City of Gulfport v. Todd

• Decision Date: 08 June 1908
• Docket Number: 13,375
• Court: Mississippi Supreme Court
• Parties: CITY OF GULFPORT v. WILLIAM A. TODD

46 So. 541

92 Miss. 428

CITY OF GULFPORT v. WILLIAM A. TODD

No. 13,375

Supreme Court of Mississippi

June 8, 1908

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

Todd appellee, was complainant in the court below; the city of Gulfport, appellant, was defendant there. From a decree favorable to complainant the defendant appealed to the supreme court.

The city of Gulfport, a municipal corporation operating under the chapter on municipalities of the Code 1892 (sections 2911-3039), and being in existence before the 1st day of February, 1906, on March 9, 1906, passed proper ordinances preliminary to extending its corporate limits. On April 12 1906, the final ordinance extending the corporate limits was passed and became operative. Later during the year 1906, at the time and in the manner provided by law, the municipality made its annual assessment for taxes on all lands then within the corporate limits, and fixed a levy thereon for municipal purposes. Complainant, appellee, was the owner of certain land brought into the corporate limits by the extension on April 12, 1906. Taxes for the year 1906 were levied on complainant's land; he refused to pay them and filed a bill for an injunction to restrain the municipal tax collector. The defendant demurred to the bill and moved to dissolve the injunction, but the court below overruled both and, defendant declining to answer or plead further, a final decree was rendered making the injunction perpetual. Appellee contended that his property was not liable for taxation to the city for the fiscal year 1906, because it was not within the city limits on the 1st day of February, and, further because the city had no right to collect taxes attempted to be collected from him, for the reason that the assessment was not equal and uniform, as required by the constitution of the state, since certain railroads and other public service corporations (assessed by the state railroad commission) were not required to pay taxes to the municipality on property brought into the corporate limits by said ordinance of April 12th.

Code 1892, § 3748, provides as follows: "All taxable property brought into the state or acquired or held by any person before the 1st day of February shall be assessed, and taxes thereon paid for the current year." Code 1892, § 3771, provides that "lands shall be assessed between the 1st day of February and the 1st day of July." Code 1892, § 2926, gives the municipality the right to "levy and collect taxes upon all the real, mixed and personal property within the corporate limits, taxable according to the laws of the state, the valuation of such property to be taken from the assessment rolls of the county." Code 1892, § 3018, provides that "the municipal assessment of property for taxation shall be made by the clerk or tax collector, by copying from the county assessment rolls that portion thereof which embraces property or persons within the corporate limits; the copy may be made at any time after the assessment rolls are approved." Code 1892, § 3020, provides that: "The mayor and board of aldermen shall levy the municipal taxes at the regular meeting in September of each year, or, in case of failure so to do, at any other regular meeting thereafter."

Affirmed.

John L. Heiss and McWillie & Thompson, for appellant

In March, 1906, Code 1892, § 2912a, gave, and now Code 1906, § 3301, gives, the city ample power to enlarge its boundaries and extend its territorial limits by proceeding in the manner designated in the statute. That the city had the power of enlarging its limits cannot be disputed or denied, and the existence of this power was not without effect upon the contiguous territory which was subject at any time to be taken into the city; and there was no legal wrong to it, or surprise upon its inhabitants when the power was exercised.

It will be well to bear in mind that under our statutes all state, county and municipal obligations are payable, and theoretically at least are paid in cash; that the taxes of 1906, levied in September of said year or afterwards and collected between the first of October, 1906, and March following, would almost necessarily be applied to municipal expenditures made after their collection; and this is to a very great extent, if not wholly, true. It follows that territory brought within municipal limits in April gets all the benefits of the taxes of the current year, to the same extent as if brought into the limits in January or during any preceding year.

When the territory was taken into the city the municipality at once assumed all of the obligations of a municipal corporation in respect to it; the city at once came under duty to maintain its roads or streets, including bridges, to furnish water and lights to its inhabitants and to discharge other municipal obligations; there was no postponement of these duties until a future day when persons residing and property situate in the annexed territory should begin to pay municipal taxes.

In this case the city of Gulfport passed the ordinance, March 9, 1906, proposing to extend its corporate limits, and on April 12, 1906, the ordinance bringing into the city the lands now in controversy became operative, having been duly published and no appeal having been prosecuted therefrom.

The city up to and after April 12th, 1906, as before, had full power, Code 1892, §§ 2925, 2926, "to levy and collect taxes upon all the real, mixed and personal property within the corporate limits, taxable according to the laws of the state, the valuation of such property to be taken from the assessment rolls of the county."

On this statute we propound two inquiries:

First. When shall it tax?

Of course the section of the code from which the quotation is taken must be construed along with the other statutory provisions on the subject, and turning to Code 1892, § 3018, we find that "The municipal assessment of property for taxation shall be made by the clerk or tax collector, by copying from the county assessment rolls that portion thereof within the corporate limits; the copy may be made at any time after the assessment rolls are approved."

The county assessment rolls are approved (Code 1892, § 3788) on the first Monday of August and the assessment therefore for city taxes is to be made after the first Monday of August.

The levy is to be made at the first regular meeting of the mayor and board of aldermen (Code 1892, § 3020), in September.

The city has power to tax in August and September, to assess in August and to levy the tax in September or afterwards. It had this power in 1906.

Second. What property is to be assessed for municipal taxes and upon what property is the municipal levy to be laid

The statute itself answers both phases of the inquiry. Under Code 1892, §§ 3018, 3788, the municipal assessments are to be made after the first Monday in August and the property to be assessed is that then "within the corporate limits." At what date? Why of course when the power is exercised, and we have seen that it is to be exercised in August so far as concerns the assessment of the property, in September or afterwards so far as concerns the levy of the taxes, and the collecting of course is to be done still later.

The following propositions are predicated of statutory provisions:

A. The assessment is to be made in August and is to be of all taxable property (then) within the corporate limits.

B. The levy is to be made in September or afterwards, and is to be laid upon the assessed property; of course, embracing all taxable property (then) "within the corporate limits."

C. The taxes are to be collected later on, after being so levied upon all property within the corporate limits in September.

Can exceptions be engrafted on these statutory provisions; can they be construed away for the benefit of the appellee?

The court below and appellee's counsel put too much stress on that part of Code 1899, § 2746, which reads thus "and all taxes assessed shall be a lion upon and bind the property assessed from the first day of February of the year in which the assessments shall be made," etc.

This has nothing to do, in our judgment, with the case at bar; we are entirely willing for the taxes, the collection of which is enjoined, to be treated as having been a lien on the property from the first day of February, 1906, but collection is not dependent thereon. It is not more difficult to conceive of the coming into existence of a lien on property subject to be brought into the city limits than upon property already within such limits; and the retroactive effect of a levy of taxes made in November, upon an assessment made in August, carrying it by relation back to February is no more shocking when applied to property brought into the city in April than in its application to that brought within corporate limits in January.

There seems to be an idea abroad, at least there are evidences of record showing its manifestation in the court below, that the statute fixing the lien of taxes from February the first and Code 1892, § 3748, providing that taxable property brought into the state or acquired or held by any person before the first day of February shall be assessed and taxes thereon paid for the current year, carve out exceptions to the statute directing municipal assessments and tax levies to be made in August and September and to be on all property then within municipal limits. Such is not the case. The power to tax, the jurisdiction, is not as of any previous special date, such as the first of February, fixed arbitrarily as the date from which the tax lien is to be operative; but the power to tax, the jurisdiction, is as of the time when it is to be exercised. If the property be...