City of Okolona v. Chickasaw County

• Decision Date: 19 November 1934
• Docket Number: 31424
• Citation: 157 So. 690,171 Miss. 424
• Court: Mississippi Supreme Court
• Parties: CITY OF OKOLONA v. CHICKASAW COUNTY

157 So. 690

171 Miss. 424

CITY OF OKOLONA v. CHICKASAW COUNTY

No. 31424

Supreme Court of Mississippi

November 19, 1934

Division B

1. MUNICIPAL CORPORATIONS.

Where record of called meeting of city council failed to show that notice was served on two councilmen or that such councilmen were present, resolution passed at such meeting, claiming road taxes from county, was invalid (Laws 1920, chapter 232).

2 HIGHWAYS.

Municipality prior to adoption of Code 1930, before entitled to claim one-half of road taxes from county, was required to pass valid resolution declaring such intention and to formally notify county board of supervisors thereof (Laws 1920 chapter 232).

3. HIGHWAYS.

Resolution and notice by city, prior to adoption of Code 1930, claiming one half of road taxes collected by county, have no retroactive effect, and, before passage of resolution and service of notice, no road taxes became due municipality (Laws 1920, chapter 232).

4. HIGHWAYS.

Failure of municipality to properly pass resolution claiming onehalf of road taxes and to properly give notice thereof to county board of supervisors held not affected or aided by statute limiting right of recovery by municipalities which passed resolutions, to funds not otherwise appropriated or expended by county (Laws 1920, chapter 232; Laws 1928, chapter 129).

5. HIGHWAYS.

Prior to adoption of Code 1930, that is, from April 16, 1928, to November 1, 1930, right of municipality to recover one-half of road taxes from county remains subject to requirement that resolution be passed and notice thereof duly served (Laws 1920, chapter 232; Laws 1928, chapter 129; Code 1930, sec. 6418).

6. HIGHWAYS.

Municipality, before entitled to recover one-half of road taxes collected by county prior to adoption of Code 1930, must have previously passed and served valid resolution declaring desire to claim such taxes, and, as to period previous to April 16, 1928, funds out of which recovery could be had must have remained unexpended and unappropriated, but not as to those subsequent to that date (Laws 1920, chapter 232; Laws 1928, chapter 129; Code 1930, sec. 6418).

7. HIGHWAYS.

After adoption of Code 1930, municipality is not required to pass resolution or give notice thereof as condition precedent to recovery from county of one-half of road taxes collected by county (Code 1930, sec. 6418).

8. HIGHWAYS.

Where county made payments of share of road taxes to municipality, and, subsequently, it was discovered that resolution claiming such taxes was improperly passed, county held, nevertheless, not entitled to recover back moneys paid over to city under invalid resolution (Laws 1920, chapter 232).

HON. THOS. E. PEGRAM, Judge.

APPEAL from the circuit court of Chickasaw county HON. THOS. E. PEGRAM, Judge.

Suit by the City of Okolona against Chickasaw county. From the judgment rendered, both plaintiff and the defendant appeal. Judgment affirmed.

Affirmed on direct and on cross appeal.

R. H. Knox, of Jackson, for appellant.

Thos. L. Haman and H. B. Abernethy, both of Houston, for appellee.

Briefs of counsel not found.

OPINION

Griffith, J.

On June 3, 1924, the city, at a called meeting of its governing board, passed a resolution notifying the board of supervisors of the county that the municipality would, under chapter 232, Laws 1920, claim its one-half of all road taxes collected therein, and the resolution was duly served on the board of supervisors. Recognition was accorded to this resolution by the board of supervisors, and for all the years thereafter payments were annually made by the county to the municipality out of said road taxes; these payments amounting in the aggregate to about six thousand five hundred dollars. Some time after the adoption of the Code of 1930, the city had an audit made of the years from 1926 to 1931, inclusive, and discovered, as alleged, that the county had failed fully to account to it, and was short for each of said years, except 1931, and in the aggregate for the entire period of about thirteen thousand five hundred dollars. Demand was made on the county for this balance, the demand was refused, and the city sued.

Thereupon the county began to do some investigating, and it was discovered that the record of the called meeting of the city council, at which the resolution above mentioned was passed, failed to show that notice of the meeting was served on two of the councilmen and failed to show that these two were present; and the county defended the suit as to the taxes collected previous to the Code of 1930 on the ground that no valid resolution had ever been passed by the city; and, as against the taxes collected since the Code, the county sought to offset the payments made by it to the municipality previous to the Code on the asserted ground that these payments had been illegally made and should be recovered back, and the county went further, and, by counterclaim, demanded judgment against the city for the recovery back of a further amount of about four thousand three hundred dollars.

The purported resolution was invalid. Wilson v. City of Lexington, 153 Miss. 212, 121 So. 859; Kidder v. McClanahan, 126 Miss. 179, 88 So. 508. Consequently the court disallowed any of the amounts demanded by the city for the years previous to the Code of 1930, but sustained the claim of the city for the balance of about one thousand five hundred dollars collected since the Code, which amount is admitted by the county to be correct and to be due unless the county is entitled to its stated offset. The court denied the asserted offset of the county, and denied its demand to recover back the payments made by it to the city for the years before the Code; and both sides have appealed.

The city argues that, although its resolution, passed as before stated, was technically invalid, it was given recognition as valid throughout all the years mentioned without any question, and that the county should not now be permitted to question it; and the city urges also that subsequent statutes, particularly section 6418, Code 1930, are sufficient to save the entire case of the city. Without pursuing all the arguments submitted on this feature of the case and because this entire subject has been so frequently heretofore dealt with by this court, we shall now do no more than to make, in response to the arguments submitted, the following resume:

1. In order that a municipality, under chapter 232, Laws 1920, or any subsequent law up to the time of the adoption of the Code of 1930, could be entitled to one-half the taxes collected by the county for road purposes on property within the municipality, it was necessary as a condition precedent that the municipality (a) pass a valid resolution declaring its desire and purpose to claim the stated one-half, and (b) formally notify the board of supervisors of the passage of that resolution. Such a resolution and notice have no retroactive effect, so that up to the time and before the passage and service of notice of such a resolution no road taxes are due, or can be made to become due, to the municipality by the county.

2. Chapter 129, Laws 1928, approved April 16, 1928, did not and does not operate in any respect whatever to aid a municipality which had not theretofore, and which has not since, passed and served the resolution mentioned in the foregoing paragraph. On the contrary, the effect of chapter 129, Laws 1928, was to limit the right of recovery, by those municipalities which had previously passed and served resolutions, but which had not received their one-half of the road taxes, to such of the funds as had not theretofore been otherwise appropriated or expended by the county.

3. For the years following the passage of chapter 129, Laws 1928, up to the adoption of the Code of 1930, that is to, say, from April 16, 1928, to November 1, 1930, the right of recovery by the municipality still remained subject to the requirement, as theretofore, that for those years a resolution and notice were necessary to have been passed and served under chapter 232, Laws 1920, as stated in paragraph 1. If such a resolution was adopted and served before the passage of chapter 129, Laws 1928, a new resolution and notice were not necessary, but it was necessary that it be done at some time either before or after chapter 129, Laws 1928, and when done it had no retroactive effect, as has already been mentioned.

4. Under section 6418, Code 1930, the only recoveries authorized are those to which the municipality was entitled under previous laws, and to be so entitled the municipality must show its right under each of the three foregoing paragraphs; that is to say, it must have previously validly passed and served the required resolution, and as to the period previous to April 16, 1928, the date of the passage of chapter 129, Laws 1928, the funds out of which recovery is sought must have remained unexpended and unappropriated, but not as to those subsequent to April 16, 1928. And the municipality must make a new application, under said section 6418, whatever it may have previously done by way of application.

5. Since the adoption of the Code of 1930, and for all taxes collected for road purposes since November 1, 1930, no resolution or notice is necessary.

The question whether a county may recover back the payments made upon order of the board of supervisors, to third persons not members of the board, which the county was not legally bound to pay, although the board, in ordering the payment, was acting within the scope of its authority and for full actual consideration, has not often arisen in this state; and no case is called to our attention in which this court has...