Gully, State Tax Collector v. McClellan

• Decision Date: 19 March 1934
• Docket Number: 31118
• Citation: 153 So. 524,170 Miss. 405
• Court: Mississippi Supreme Court
• Parties: GULLY, STATE TAX COLLECTOR, v. MCCLELLAN et al

153 So. 524

170 Miss. 405

GULLY, STATE TAX COLLECTOR, v. MCCLELLAN et al

No. 31118

Supreme Court of Mississippi

March 19, 1934

Division B

1 COUNTIES.

Loan of sixteenth section township funds, made by county supervisors being for purpose authorized by law, held not within statute making supervisors liable for illegal allowances (Code 1930 section 259).

2 COUNTIES.

Loan by board of supervisors of sixteenth section township funds to individualize executing trust deed held not invalid for failure to observe proceedings required in statute (Code 1930, section 6764).

3. COUNTIES.

County supervisors, in making loan of sixteenth section township funds, were required to exercise discretion, and there was no personal liability merely because statutory directions were not followed in making loan (Code 1930, section 6764).

4. COUNTIES.

County supervisors, not following statutory directions in making loan of sixteenth section township funds, would only be personally liable on official bonds if it developed that security was insufficient to bring amount of loan with interest (Code 1930, section 6764).

5. COUNTIES.

Board of supervisors may extend loan of sixteenth section township funds where security is adequate, since object of funds is to produce revenue for schools (Code 1930, section 6764).

6. COUNTIES.

Statute respecting loan by county supervisors of sixteenth section township funds imposes its own liability for violating statute, and statute regarding supervisors' bonds does not apply where supervisors do not comply with statutory directions (Code 1930, sections 197, 6764).

7. COUNTIES.

County board of supervisors not making loan of sixteenth section township funds would not be liable for failure to collect funds loaned by predecessors in view of statute providing for collection by superintendent of education (Code 1930, sections 6764, 6770).

HON. R. E. JACKSON, Chancellor.

APPEAL from chancery court of Leflore county, HON. R. E. JACKSON, Chancellor.

Suit by J. B. Gully, state tax collector, against Pearl McClellan and others. From the action of the court in sustaining demurrers, plaintiff appeals. Affirmed.

Affirmed.

Barbour & Henry, of Yazoo City, for appellant.

The statutes involved are all from the Mississippi Code of 1930 and will hereafter be referred to by number only, being sections 197, 259 and 2888, which three sections enact the liability of boards of supervisors on their bonds; sections 6986, 6988 and 6996 outlining the powers, duties and limitations of the state tax collector; sections 247 and 5987 authorizing supervisors to make loans out of sinking funds and section 6764 authorizing them to make loans out of sixteenth section funds.

Even though the court should hold the word "security" in the bond to make the board indemnitors it would not hold that the board is improperly joined in at this time. When the board commits an illegal act such as making a loan contrary to the statute or appropriating money to an object not authorized by law, they thereby breach their bond and lay themselves liable for the consequences which follow.

Dixon v. U. S. F. & G. Co., 117 So. 245; Gully v. Copiah County, 147 So. 300.

Without conceding that the loans must be appropriations to objects not authorized by law, in order for the state tax collector to recover, we say unquestionably that they are allowances to objects not authorized by law, and Miller v. Gore, 146 Miss. 327, is our authority therefor.

Miller v. Tucker, 142 Miss. 146; Tallahatchie County v. Harrison, 75 Miss. 744.

The board were not exercising judicial discretion in completely ignoring the law and even if it should be considered that they were exercising judicial discretion they have no authority to abrogate the provision of the law governing the amounts they may lend on property of a certain value, and of having the property appraised.

Paxton v. Arthur, 60 Miss. 830; Paxton v. Baum, 59 Miss. 531.

The general law is that boards of supervisors speak only through their minutes and there is no presumption that they acted legally. Even without the express statutes, interpreted in Miller v. Gore and Miller v. Tucker, the presumption is that all these loans are illegal because the jurisdictional facts to make them legal are not recited in the supervisors' minutes.

Smith County v. Mangum, 127 Miss. 192; Tallahatchie v. Yocona, 148 Miss. 182; Amite County v. Mills, 138 Miss. 322; Smith et al. v. Board of Supervisors, Tallahatchie County, 124 Miss. 36; McPherson v. Richards, 134 Miss. 282; Supervisors Harrison County v. Gully, 122 Miss. 46; Russell v. Copiah County, 153 Miss. 459; Board of Supervisors v. Snellgrove, 103 Miss. 898.

All defendants are liable even if these loans are not classified as objects not authorized by law.

Sections 4738 and 6986, Code of 1930; Gully v. Copiah County, 147 So. 300; Miller v. Tucker, 142 Miss. 146.

The case of Gully v. Copiah. County, 147 So. 300, holds that section 6986 of the Laws of 1930 authorizes the state tax collector to do all acts which were authorized by the Code of 1906, section 4738, which section includes the words "and shall have a right of action and may sue at law or in equity in all such cases where the . . . county . . . has the right of action or may sue." These words do not actually appear in the Code of 1930 but by this decision it is held that section 6986 has the same meaning.

Walton v. Colmer, 147 So. 331.

The court has also held that the state tax collector has the same rights as the district attorney.

Greaves v. Hinds County, 145 So. 900; West Feliciana Railroad Co. v. Stockett, 21 Miss. 395; Garrett v. Baumont, 24 Miss. 377; Boyd v. Barringer, 23 Miss. 269; Murray v. Gibson, 15 Howard 421, 14 L.Ed. 755.

Maynard, FitzGerald & Venable, of Clarksdale, for appellees.

The appropriations were to objects authorized by law.

Paxton v. Baum, 59 Miss. 531; Howe v. State, 53 Miss. 57; Brown v. Reece, 129 Miss. 755; National Surety Company v. Miller, 155 Miss. 115; Miller v. Tucker, 142 Miss. 146.

The appropriations being to objects authorized by law, there is no liability on either the lending or subsequent boards.

Miller v. Tucker, 142 Miss. 146; Paxton v. Baum, 59 Miss. 531.

The holding of Miller v. Tucker, decided November 2, 1925, is reinforced as a precedent by the fact that since that decision the statutes involved and receiving the construction, have been reenacted by the legislature in the Code of 1930, without change.

It is settled in this state that where the supreme court has construed a statute and it is reenacted afterwards by the legislature without material change, the interpretation or construction given by the court is adopted by the legislature and becomes a part of the reenacted statute.

Burk v. Moody, 141 Miss. 370, 378; Wamack v. Central Lbr. Co., 131 Miss. 201; Henry v. Henderson, 103 Miss. 48; Haner v. Yazoo Delta Lbr. Co., 100 Miss. 349; White v. I. C. R. Co., 99 Miss. 651; Shotwell v. Covington, 69 Miss. 735; Hoy v. Hoy, 93 Miss. 732, 17 Ann. Cas. 1137, 25 L. R. A. (N. S.) 182, 136 A. S. R. 548.

If the rule of section 6764, applicable to the loan of sixteenth section funds, is by construction held applicable to the loan of township, county and sinking funds, the bills cannot be sustained because it appears that no cause of action has yet arisen.

Sturges v. Bank of Circleville, 11 Ohio St. 153, 78 A. D. 296; Tucker v. Hoppack, 6 Wall. (U. S.) 94; Hay v. Hansborough, Free. Ch. 533; Dixon v. U. S. F. & G. Co., 117 So. 245; Pierce v. Merrill, 128 Colo. 464, 61 P. 64; Cowles v. Pick, 55 Conn. 251, 3 A. S. R. 44; Jenkins v. Wilkinson, 107 N.E. 707, 22 A. S. R. 911; Cowan v. Roberts, 134 N.C. 415, 101 A. S. R. 845; Bebee v. Kirkpatrick, 321 Ill. 612, 47 A. S. R. 891; Cobb v. Vaughn, 141 Va. 100, 43 A. L. R. 177; New York Securities Co. v. Ins. Co., 73 F. 537; Allen v. Rundle, 50 Conn. 9, 47 A. R. 599; Duran v. Bowen, 73 Iowa 573, 25 N.W. 644; Corpus Juris, Guaranty, section 123; Baruche v. Loutitt, 104 Colo. 230, 37 P. 902; Aldrich v. Chubb, 35 Mich. 350; Dewey v. Clarke Inv. Co., 48 Minn. 130, 31 A. S. R. 623; Dutton v. Pyle, 195 Pa. 8, 45 A. 429; 43 A. S. R. 177; 31 A. S. R. 623; Edwards v. Gaulding, 38 Miss. 118; Holiman v. Bennett, 44; Miss. 322.

Where judicial decisions may fairly be presumed to have entered into the business transactions of a country and to have been acted upon as a rule of contract or property, it is the duty of the court to adhere to such decision --without regard to how it might be inclined to decide if the question was new.

15 C. J., Courts, sec. 342, and note 41; Robertson v. Puffer Mfg. Co., 112 Miss. 890; Becker v. Bank, 112 Miss. 819; Forest, etc., Co. v. Buckley, 107 Miss. 897; Webb v. R. R. Co., 105 Miss. 175; Lombard v. Lombard, 57 Miss. 171; Boon v. Bowers, 30 Miss. 246; Flannery v. Givens, 21 Ky. L. 705, 52 S.W. 962.

The tax collector is without authority to bring suits against either lending or subsequent boards.

The tax collector has only such authority as is conferred by statute.

Miller v. Coahoma County, 157 Miss. 404; Sections 6986 and 6988, Code of 1930; Sections 4738 and 7056, Hemingway's 1917 Code.

The liability, if any, being for consequential damages, the bills cannot be sustained because they do not show that the alleged delicts can or will cause damage, or how much the damage or loss will be.

Clarke v. Miller, 142 Miss. 123.

Even though it could be held that the lending boards made appropriations to objects not authorized by law and the bills could be sustained against them, they could not be sustained against subsequent boards because they made no appropriations, but their delict, if any, consisted in failing to collect a chose in action.

Miller v. Gore,...