Great Southern Lumber Co. v. Jefferson Davis County

• Decision Date: 22 October 1923
• Docket Number: 23431
• Citation: 133 Miss. 229,97 So. 545
• Court: Mississippi Supreme Court
• Parties: GREAT SOUTHERN LUMBER CO. v. JEFFERSON DAVIS COUNTY et al

97 So. 545

133 Miss. 229

GREAT SOUTHERN LUMBER CO. v. JEFFERSON DAVIS COUNTY et al

No. 23431

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

1. SCHOOLS AND SCHOOL DISTRICTS. Order of board of supervisors levying school tax invalid, unless statutory petition signed by majority of qualified electors filed.

An order of the board of supervisors levying a tax for school purposes under section 3, chapter 172, Laws, of 1918, is invalid, unless it appears from the minutes of the board that the petition therefor required by the statute, signed by a majority of the qualified electors or the school district was filed with the board.

2. SCHOOLS AND SCHOOL DISTRICTS. Defense that action against county for recovery of taxes collected is tarred by an appropriation of fund must be raised by plea, and not by demurrer.

In an action to recover from the county and its sheriff and tax collector the money collected by the ax collector under an order of the county's board of supervisors levying a special school tax, which is alleged to be void, the defense that the action is barred, because of an appropriation by the County of the money sought to be recovered for the purposes for which the tax was levied, must be raised by plea and not by demurer.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Jefferson Davis county, HON. D. M GRAHAM, Judge.

Action by the Great Southern Lumber Company against Jefferson Davis County and another. From an order sustaining a demurrer to the declaration, and dismissing the action, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Mounger, Ford & Mounger, for appellant.

The levy of the tax in question was void. The authorities justify a recovery where the levy is void. See 26 R. C. L., section 410, page 454; Peyser v. Mayor, 70 N.Y. 497 (also reported in 26 Am. Rep. 624); City of Grand Rapids v. Blakely, 40 Mich. 367 (also reported in 29 Am. Rep. 539); Whitney v. City of Port Huron, 88 Mich. 268 (also reported in 26 Am. St. Rep. 291); Oakland Cemetery Assn. v. County of Ramsey, 98 Minn. 404 (also reported in 116 Am. St. Rep. 377); Johnson v. Crook County, 53. Oregon, 329 (also reported in 133 Am. St. Rep. 834); 96 American Decisions, 172; 98 American Decisions, 237; 7th L. R. A. (N. S.) 663. There are Mississippi authorities which fully cover the point. Tuttle v. Everett, 51 Miss. 27; City of Vicksburg v. Butler, 56 Miss. 72; Winona v. The Bank, 69 Miss. 663.

In attempting to make the levy in question the board of supervisors was attempting to exercise a limited and special jurisdiction. The existence of all facts necessary to confer such jurisdiction should have been made to appear from the ordinance. But, the ordinance in question which was set out in the declaration was a general ordinance and did not refer to any law or recite any facts, and did not recite the filing of the petition, nor did it refer to the petition in any way. Nor did it show that it was signed by a majority of the qualified electors of the public school district in question or that it was signed by any qualified electors. The ordinance did not recite any jurisdictional facts whatever and was therefore void. Wallace v. Tucker, 104 Miss. 83; Hinton v. Perry County, 84 Miss. 536; Craft v. De Soto County, 79 Miss. 618; Bolivar County v. Coleman, 71 Miss. 832; White v. Railroad Company, 64 Miss. 566; The Levy Commissioners v. Allan, 60 Miss. 93; Adams v. Bank of Greenwood, 60 So. 770; Evans v. Wright, 89 So. 226. The petitioners invoked chapter 172 of the Laws of 1918, including section 3, which traces through the following legislation, to-wit: originating in chapter 159 of the Laws of 1912, it was amended by chapter 197 of the Laws of 1914, and in that form appears as sections 7356, 7357, 7358, and 7359 of Hemingway's Code; and, was in turn amended by chapter 172 of the Laws of 1918, in which form it now stands. This law did not give the board of supervisors general authority to make a levy but it gave the board authority under special circumstances to make a special levy and for special purposes only (the purposes enumerated in the section), and that it was further restricted by the words, "of the school in said district." By virtue of these words a tax could not be levied in accordance with this section for supplementing salaries of teachers, or extending the school term, or for buying furniture for the school, or for the repairing of the school building, or for fuel and other incidental expenses of a school not in said district. But the school which existed in this case and which was proposed to be maintained by the taxes levied, was not located in the district. Therefore, the authorities had no right to use chapter 172 of the Laws of 1918, as authority for making the levy.

Section 7353 of Hemingway's Code (chapter 189, Laws 1914, in effect February 14, 1914), does not apply and cannot be made authority for the taxes as levied in this case, because this section applies only to school districts which contain not less than twelve square miles. The district in question contained only a fraction more than six square miles.

Section 7352 of Hemingway's Code (chapter 195, Laws of 1916, in effect April 8, 1916), cannot be relied on as authority for the tax imposed in this case, and which is complained of because this section requires that there should be a petition of a majority of the qualified electors of the district as a basis for the attempted action. The tax which can be imposed by this section is for a special purpose only, and these differ from the purposes for which the tax may be levied under section 3, chapter 172 of the Laws of 1918. There is no general law under which the levy in question could have been made. Section 4514 of the Code of 1916, the same as section 7334 of Hemingway's Code, cannot be applicable because this applies to separate school districts only, whereas the district in question is not a separate school district, but was created as a special school district, and the order creating it as set out in the declaration designates it as a "special school district." If the district was not a lawful district then there could be no lawful levy of taxes for such district regardless of every other question in the case. Thames v. B. S. Simpson. County, 87 So. 127.

Livingston & Milloy, for appellees.

Appellant's counsel cite a number of general authorities, but finally content themselves with three Mississippi authorities, to-wit: Tuttle v. Everett, 51 Miss. 27; City of Vicksburg v. Butler, 56 Miss. 72, and Winona v. Bank, 69 Miss. 663. Tuttle v. Everett, supra, supports our contention exactly. The other two Mississippi authorities are not in conflict with the Tuttle case. Lauman v. Des Moines County, 29 Iowa 310, is not in conflict. If the tax had been illegal and void and had been levied generally upon the initiative of the board of supervisors for the use and benefit of the county as a whole, if suit had been timely brought, then appellant might have recovered, but there is no case cited by appellant that would warrant a suit for the recovery of a special tax levied as this tax was levied and where the board of supervisors had nothing to do with the disbursement of the funds after the taxes had been collected.

A taxpayer cannot pay invalid taxes under protest and then recover them from the county after they have passed out of the hands of the county. Burlington & M. R. R. Co. v. Buffalo County, 14 Neb. 51, 41 N.W. 539; Price v. Lancaster County, 18 Neb. 199; 24 N.W. 705. These cases are not in conflict with Pearl River County v. Lacey Lumber Company, 86 So. 755.

The general essentials to a recovery from a municipality of taxes illegally collected are, that the tax must be void; that it must have been paid under compulsion, or what may be deemed equivalent thereto; and that it must have been received to the use of the municipality from the collecting officer. Otis v. Poole, 196 Ill. 542, 63 N.E. 1053; Lincoln v. Worcester, 8 Cush. 53; Tuttle v. Everett, 51 Miss. 27; Union Insurance Co. v. Allegany, 101 Pa. St. 250. Some authorities hold that in case taxes are collected under an illegal assessment, they cannot be recovered until the assessment is set aside. Trimmer v. Rochester, 130 N.Y. 401, 29 N.E. 746; Horn v. Town of New Lots, 83 N.Y. 100, 38 Am. Rep. 402. The appellant knew when it paid the tax in question that it was a special school tax, and, therefore, it should have appealed from the levy or, having failed to do this, it should have enjoined the collection of the taxes. There is no fund out of which the county can pay the tax sued for.

The next ground of attack on this tax levy is on the ground that it is claimed that the board of supervisors was attempting to exercise a limited and special jurisdiction and failed to state its jurisdictional...