In re Validation of Road Protection Bonds of Hancock County

• Decision Date: 05 December 1938
• Docket Number: 33530
• Citation: 184 Miss. 727,184 So. 815
• Court: Mississippi Supreme Court
• Parties: IN RE VALIDATION OF ROAD PROTECTION BONDS OF HANCOCK COUNTY

184 So. 815

184 Miss. 727

IN RE VALIDATION OF ROAD PROTECTION BONDS OF HANCOCK COUNTY

No. 33530

Supreme Court of Mississippi

December 5, 1938

Division B

APPEAL from the chancery court of Hancock county Hon. D. M. RUSSELL Chancellor.

Proceedings in the matter of the validation of road protection bonds of Hancock County, wherein Norton Haas and others filed objections. From a decree of validation Norton Haas and others appeal. Affirmed.

Affirmed.

Edward I. Jones, of Bay St. Louis, for appellants.

The court erred in holding that the board of supervisors followed Chapter 143 of the Laws of Mississippi of 1934, as amended by Chapter 279 of the Laws of Mississippi of 1936, in fixing the maturities of the refunding bonds sought to be issued.

Chapter 279 of the Laws of 1936 was dated on the 24th day of March, 1936, and to proceed under said section the first bonds of the issue must mature not later than March 24, 1941, but the board of supervisors provided for maturities of the bonds herein attempted to be validated, beginning the first day of May, 1943, and this was not in accordance with the said statute under which they were attempted to be issued.

The court erred in holding that "There are not and will not be sufficient funds on hand with which to pay said bonds."

The board of supervisors, at its March, 1938, meeting, transferred out of the road protection sinking bond fund the amount of $ 24,000, being automobile privilege license paid into said fund by the sheriff and tax collector under Chapter 319 of the Laws of 1924, and placed said money in the road fund. The board had no authority whatever to transfer said $ 24,000 out of said road protection sinking bond fund, but purported to act under an opinion of the Attorney-General of the State, which, on its face, did not give the board a scintilla of authority to transfer said $ 24,000 of the said road protection sinking bond fund unless there was surplus in said road protection bond and interest sinking fund; but the board did, without authority, transfer said $ 24,000 of motor vehicle privilege licenses without regard to the maturities of the road protection bonds and interest, and seemingly for the express purpose of creating a deficiency in the road protection fund, so that they could refund said road protection bond issue.

Burdeaux v. Cowan, 181 So. 852.

The $ 24,000 unlawfully transferred should be returned and replaced in said road protection bond fund, or at least a sufficient amount thereof which would cover the $ 17,000 shown by the record to be lacking to pay all maturing bonds and interest.

The court erred in overruling the objection that the board, in its resolution, "does not judicially determine and find that funds available from taxes are not sufficient to pay said outstanding bonds and interest thereof whenever they mature."

The resolution of the board attempting to adjudicate and find sufficient facts to have authority under Section 4 of Chapter 143 of the Laws of 1934 to issue refunding bonds, failed to use the words of the statute or such words as would substantially conform to the intent of the statute.

The finding of the board does not adjudicate that at the time there was not a sufficient amount on hand to pay the maturing bonds and interest whenever they may mature and surely the legislature did not intend to permit a governing authority to refund bonds when there were sufficient funds on hand to pay the next maturing bonds and interest, and unless the board adjudicated in the wording of the statute or such words as would substantially conform to the intent of the statute, the board would be without power to refund the said bonds.

George R. Smith, of Gulfport, and W. J. Gex, Jr., and Robert L. Genin, both of Bay St. Louis, for appellee.

To fix maturities of all bonds from the date of the act was never the intention or purpose of the legislature, for the reason that the maximum time under the provisions of the act would be reduced each year thereafter; in other words, in 1934, after the passage of the act, the time would run only twenty-nine years, in 1935 twenty-eight years, 1936 twenty-seven years, 1937 twenty-six years and these bonds to be issued in 1938, the maximum period would be twenty-five years. Then again the act of 1936 provides they shall begin to mature not more than five years, and if appellants construction was correct this year they should be made to mature beginning not more than two years so if that construction of the act was applied, in five years from the date of the act of 1936, no bonds could be issued under that act. Construing the Act of 1934 and 1936 as a whole, there can be no doubt that the legislature intended the words "this date" to mean the date of the resolution or order passed by the board of governing authority.

The intent and purpose of the act of 1934 and 1936 is clear that "this date" as expressed in the act, meant the date of the issuance of the bonds.

Gandy v. Public Service Corp., 140 So. 687, 165 Miss. 187.

The court in construing a statute which has been amended, must consider it as it stands after amendment.

George v. Woods, 49 So. 147, 94 Miss. 268; Lang v. Bd. of Suprs., Harrison County, 75 So. 126, 114 Miss. 341.

In determining the legislative intent the dates of enactment will be looked to, and the one last in time will be held as the law.

Mobile Saving Bank v. Patty, 16 F. 751.

After a careful search of the record and decree of the court below, we are unable to find where the court has held "there are not and will not be sufficient funds on hand with which to pay said bonds." If, however, the court had so held, we respectfully submit the record would have justified the holding.

The fact that the road and bridge fund this year received the revenue for the repair of roads and bridges in the county, the purpose for which it was levied, cannot be complained of by the objector. The roads of the county have been suffering because of the loss of this revenue in the years past and because of the inability of the board of supervisors in 1926 to see the coming depression in the nineteen thirties. Now that the law provides a method, the board of supervisors have availed themselves of the opportunity of refinancing these obligations.

The right and power to refinance bonds under Chapter 143 of the Laws of 1934, and acts amendatory thereto, are broad and liberal and does not require a default in the payment of the bonds. The governing authorities may anticipate default and protect the credit and interest of the county.

The board of supervisors being convinced that it was not advantageous or profitable to levy more taxes, that by so doing it would amount to confiscation, that there were no funds capable of being used each year to pay these bonds and the bonds maturing in the future, with interest, availed themselves of the benefits of the statute and proceeded to refinance the bonds.

It was not necessary for the board to adjudicate there was no money on hand, or presently in bank. Substantial compliance with the statute is all that is necessary, but the board of supervisors nevertheless have strictly complied with the statute.

The fundamental rule of construction is to ascertain and give effect to the intention of the legislature as expressed in the statute.

Darnell v. Johnston, 68 So. 780, 109 Miss. 570; Roseberry v. Norsworthy, 100 So. 514, 135 Miss. 845.

Argued orally by Edward I. Jones, for appellant, and by W. J. Gex, Jr., George. R. Smith and Robert L. Genin, for appellee.

OPINION

McGehee, J.

Under the provisions of chapter 319 of the Laws of 1924, as amended by chapter 234 of the Laws of 1926, the boards of supervisors in counties along the gulf coast of the state were required to erect and maintain all necessary sea-walls for the protection of the public highways against damages that would be otherwise occasioned by tide-waters being driven against the same in consequence of storms; and...