Green v. Board of Sup'rs of Adams County

• Citation: 172 Miss. 573,161 So. 139
• Decision Date: 29 March 1935
• Docket Number: 31658
• Parties: GREEN et al. v. BOARD OF SUP'RS OF ADAMS COUNTY
• Court: United States State Supreme Court of Mississippi

161 So. 139

172 Miss. 573

GREEN et al. v. BOARD OF SUP'RS OF ADAMS COUNTY

No. 31658

Supreme Court of Mississippi

March 29, 1935

Division A

Suggestion Of Error Overruled June 10, 1935.

APPEAL from the chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Proceedings between Thomas K. Green and others and the Board of Supervisors of Adams county. From a decree, the former appeal. Reversed and dismissed.

Reversed and dismissed.

Luther A. Whittington, of Natchez, and Brunini & Hirsch, of Vicksburg, for appellants.

Appellants contend that chapter 218, Laws of Mississippi, 1934, does not confer upon the board of supervisors of Adams county any authority or power to issue bonds for any purpose therein mentioned; that by express limitation the provisions of this chapter are inapplicable to Adams county; the bonds issued, therefore, were issued without authority of law and were illegal and invalid.

The state ad valorem tax is a tax levied by the Legislature for general purposes of the state; the proceeds thereof are required to be paid by the various tax collectors into the state treasury and the moneys received from the levy of said tax can only be withdrawn from the state treasury by or through an appropriation thereof by the Legislature. The retention of said funds or any part thereof by the county in which collected would be an indirect withdrawal or appropriation from the state treasury.

Section 64 of the state Constitution.

Chapter 218 violates section 112 of the Constitution providing for equal and uniform taxation throughout the state.

Appellants contend that no jurisdiction is conferred upon the chancery court of Adams county under chapter 10, Mississippi Code of 1930, to validate the character of bonds herein proposed to be issued.

Parker v. Grenada County, 125 Miss. 617, 88 So. 172; Smith v. City of Dublin, 39 S.E. 327-30, 113 Ga. 833.

The resolution of the board did not set forth the purposes for which the bonds were to be issued.

Appellee knows, as well as does this honorable court, that the jurisdictional facts had to appear on the minutes of the supervisors of Adams county, and that that jurisdiction cannot and could not be settled by proof at the hearing. The action of the supervisors must stand or fall by its minutes.

Engle & Laub and Kennedy & Geisenberger, all of Natchez, for appellee.

Under section 170 of the state Constitution the board of supervisors is given full jurisdiction over roads, ferries and bridges, to be exercised in accordance with such regulations as the Legislature may prescribe. Under chapter 218, Laws of 1934, there was a prescription by the Legislature of regulations for the board of supervisors in exercising their jurisdiction over ferries.

The universal rule, which likewise obtains in Mississippi, is that a statute shall not be declared unconstitutional unless it plainly conflicts with a provision of the fundamental law. Such conflicts are not to be implied.

Hart v. State, 87 Miss. 171, 39 So. 523, 112 A. S. R. 437; State v. Henry, 87 Miss. 125, 40 So. 152; Mississippi, etc., Railroad v. Crawford, 99 Miss. 679, 55 So. 596.

The retention of tax money for the purpose of defraying county bonds cannot by any stretch of the imagination be made to appear as an appropriation of the funds retained, nor is the grant to Adams county of the right to retain the proceeds of the two mill levy the first instance of its kind in the law of our state.

An objection of appellants is that the resolution of the board of supervisors does not provide any means for the payment of the bonds issued, either principal or interest. The plain language of the act which directs the levy of two mills on all the taxable property in the county is the answer to this argument of the appellants.

The objectors introduced not one word of testimony to show that any objector was a taxpayer of the county.

Section 313, Code of 1930; State v. Gulf M. & N. R. Co., 138 Miss. 70, 104 So. 689; Stingily v. City of Jackson, 140 Miss. 19, 104 So. 465; Miller v. Lamar Life Ins. Co., 158 Miss. 753, 131 So. 282; Clark v. State, 169 Miss. 369, 152 So. 820.

Argued orally by J. B. Brunini and L. A. Whittington, for appellant, and by S. B. Laub and W. A. Geisenberger, for appellee.

OPINION

Cook, J.

This is an appeal from a decree of the chancery court of Adams county validating a proposed series of bonds, amounting to two hundred thousand dollars, to be issued for ferry purposes, under the provisions of chapter 218, Laws 1934, payable only out of the proceeds of the two-mill ad valorem tax levied by section 1 of said act.

Section 1 of the said act of 1934 levies an ad valorem tax of two mills, and authorizes the retention of the receipts of the said two-mill levy out of receipts from the state ad valorem levy, in certain counties therein designated by description, the provisions of the said section being, in part, as follows:

"Be it enacted by the Legislature of the state of Mississippi, That an ad valorem tax of two mills on each dollar of the total assessed valuation of all the taxable property in each county or counties in the state of Mississippi, in which there is located a city or town upon any river or waters which river or water separate two United States highways, which highways are separated by such water but are otherwise connected by the streets of a municipality in said county connecting said highways, except for said water, be and the same is hereby levied on all said taxable property in said county, in or for each year in which the principal of or interest on any bonds or other obligations issued by any municipality or county pursuant to this act becomes due."

In electing to come under the provisions of the said act of 1934, and providing for the issuance of bonds thereunder, the board of supervisors adopted a resolution purporting to find the jurisdictional facts necessary to enable Adams county to avail itself of the provisions of the act, which reads, in part, as follows:

"Whereas United States Highway 61 passes through Adams county, Mississippi, and the city of Natchez, in which said city there are streets running from said U.S. Highway 61 down to the Mississippi river and to a place on the Mississippi river in the city of Natchez where there is now located and has been for many years established a county ferry; and,

"Whereas there is in the Parish of Concordia and in the town of Vidalia, United States Highway 65, which U.S....