Gully v. Board of Sup'rs of Copiah County

• Decision Date: 20 March 1933
• Docket Number: 30373
• Citation: 147 So. 300,167 Miss. 562
• Parties: GULLY, STATE TAX COLLECTOR, v. BOARD OF SUP'RS OF COPIAH COUNTY
• Court: Mississippi Supreme Court

147 So. 300

167 Miss. 562

GULLY, STATE TAX COLLECTOR, v. BOARD OF SUP'RS OF COPIAH COUNTY

No. 30373

Supreme Court of Mississippi

March 20, 1933

Division A

1 TAXATION. State tax collector could sue to recover for use of municipalities one-half of ad valorem road taxes collected by county (Laws 1920, chapter 232, sections 1, 2; Laws 1928 chapter 129, section 3; Code 1930, sections 6417, 6418, 6986).

State tax collector could bring such action since one-half of the ad valorem road taxes collected by the county and which it was obligated to pay to the municipalities therein by virtue of Laws 1920, chapter 232, sections 1, 2; Laws 1928, chapter 129, section 3; Code 1930, sections 6417, 6418, was a "past due obligation" within section 6986, which authorizes the state tax collector to sue for all past due obligations and indebtedness of any character due and owing to municipalities, except penalties for the violation of the anti-trust laws, and except income and inheritance taxes.

2 TAXATION. Declaration to recover one-half of ad valorem road taxes collected by county prior to passage of law anthorizing payment of such taxes due municipalities under previous law, must allege that taxes have not been paid to municipalities and have not been otherwise appropriated or expended (Laws 1928, chapter 129, section 3).

No such allegation is necessary as to taxes collected after the passage of Laws 1928, chapter 129, section 3, which provides that where any municipality may be entitled to a portion of any road tax under Laws 1920, chapter 232, which has not yet been paid to it, such municipality shall be entitled to receive payment thereof on application to board of supervisors of county in which it is located, and board is authorized to pay municipality its portion of such tax as may not have been otherwise appropriated or expended, notwithstanding Laws 1926, chapter 227, since the words "which has not yet been paid" refer to the past and not to the future.

3. TAXATION.

Declaration to recover for use of municipalities one-half of ad valorem road taxes collected by county after November 1, 1930, need not allege that taxes have not been otherwise appropriated or expended (Code 1930, section 6417).

4. TAXATION.

Declaration to recover one-half of ad valorem road taxes collected by county after November 1, 1930, need not allege that municipalities notified counties of their intention to claim taxes (Code 1930, section 6417).

5. PLEADING.

Demurrer to declaration as a whole should have been overruled where it was bad as to part of declaration.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Copiah county HON. E. J. SIMMONS, Judge.

Action by J. B. Gully, state tax collector, against the board of supervisors of Copiah county. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

S. L. McLaurin, of Brandon, for appellant.

To the amended declaration the defendant filed a demurrer. Said demurrer contains four grounds, but the ground most seriously urged was that "the state tax collector is not authorized to maintain this suit," and the lower court based its decision on that ground.

The state tax collector is authorized to prosecute such a suit as is here involved.

Code of 1930, sec. 6986; Robertson, State Revenue Agent, v. Monroe County, 79 So. 187; Sec. 7056, Code of 1930.

The first ground of the demurrer is that the declaration states no cause of action. Clearly this ground is not well taken for a reading of the declaration shows that all of the necessary facts are charged with great care and particularity and no necessary jurisdictional fact is omitted. The third ground of the demurrer states in different language the same ground as that relied on in the second ground of demurrer. What we have said as to the second ground, and the authorities herein cited, apply equally to the third ground of demurrer.

Chalmers Potter, of Jackson, for appellant.

The ground that was chiefly argued in the court below was that plaintiff had no authority to maintain this suit and it was upon this ground that the demurrer was sustained by the court. The pertinent statutes involved are sections 6986, 6987 and 6994 of the Code of 1930.

The state tax collector has authority to maintain this suit.

Town of Purvis v. Lamar County, 137 So. 323.

So far as the questions involved in this suit are concerned the present state tax collector has the identical powers that were conferred by the Code of 1906 upon the old revenue agent.

Robertson, State Revenue Agent, v. Monroe County, 79 So. 184, and 79 So. 187.

In answer to the court's question as to whether or not the provisions of the Code of 1930 apply to the taxes involved in this suit that were collected during the year of 1930, we most respectfully submit that this question must be answered in the affirmative. The Code of 1930 became and was effective the first day of November, 1930.

The code provisions in reference to the giving to the municipality one-half of the ad valorem taxes collected clearly operates on all taxes collected from and after the effective date of the code itself.

Webster Millsaps and W. S. Henley, both of Hazlehurst, for appellee.

The declaration does not state a cause of action because it fails to allege certain jurisdictional facts, to-wit: (a) That said municipalities have duly passed the necessary resolution required by law, and notified the board of supervisors thereof, in order to entitle said municipalities to the benefits of one-half of ad valorem taxes collected on property within the municipalities; and (b) That said funds had not been otherwise appropriated or disposed of, before demand was made for the same.

This suit was brought under section 6417 and section 6418 of the Code of 1930.

All taxes sued for in this instance were levied prior to the provisions of the Code of 1930, which became effective on the first day of November, 1930, and thereby by expressed provisions of said code, the rights of the municipalities to any part of the taxes depended upon the laws in effect prior to the provisions of the Code of 1930.

In the case of Board of Supervisors of Lauderdale County v. City of Meridian, 114 So. 803, 149 Miss. 139, the supreme court of the state of Mississippi held that the Act of 1926 had the effect of repealing chapter 232, Laws of 1920. Chapter 227, Laws of 1926, required all taxes levied for improving roads to be used solely therefor, and therefore conflicted with the previous laws authorizing payment of half thereof to the municipalities.

Especial attention is called to the fact that chapter 129, Laws of 1928, did not vest any additional or superior rights in the municipalities to said taxes, other than that given "under the provisions of chapter 232, of the Laws of 1920." In other words, wherever a municipality would have been entitled to one-half of said ad valorem tax, under the Laws of 1920, except for chapter 227, Laws of 1926, the legislature provided that said municipalities should still be entitled thereto, but if said municipalities have not qualified under the Act of 1920 by passing the necessary resolution, the Laws of 1928 did not create any right to a proportion of said taxes in the municipality.

It is well settled that an ordinance of the municipality must be set out in the pleadings.

Mooney v. Kennett, 61 Am. Dec.; 21 R. C. L. 444.

The allegation of a conclusion of law raises no issue, need not be denied, and its truth is not admitted by a demurrer to the complaint containing it; general pleadings are demurrable where conclusions of law are set forth therein, in lieu of pleadable facts.

21 R. C. L. 441; Booze v. Creswell, 78 So. 770.

In the present case, the orders or ordinances referred to are nowhere set out, and not made exhibits, and there are no definite references to such orders or ordinances.

As to the proposition that the declaration failed to show that said funds claimed have not been otherwise appropriated or expended, we call attention to the fact that there is no allegation of any nature in the declaration on this subject.

State v. Henry, 87 Miss. 125; Mitchell v. Southern Railway, 70 Miss. 917; Fuller v. Illinois Central Railroad Co., 56 So. 783; Horton v. Lincoln County, 116 Miss. 813; Merchants & Farmers Bank v. Bank of Winona, 106 Miss. 471.

The revenue agent is not authorized to bring suit.

Miller, State Tax Collector, v. Coahoma County, 128 So. 348.

The court has heretofore, after submission of the case on briefs, requested briefs dealing with the question of whether any part of the items sued for is governed by the Code of 1930, or whether the entire matter is controlled by laws in effect prior thereto. In the case of State Tax Commission of New Mexico v. Faircloth, County Treasurer, 290 P. 1017, a statute giving a percentage of the delinquent taxes collected to the state tax commission was held to be not applicable to tax judgments rendered under an earlier act.

School District No. 18 of Pondera County v. Pondera County (Mont.), 297 P. 498; Burbank Irrigation District No. 4 v. Douglas, County Treasurer, 255 P. 360.

In the case of School District No. 24 v. Smith, 191 P. 507, the court held that taxes levied for school purposes cannot be diverted or used for county general purposes, and that taxes levied for county general purposes could not be used for school purposes. In the case of State v. Lawson, State Auditor, 157 S.E. 589, the court held that the funds derived from taxes, levied for a particular purpose, cannot be legally expended for another.

In re Opinion of the Judges, Supreme Court of South Dakota, 240 N.W. 601.

OPINION

Smith, C. J.

This is an action at law in which the appellant seeks to recover...