Board of Sup'rs of De Soto County v. Weatherford

• Decision Date: 30 April 1917
• Docket Number: 19156
• Citation: 114 Miss. 259,75 So. 114
• Court: Mississippi Supreme Court
• Parties: BOARD OF SUPERVISORS OF DE SOTO COUNTY v. WEATHERFORD

75 So. 114

114 Miss. 259

BOARD OF SUPERVISORS OF DE SOTO COUNTY v. WEATHERFORD

No. 19156

Supreme Court of Mississippi

April 30, 1917

Division B

APPEAL from the circuit court of De Soto county, HON. E. D. DINKINS Judge.

Mandamus by J. Hieskell Weatherford against the Board of Supervisors of De Soto County and others. From a judgment for petitioners, the county appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and remanded.

R. L Dabney, for appellant.

This is one of the cases in which a full statement of it is about the best argument that can be made. When chapter 149, Acts of 1910, is construed, the case settles itself. Since the 1900 contract road law was passed by the legislature, sections 4465 to 4475 of the 1906 Code being but a reenactment of the 1900 contract road working law, the three mill road tax, and the commutation money from road bonds constitute the only fund available for road maintenance, except where some one of the many special road laws have been adopted. And since the year 1900, roads in counties having adopted the contract system could only be worked with certain designated funds.

Sections 4 and 6, of chapter 149, evidently contemplate the roads being constructed out of the proceeds of the bond sale, and if after construction any of the bond money remain, it can be used in maintenance. But in addition to any balance of the bond money, the maintenance fund is to receive all of the one mill levy, and a distributive share of the three-mill levy, provided for in section 4469 of the Code of 1906, and a distributive share of the commutation money paid by road hands in the district. The three-mill tax being a county road tax, and the commutation money being a district fund--that is, the board of supervisors could use the three-mill road tax in any part of the county, regardless of where collected while the commutation money must be used in the supervisor's district in which collected. It is true that section 11, Acts of 1910, chapter 149, directs that a proportionate share of the three-mill tax, as well as a share of the commutation money be placed to the credit of the bond road commissioners, but the same section provides that other road laws are not repealed by the enactment of chapter 149. What I am trying to say is, that under section 4469 of the Code the ad valorem road tax can be used by the supervisors in any part of the county that has come under the contract road working system. That being true, the direction given in section 11 of chapter 149, that the ad valorem, as well as the commutation tax be divided between the bond roads and the non-bond-roads does not deprive the board of supervisors of the right to use the three-mill tax in any district of the county they may see proper. As I see it, the board could say, "We will divide the ad valorem road tax into four, instead of five equal parts, and use the four portions in the first, second, third, and fourth districts, but we will use none of it in the fifth." This might be arbitrary but could it be prevented, if in the discretion of the board such use was to the best interest of the county as a whole. And if it could not be prevented, how can it be said that the judicial department of the government can, by mandamus direct another department how its discretion is to be exercised. I concede that if the board concluded to expend the ad valorem road tax in the district in which collected, that having exhausted its discretionary power as to what part of the county it would use this tax, in that the courts could then say that the directions of said section 11 should be observed. But until it is shown that the board has so elected to use the three mill road tax, the courts cannot say to it that it must so use it; and further, the court having used the board's discretionary power for it, could not say to the board: "We have decided for you that you will use this tax in the district in which collected, now the directions of section 11, of chapter 149 apply, and you must divide with the bond roads in the district."

But apart from the question of the use of ad valorem road tax, was the board under any duty to share any fund with the bond road commissioners during the period of construction? Is it not much more probable that the legislature thought about it as the board did--that while the roads taken over by the commissioners were under construction--and therefore not in a condition to be used by the traveling public, that the road-maintenance funds of the county were to be used in the upkeep of roads that were in use?

If my construction of the "bond-road" law is correct the judgment of the circuit court must be reversed for still another reason: The very arrangement of the act shows that the one-mill tax, provided for in section 6, is for maintenance. The act provides for the bond issue; for the taking over of roads that have been built--not before, for the levy of the one-mill tax for maintenance, surely this tax is beyond the reach of the holder of a warrant for the construction of a bond road.

If the judicial department has the power to coerce the board into levying a special tax for the payment of these warrants, I sincerely hope the power will be exercised. But as the appellees did not perfect cross-appeal, this court may be without jurisdiction to consider the action of the lower court in dismissing the mandamus petition in so far as it prayed for an order to the board to levy the special tax. However, if the cases could be treated as though cross-appeals had been perfected, the appellants will agree, as that is about the only way to pay this money without inflicting utter ruin on the bond roads of two districts.

I respectfully submit that for the reasons given above the judgment of the circuit court should be reversed, and the causes remanded.

Wilson & Armstrong and L. E. Farley, for appellee.

It was the duty of the board of supervisors of De Soto county, under section 11, chapter 149, Acts of 1910, to apportion to the Separate Bond Road District of the Fifth Supervisors District, to be subject to the control of the commissioners of the district and to be used therein, out of the proceeds of the general ad valorem and commutation tax levied on the whole county for road purposes, such an amount as would have been necessary to work the bond roads of said district had no separate bond road district been created. The word "shall" in the section is mandatory. Chapter 149, Acts of 1910, section 11, 7 Words & Phrases, pp. 6463 and 6467--"Shall"; 4 Words & Phrases (New Series), pp. 557 and 561, same title; City of Newton v. Board of Supervisors Jasper County (Iowa, 1907), 112 N.W. 167; Haythorn v. Van Kernen & Son (N. J. 1909), 74 A. 102.

The purpose of this section of the act was to prevent the taxpayers of the bond district from paying double taxes, the general tax levied by the board on the whole county, and payable by those in the bond district as well as others, and the special tax or taxes levied in the district alone on account of the bond issue, etc., without deriving a benefit from both of the funds realized from said taxes. McComb City v. Pike County, 91 Miss. 736, 45 So. 871; City of Albion v. Boone County (Neb. 1913), 143 N.W. 749.

The board of supervisors had no authority to create a separate "Bond Road Maintenance Fund," distinct from the fifth supervisor's district bond road fund, nor to prohibit the payment of appellee's warrants from said fund. The act does not contemplate the creation of more than one fund, as prescribed in section six, which fund should comprise the proceeds of the sale of bonds, the proceeds of the one mill tax levied on the property within the district, and the district's proportionate share of the proceed of any general ad valorem or commutation tax levied on the whole county. There is no justification for the distinction drawn by the board of supervisors between construction and maintenance. Section 6, chapter 149, Acts of 1910; Weston v. Hancock County, 98 Miss. 800, 54 So. 307; Town of Pelham v. The B. F. Woolsey, 16 F. 418; Hanlon v. Clearcy, 133 S.W. 953, 142 Ky. 46; Dallas County v. Plowman, 99 Texas, 509, 91 S.W. 221; Ex Parte Crooks (Tex.), 135 S.W. 139; Smith v. Grayson County (Texas), 44 S.W. 912; Thomason v. Court of County Com'rs (Ala. 1913), 63 So. 87; State v. St. L. I. M. & So. Ry. Co. (La.), 70 So. 621.

Mandamus is a proper remedy to compel the board of supervisors to obey the law under which they act, and to perform an official duty. Jefferson County v. Arrighi, 51 Miss. 667; Kelly v. Wimberly, 61 Miss. 548; State ex rel. v. Bisping (Neb.), 130 N.W. 1034; Jefferson County v. Clark (Georgia), 43 S.E. 722; Humboldt Co. v. Churchill County Com'rs, 6 Nevada, 30.

It is immaterial that the pro rata of the general ad valorem and commutation taxes levied on the whole county between the time of the creation of the bond road district and the March, 1914, meeting of the board, which should have been alloted to the district, may have been expended. If they have been expended the expenditure was illegal, and the county remains liable on its obligations. Hebron Bank v. Lawerence County (Mississippi), 69 So. 209; State ex rel. v. Bisping (Neb.), 130 N.W. 1034; Oregon City v. Clackamas County (Ore.), 52 P. 310; People v. Bender, 36 Mich. 195; People v. Comptroller of City of New York, 77 N.Y. 45.

OPINION

ETHRIDGE, J.

In the year 1912 the board of supervisors of De Soto county, acting under chapter 145, Laws 1912, which amends chapter 149, Laws 1910, created road districts in three supervisors districts of the county, among the districts being district No. 5 which is involved in the present controversy, and issued bonds under the said chapter in the sum of...