Code 1917); Kuhn Brothers v. Warren County, 98 Miss. 879, 54 So. 442; Jennings v. Coahoma County, 79 Miss. 523, 31 So. 107.
On the proposition of the premature appeal raised in this case, appellee is unable to differentiate the principle of law announced in Madison County v. Frasier, and Moller-Vanderboon Lumber Company v. Board of Supervisors of Attala County, cases, supra, and the long line of authorities reannouncing the same principle, from that shown in the case at bar.
This is an appeal from an order of the court below, dismissing an appeal from a decision rendered by the board of supervisors of Prentiss county. A petition was filed with the board of supervisors under section 104, chapter 283, Laws of 1924 (Hemingway's 1927 Code, section 8739), praying for an annual levy of a tax of three mills on the property within a consolidated school district for purposes authorized by the statute. The appellant filed a protest against the levy of the tax, and at its September, 1927, meeting the board adjudicated, on evidence, that a petition praying for the levy of taxes was signed by a majority of the qualified electors of the school district.
A bill of exceptions, setting forth this decision of the board, and the evidence on which it was based, was signed by the president of the board, and the case was then appealed by the protestants, without the execution of a bond therefor, to the circuit court, which court dismissed the appeal on the ground, first, that it had been prematurely taken, and, second, that no bond had been executed therefor.
The appeal is not under chapter 120, Laws of 1918 (Hemingway's 1927 Code, section 61), as contended by counsel for the appellee, but is under section 80, Code of 1906 (Hemingway's 1927 Code, section 60). An assessment of taxes from which an appeal lies under the first of these statutes is an assessment of property for taxation, and not the levy of the tax itself. Section 80, Code of 1906 (Hemingway's 1927 Code, section 60), does not require a bond for an appeal, and we will assume that the judgment or decision from which it allows an appeal is a final judgment or decision from which it allows an appeal is a final judgment or decision. The decision here in question is to all intents and purposes final, for the board of supervisors was without power, after the adjournment of the term at which it was rendered, to rescind or vacate it ( Keenan v. Harkins, 82 Miss. 709, 35 So. 177), and thereafter was without the right, under the statute, to refrain from annually levying the tax prayed for.
Reversed and remanded.