City of Grenada v. Grenada County

• Decision Date: 19 November 1917
• Docket Number: 19711
• Citation: 76 So. 682,115 Miss. 831
• Court: Mississippi Supreme Court
• Parties: CITY OF GRENADA v. GRENADA COUNTY

76 So. 682

115 Miss. 831

CITY OF GRENADA v. GRENADA COUNTY

No. 19711

Supreme Court of Mississippi

November 19, 1917

Division A

APPEAL from the circuit court of Grenada county, HON. H. H. RODGERS Judge.

Proceedings by the City of Grenada to recover for paving from the County of Grenada. From a judgment for plaintiff, defendant appeals.

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

Judgment reversed.

W. M Mitchell, for appellant.

Chapter 260, Acts of 1912, does not apply to county property. Section 4 of said act exempts from its provisions property belonging to the state, and hence, as a necessary corrolary, property belonging to the counties also; since our court has repeatedly held that counties are merely subdivisions of the state and boards of supervisors and public school trustees are merely agencies created by the state to enable it to conveniently discharge a governmental function.

Railroad Co. v. Middleton, 109 Miss. 211. Again section 25 of said act provides that no personal judgment can be rendered against the owner of property under this act but that the extent of the judgment shall only be to condemn the property improved to be sold for the purpose of paying the tax assessed against it. See section 25, chapter 260, Acts of 1912.

I do not think counsel for appellee will for a moment contend that the City of Grenada could obtain a judgment or decree condemning county property to be sold to pay said assessment, even if the act had provided for redemption as required by section 79 of the Constitution, as that would be against public policy as tending to block the orderly administration of governmental functions.

Hence it is clear that the terms of the act itself excludes from its operation county property, as well as state property, if there is any difference in the two expressions.

But even if the act did not exclude county property from its provisions in so many words, yet, it has been repeatedly held by our court that neither state nor counties are supposed to be included in any statute imposing burdens unless specially named or fairly embraced in the language used therein. Board of Supervisors of Warren Co. v. Klein, 51 Miss. 816; Branham v. Supervisors, 54 Miss. 236; Panola Co. v. Gillon, 59 Miss. 198; Redditt v. Wall, 55 So. 45.

I submit that the only way in which the county could have been bound for the payment of the costs of paving in front of its property was for the city authorities to have requested the board of supervisors to join with the city in letting the contracts for this paving in front of its property; since the statute, sections 361, 362, and 363, Code of 1906, provides the only method by which the county could legally authorize or pay for contract work where the amount exceeded fifty dollars. This the city failed to do but contented itself with following the formal provisions of said act, and not even taking the precaution of serving any personal notice of its intentions to do the paving or of the levy of this special assessment against the county, but simply gave the notices by publication provided for in said act, leaving the county authorities to find out as best they could what the city was doing in the matter, the first actual personal notice to the board of supervisors or other proper authority having been the filing of the claim against the county for the cost of said paving.

I submit therefore that there has not been and could not be any legal liability on the part of the county in this matter, and the learned circuit court erred in rendering judgment against it and this case should be reversed and suit dismissed by this court.

Cowles Horton, for appellee.

It is to be presumed that the legislature of 1912 was familiar with the case of Macon v. Patty, 57 Miss. 385, which had held that exemption from general taxes did not exempt from these special assessments; also with that line of authorities holding that exemption from state taxes did not exempt from county and levee taxes and vice versa. This being true, it was certainly plain that all property, not expressly exempted in the act except property of the United States, would be liable under its terms, and, with this knowledge in mind, it is erroneous to contend for an exemption which cannot be found in the act itself. The legislature, of course, may tax all property, except that of the United States, but for reasons of its own has seen fit to exempt property belonging to these subdivisions. At the same time, since the public policy is not always the same in all cases. (100 Miss. 338) it appears very clear to us that the purpose here was to make these subdivisions liable for its share of these special and beneficial improvements. Such a purpose, if it exists, is not at all peculiar to this state but is justified by the opinions of learned courts and writers.

Cooley says, in his work on Taxation, second edition, on page 653, that "even public property is often subject to these special assessments; there being no more reason to excuse the public from paying for such benefits than there would be to excuse from payment when property is taken under the eminent domain."

Smith tells us: "While the state may not authorize corporate authorities to levy special assessments upon property of the United States, as it would be an invasion of the rights of a distinct sovereignty, no such reason exists as between the several agencies of the state government which are subject to its control, and a county may be compelled to pay a special assessment against its courthouse for local improvements, although public property be exempt from taxation by express statute." Mun. Corp., Sec. 1236, page 1245; See, also, 28 Cyc. 1117, Note 65.

The instant question has been decided in the case next herein cited, where the property involved was a courthouse in each instance, and, as these cases discuss the question very ably and exhaustively, I shall ask the court to read them. They are: Adams County v. Quincy, 22 N.E. 624; Edwards v. Jasper County, 94 Am. St. Rep. 301. Those cases answer every contention which might be made in opposition to the opinions of Cooley and Smith that such property should not be held to be exempt, and, without prolonging this brief by quotations from them, I shall urge upon the court to examine them carefully.

The rule for which we contend applies also in the state of Louisiana, as will be seen by reference to the case of New Orleans v. Warner, 175 U.S. 120, 44 L.Ed. The cases cited by counsel are not in point, and none of them hold anything contrary to the judgment appealed from. Supervisors v. Klein, 51 Miss. 816, merely held that county warrants did not bear interest under section 2279 of the Code of 1871. Brahham v. Supervisors, 56 Miss. 236, held that a county was not liable for defects, from which injury occurred in a bridge. Panola Co. v. Gillon, 59 Miss. 198, held that county property was not liable to a mechanics' lien and the provisions in the statutes in reference to third parties were not applicable where the county was the party sought to be proceeded against.

None of them dispute, in anywise, the rule laid down in the authorities we have cited. Of course we do not claim that the courthouse could be sold for this assessment any more than it could be sold under a builder's lien. At the same time, the county is still liable, we submit, in the case at bar just to the same extent and in the same manner as it would be to a contractor building the courthouse. While judgments against the county cannot be enforced in the same way as against individuals, still those judgments are, nevertheless, enforceable in another and equally as efficient manner.

OPINION

HOLDEN, J.

The city of Grenada adopted chapter 260, Laws of 1912, and proceeded thereunder to pave a certain...