Opinion
No. 34192.
June 3, 1940.
COUNTIES.
Under statute, a county board of supervisors were authorized to levy a tax on property of a supervisor's district only without levying on property of the entire county, and fact that tax was levied for purpose of paying outstanding loan warrants neither added nor detracted from power of board to levy it (Code 1930, sec. 6443; Laws 1932, chap. 104, sec. 3).
APPEAL from the circuit court of Amite county; HON. R.E. BENNETT, Judge.
A.S. Coody, Jr., of Jackson, and E.H. Ratcliff, of Natchez, for appellant.
It should be here stated that insofar as the sheriff and his bondsman are concerned the appeal is abandoned, and as to these appellees judgment of the lower court should be affirmed, under the authority of the decision rendered in the case of Yazoo Mississippi Valley Railroad Company v. A.B. Conner, Sheriff and Tax Collector et al. (Miss.), 194 So. 915, as that decision eliminates the sheriff and bondsman from this litigation. As to the county, the case should be reversed and remanded under the authority of Walthall County Tax Anticipation Notes, reported in 185 So. 565, which case holds that Sections 251 and 252 of the Code of 1930, the only sections authorizing special levies to pay debts, 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.
Section 6443, Code of 1930, provides a manner in which separate road districts may borrow money, but it does not authorize any special levy for the payment of the note.
The sole question here is whether or not the Board had legal authority to levy a tax on the property of a supervisors district only, and not on the property of the entire county, for the special purpose of paying such warrants, and this question has been above answered in the negative.
J.T. Lowrey, of Gloster, for appellees.
We agree with counsel for appellant that the appellees, E.T. Harvey, tax collector, and the United States Fidelity and Guaranty Company, surety on the Tax Collector's bond, are eliminated from this litigation by the decision of this court in Yazoo Mississippi Valley Railroad Company v. A.B. Conner, Sheriff and Tax Collector, et al., 194 So. 915.
Counsel for appellant relies on "Walthall County Tax Anticipation Notes," reported in 185 So. 565, as the authority for suit in this case, and for the recovery of the taxes sued for. We submit that the case, supra, does not apply.
It was not a case where a levy of tax was being made to liquidate an indebtedness already legally incurred as is the case to determine in the present litigation, but was an attempt to borrow money under Sections 251 and 252 of the Code of 1930. Again, it was not a case where a taxpayer was objecting to the payment of a tax, as is the case now before the court, but the objections in that case were timely made by taxpayers before the levy for tax had ever been made.
A county may, in the discretion of the Board of Supervisors, work and maintain its public roads either as a county-wide unit or by separate road districts. Section 6419 of the Code of 1930 provides the method of creating separate road districts in a county and defines the jurisdiction of the Board of Supervisors in the organization of separate road districts in a county.
Section 6443 of the Code of 1930, provides that separate road districts may borrow money "In a sum or sums not greater in the aggregate of two per cent (2%) of the assessed valuation of the real and personal property within such district; such loans to be evidenced by the loan warrant, or warrants, of such district, signed by the Road Commissioner thereof and countersigned by the President of the Board of Supervisors, and to bear not more than six per cent interest (6%) per annum and to run not more than five (5) years from the issuance thereof. And provision shall be made at the time of making said loan for the payment thereof at maturity out of the road funds of said district."
It would be futile to authorize the incurrence of debt without likewise providing a means of raising revenue for its payment, and these contingencies are fully provided for in the Section 6443 of the Code. It is safe to state that the recognized custom of depositing taxes when collected from a district levy as provided by Chapter 104, Section 3, of the Laws of 1932, is to deposit them to a road fund of the separate road district in the county depository and that from said fund to pay for the construction and maintenance of the public roads of the district and any indebtedness incurred thereby.
Argued orally by E.H. Ratcliff, and A.S. Coody, Jr., for appellant, and by J.T. Lowrey, for appellees.
This is an action by the appellant on the bond of the sheriff of Amite County, and also against the county, to recover taxes paid by it to the sheriff under protest. A demurrer to the declaration was overruled, and the appellant declining to plead further, the action was dismissed. The appellant, in accordance with Yazoo M.V.R. Co. v. Conner, Sheriff and Tax Collector (Miss.), 194 So. 915, has abandoned its action on the sheriff's bond, and asks for the reversal of the judgment of the court below against the county only. It appears by implication from the declaration that Amite County is divided into separate road districts, whether co-terminous with the supervisor's districts does not appear. The appellant owns property in Districts Nos. 2 and 3. The taxes paid under protest were collected under a 1 1/2-mill levy on property in District No. 2 and a 2-mill levy on property in District No. 3, both made by the Board of Supervisors of the county. The order or orders levying the taxes do not appear, but the declaration alleges that the levies were made for the purpose of obtaining funds to pay off outstanding loan warrants issued by the two districts. The validity of these warrants is not challenged. The only question discussed by counsel, and to which this opinion will be limited, is whether any statute authorizes boards of supervisors "to levy a tax on the property of a supervisor's district only and not on the property of the entire county for the special purpose of paying such warrants." Section 6443, Code of 1930, authorizes separate road districts to borrow money and issue loan warrants therefor, and requires a provision to "be made at the time of making said loans for the payment thereof at maturity out of the roads funds for said district." Section 3 of Chapter 104, Laws of 1932, authorizes boards of supervisors to "impose a county-wide levy or levies for the maintenance and/or construction of roads and bridges not to exceed seven mills in any one year; and if the county-wide levy or levies is less than seven mills, there may be a levy for any supervisor's district or road district, provided that the levy for any such supervisor's district or road district when added to the county-wide levy or levies shall in no event exceed seven mills." The taxes collected in a district under a special levy therefor pursuant to this statute become a part of the road funds of the district out of which Section 6443 provides that the district's loan warrants are to be paid; that the tax here was levied for the purpose of paying outstanding loan warrants neither adds to nor detracts from the power of the board of supervisors to levy it. The only limitation imposed by the statute on the power to levy the tax is that the levy for the district "when added to the county-wide levy or levies shall in no event exceed seven mills," and the declaration contains no averment of such an excess here.
In re Walthall County Tax Anticipation Notes, 184 Miss. 572, 185 So. 565, and Illinois Central R. Co. v. Carroll County (Miss.), 196 So. 242, decided May 27, 1940, not yet reported [in State Reports], deal with entirely different statutes and have no application here.
Affirmed.