City of Holly Springs v. Marshall County

• Decision Date: 28 April 1913
• Docket Number: 16,450
• Citation: 104 Miss. 752,61 So. 703
• Court: Mississippi Supreme Court
• Parties: CITY OF HOLLY SPRINGS v. MARSHALL COUNTY

61 So. 703

104 Miss. 752

CITY OF HOLLY SPRINGS v. MARSHALL COUNTY

No. 16,450

Supreme Court of Mississippi

April 28, 1913

APPEAL from the circuit court of Marshall county, HON. H. K. MAHON Judge.

Suit by the city of Holly Springs against Marshall county. From a judgment for defendant, plaintiff appeals.

This suit was instituted for the recovery by the city from the county of one-half of the ad valorem taxes collected by the county treasurer on property within the city limits. Section 4469 of the Code of 1906 provides that: "One half of the ad valorem [road] tax collected on property within a municipality shall be paid over to the treasurer thereof, in cases where the streets are worked at the expense of the municipal treasury, or worked by municipal authority, and all other ad valorem taxes collected shall be paid to the county treasurer, and used by the board of supervisors as a general road fund within such portion of the county as is worked by contract."

Reversed.

Smith &amp Totten, and Whitfield, McNeil & Whitfield, for appellant.

We wish to point out to the court that the entire argument of counsel for appellee, in the first place, ignores completely a portion of the agreed statement of facts by which the courts will try this case and decide the issue between the contending parties. The part of the statement of facts which he ignores is the beginning of part 4 of the statement of facts, in the following words: "That in addition to the eight days service or commutation tax provided for in said section 4469 of said Code the board of supervisors of said county levied an ad valorem tax of two mills on the dollar on all taxable property of the said county of Marshall for the purpose of raising funds to defray the expenses incurred in the working of all its public roads."

This statement in the agreed statement of facts certainly precludes counsel for appellee from arguing that Marshall county did not collect a commutation tax as provided for in sec. 4469 of the Code of 1906, and, furthermore, it certainly precludes him from arguing that the ad valorem tax was not levied in accordance with sec. 4469 of the Code of 1906. This must necessarily have been true for the very simple and conclusive reason that ch. 150 of the Laws of 1910 nowhere fixes any limitation for the ad valorem tax. It does not authorize one mill, two mills, three mills, or any number of mills on the dollar, and, in order to find any complete authority, you must read into the ch. 150 of the Laws of 1910, the provision of 4469 of the Code of 1906, which authorizes the board of supervisors to levy an ad valorem tax "not to exceed three mills on the dollar in any one year."

The whole argument of counsel for apepllee is that ch. 150 of the Laws of 1910 is a complete and independent, separate, and distinct law for the working of public roads, and also for the raising of funds for working said roads, and it must, and can, look to no other law or part of a law to make it entire and complete.

If his argument is sound, let us ask the court and counsel for appellee, how much ad valorem tax is said board of supervisors of Marshall county authorized to levy and collect under ch. 150 of the Laws of 1910 exclusively? Counsel and the court will see at one reading of ch. 150 that it does not anywhere undertake to fix the limit of the ad valorem tax and if, therefore, this law is complete in itself, the board of supervisors, according to counsel for appellee's argument, would have a right to levy an ad valorem tax of one hundred cents on the dollar, instead of a tax of two mills on the dollar, for any one year.

The fact that this act does not state the limit of the ad valorem tax, but does state that this act shall not repeal any other act or alter any other method of working public roads, is conclusive, alone, of the fact that the construction put upon this ch. 150 by this court in the case of Weston v. Hancock county, 54 So. 307, the court speaking through Chief Justice MAYES with Justice SMITH concurring, to the effect that the Laws of 1910 preserves all the present laws on the subject of roads, simply creating another way in which the roads could be worked, is thoroughly sound, and the only legal construction that could be placed upon the act, especially, in view of its failure to limit the ad valorem tax to three mills as it is limited in sec. 4469 of the Code of 1906.

This fact, together with the fact already pointed out, that the agreed statement of facts expressly itself refers to sec. 4469, and states that the board levied an ad valorem tax of two mills on the dollar in addition to the eight days service or commutation tax provided for in sec. 4469 of the Code, renders it certain and conclusive that the construction urged upon the court by counsel for appellee cannot be maintained with any reason or logic at all.

We, therefore, most respectfully submit that this case must be reversed and judgment entered here for appellant for the sum of eight hundred and ninety-six dollars and seventy-one cents.

Lester G. Fant, for appellee.

Attorneys for appellant in their brief state that chapter 150 is silent as to the disbursement of the tax raised, this being the case, what authority has a board not working its road under the provisions of the Code of 1906 to disburse this tax in any way different from the disbursement of the other taxes raised for county purposes. We contend therefore that as chapter 150 is a new and separate way, that it is independent of all old ways of working the road; that the provisions as to the disbursement of the road tax in one of the old ways of working the road, cannot possibly give any authority to a board not working under that method to disburse the moneys of the county in a manner not authorized by law under which they are operating. If it was the intention of the legislature of the state of Mississippi to have section 4469 apply to counties working under chapter 150, page 145 of the Laws of 1910, why did they go to the foolish expedient of providing for the method of collecting the tax without any reference to the sections of the Code of 1906 instead of stating that the taxes should be levied, collected and disbursed, in compliance with section 4469. It may be argued that there is no reason for the disbursement provided for in section 4469, Code 1906, that would not apply when the road was being worked under the new method. Our reply to that is that this court has nothing to do with the reasons, or lack of reasons, for the acts of the co-ordinate branch of the legislature of the state of Mississippi. This was decided in case of Wallace v. Cox, 100 Miss. 525.

Our contention, therefore, is that as we are working under chapter 150, we must look to said section for all the law connected, not only with the assessment and collection of the road tax, but for the disbursement of the same; and the reason for the board not making the appropriation asked for is, that the state legislature either by oversight, or by intention, failed to give the authority, and whether it was by oversight or by intention, the effect of the failure to give authority is the same; and that said board consequently has no authority to make the appropriation, not because there is a repeal by implication of section 4469, but because while section 4469 is not repealed and has full force and effect while the county is working its roads under the provisions of said section, that so far as a county that is not working its road under the provisions of that section, it is in effect repealed, null and void, and is exactly as far as that county is concerned, as though it never had been enacted by the legislature of the state.

In the case of Swann v. Buck reported in vol. 40 Miss. Rep. at pp. 269 and 308, we find this language: "It is true that repeals by implication are not favored by the court; yet, it is a well settled rule of interpretation that although the subsequent be not repugnant in all its provisions to a prior one, yet if the late statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals the original act." Citing Sedgwick on Statute and Constiutional Law, p. 124; Davis v. Fairbairn, 3 How. U. S. R., 636; Dexter & Limerick Bank Road Company v. Allen, 15 Barber, 135.

We contend that as chapter 150 provided the only method of collecting and disbursing the road tax for counties operating under said chapter, that so far as these counties were concerned the provisions of section 4469 of the Code of 1906, was in effect repealed; consequently, the board of supervisors of Marshall county acting under chapter 150 of the Laws of 1910, have no-authority to pay out the money claimed by the city of Holly Springs, and that this case should be affirmed.

Argued orally by G. Q. Whitfield, for appellant, and L. G. Fant for appellee.

OPINION

REED, J.

The city of Holly Springs claims one-half of the amount of ad valorem taxes collected on property within the city for the year 1911 by the tax collector of Marshall county, in accordance with the provisions of section 4469 of the Code of 1906. The tax collector refused to pay the amount of taxes so claimed to the treasurer of the city, and paid the same to the treasurer of Marshall county, and the county treasurer also refused to pay over the amount to the city. The streets of Holly Springs are worked under municipal authority and at the expense of the city and were so worked in 1911. The following relative to the working of the public roads in Marshall county and the raising of funds for that purpose since 1905 is taken from the agreed statement of facts in this case:

"That on the 6th day of June, 1905, the said county of Marshall, by an order of its board of...