Panola County v. Town of Sardis

• Decision Date: 19 November 1934
• Docket Number: 31220
• Citation: 171 Miss. 490,157 So. 579
• Court: Mississippi Supreme Court
• Parties: PANOLA COUNTY v. TOWN OF SARDIS

157 So. 579

171 Miss. 490

PANOLA COUNTY v. TOWN OF SARDIS

No. 31220

Supreme Court of Mississippi

November 19, 1934

(In Banc.)

1 BRIDGES.

Where board of supervisors levied tax for bridge purposes, it could be used only for such purpose in absence of enabling statute authorizing another use and municipality within county was not entitled to one-half of such funds though it worked its streets at its own expense (Laws 1920, chap. 232; Laws 1928 chap. 157, sec. 2).

2 BRIDGES.

Administrative authorities cannot by administrative device deprive municipality of its one-half of taxes collected for roads and bridges (Laws 1920, chap. 232).

3 COUNTIES.

Statutes giving general jurisdiction to board of supervisors held not modified or repealed by any statutes on special road systems from 1920 to present time (Code 1930, secs. 214, 256).

4. COUNTIES.

Board of supervisors held authorized under statute to levy taxes not only for general purposes but to have power to apportion taxes levied to various objects with which board is authorized to deal and to expend county money in carrying forward purposes authorized (Code 1930, secs. 214, 256).

5. COUNTIES.

County board of supervisors held empowered to levy specific tax for specific purpose by order entered on their minutes to that effect where purpose is authorized by law (Code 1930, sec. 214).

6. CONSTITUTIONAL LAW.

While constitutional jurisdiction of board of supervisors over roads, ferries, and bridges must be exercised under regulations prescribed by Legislature, Legislature cannot entirely destroy such jurisdiction (Constitution 1890, secs. 85, 170).

7. BRIDGES.

Wherever county is authorized to build bridge and statute does not provide for specific tax or fund for payment, board of supervisors may levy tax on property of county to pay for bridge and may appropriate money for that purpose (Code 1930, sec. 214).

8. BRIDGES.

Statutes held not to manifest legislative intention that levies by board of supervisors specially made for bridge purposes prior to 1928 statute should be divided between municipality and county (Laws 1920, chap. 232; Constitution 1890, sec. 170; Code 1930, secs. 214, 256, 6311, 6330, 6349, 6350--6352, 6354, 6355, 6385, 6392; Section 6381, as amended by Laws 1932, chap. 196, and sec. 6451, as amended by Laws 1932, chap. 176).

9. STATUTES.

Repeals by implication are not favored.

10. COUNTIES.

Legislature's ratification of payments made by counties to municipalities renders it immaterial whether board of supervisors properly allowed them or whether municipality rightfully claimed them (Laws 1928, chap. 129; Laws 1920, chap. 232).

HON. JOHN M. KUYKENDALL, Judge.

APPEAL from the circuit court, Panola county HON. JOHN M. KUYKENDALL, Judge.

Action by the town of Sardis against Panola county. Judgment for plaintiff and defendant appeals, and plaintiff files a cross-appeal. On direct appeal judgment reversed and suit dismissed, and on cross-appeal no error.

Reversed and dismissed.

Jno. W. Kyle, of Sardis, and Creekmore & Creekmore, of Jackson, for appellant.

Under the law plaintiff is not entitled to recover any part of the tax levied to be used for building bridges and culverts.

Chapter 232, Laws of 1920; Section 6417, Code of 1930; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Bresser v. Hathorn, 144 Miss. 24, 109 So. 23; Middleton v. Lincoln Co., 122 Miss. 673, 84 So. 907; Chapter 15, sec. 8, art. 38, Code 1857; Chapter 53, art. 8, Code 1871, sec. 2374; Sections 868-871 inclusive, Code of 1930; Section 3937, Code of 1892; Sections 4433, 4, 5 and 9, Code of 1906; Chapter 157, Laws of 1928; Sections 6417-8, Code of 1930; Section 85, Constitution of 1890; Sections 3929-31, Code of 1892; Sections 4465-4475, Code of 1906; Chapter 150, Laws of 1910; Chapter 149, Laws of 1910; Chapters 257-8, Laws of 1912; Chapters 272-7, Laws of 1916; Chapter 177, Laws of 1920; Chapter 157, Laws of 1928; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Lamar County v. G. & S. I. R. R. Co., 118 Miss. 243, 79 So. 90; Bay St. Louis v. Hancock County, 120 Miss. 873, 83 So. 276; Lauderdale County v. Meridian, 149 Miss. 139, 114 So. 803; Gully v. Copiah County, 147 So. 300; Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757.

Chapter 129, Laws of 1928, does not give plaintiff right to share in the bridge fund.

Gully v. Copiah County, 147 So. 300; Moore v. Tunica County, 143 Miss. 821; Section 61, Constitution of 1890; Lauderdale County v. Meridian, 149 Miss. 139.

Board of supervisors has no power to allow claim without money in particular fund wherewith to pay it.

Chapter 326, Laws of 1920; Marshall County v. Callahan, 130 Miss. 271, 94 So. 5.

The claim sued on is res adjudicata and plaintiff split its cause of action.

Humphreys County v. Cashin, 128 Miss. 247; 15 R. C. L. 965, 966; 34 C. J. 827, 828; Y. & M. V. R. R. Co. v. Paine, 92 Miss. 126, 45 So. 705; U. S. F. & G. Co. v. Tate County, 114 Miss. 1, 74 So. 769; George County v. Bufkin, 117 Miss. 844, 78 So. 801; Fewell v. N. O. & N. E. R. R. Co., 114 Miss. 319, 109 So. 853; Farmer v. Union Ins. Co., 146 Miss. 600, 111 So. 584; Baird v. U.S. 96 U.S. 430, 24 L.Ed. 703; Keel v. Jones, 93 Miss. 244; 15 R. C. L. 980.

No valid resolution preserving its rights under chapter 232, Laws of 1920, was adopted by the mayor and board of aldermen of plaintiff and for that reason it cannot recover.

Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757; Sections 2523-4, Code of 1930; Green v. Hutson, 139 Miss. 471; Wilson v. City of Lexington, 153 Miss. 212, 121 So. 859.

In no event could there be any recovery for taxes for the fiscal year 1931-32.

Section 7, chapter 24, Laws of 1931; Lauderdale County v. Meridian, 149 Miss. 139, 114 So. 803.

James McClure, Jr., of Sardis, for appellee.

Plaintiff based its right to recover from the defendant the funds sued for in its declaration under the provisions of chapter 232 of the Laws of 1920, chapter 129 of the Laws of 1928, if applicable, and sections 6417 and 6418 of the Mississippi Code of 1930.

Board of Supervisors of Lauderdale County v. City of Meridian, 114 So. 803; Purvis v. Lamar County, 137 So. 323.

It is to be observed that section 6417, Code of 1930, is practically in the same and identical language as Section 1 of chapter 232 of the Laws of 1920, and it is to be further observed that section 2 of chapter 232 of the Laws of 1920, wherein a municipality was required by the terms of that section to preserve the benefits of that act by adopting a resolution and notifying the board of supervisors thereof, is not brought forward in the 1930 Code.

Chapter 232 of the Laws of 1920, provides in unmistakable terms that one-half of all ad valorem taxes collected by or for a county or a separate or a special road district operating under any of the laws of the state on property within a municipality, the streets of which are worked at the expense of the municipal treasury, for road purposes as well as all commutation taxes collected for road purposes by such county or district from residents of a municipality provided that any municipality desiring to preserve to itself the benefits of this act shall by resolution notify the board of supervisors that such municipality will claim its one-half of all road taxes collected therein.

Since the mayor and each and all of the aldermen were present at the meeting held on October 13, 1920, the business transacted by them on that date was valid.

Magneau v. City of Premont, 30 Neb. 843, 27 Am. St. Rep. 436; 19 R. C. L., p. 884, par. 184.

There was no decision rendered by this court construing chapter 232 of the Laws of 1920, and chapter 227 of the Laws of 1926, until the case of board of supervisors of Lauderdale County v. City of Meridian, 149 Miss. 139, 114 So. 803.

It is to be noted from the decision rendered by this court in the City of Meridian case, the court held that but for the provisions of chapter 227, Laws of 1926, this city would have been entitled to have recovered in that case.

Chapter 129, Laws of 1928, does not affect plaintiff's right of recovery.

Gully, State Tax Collector, v. Adams County, 153 So. 165; Gully v. Copiah County, 147 So. 300; Town of Purvis v. Lamar County, 161 Miss. 464, 137 So. 323; State Tax Collector v. Attala County, 145 So. 907; Grenada County v. City of Grenada, 150 So. 656.

Argued orally by H. H. Creekmore and Jno. W. Kyle, for appellant, and W. A. Henry, James McClure and Herbert Holmes, for appellee.

Ethridge, J., Griffith, J., concurring. Chief Justice Smith.

OPINION

Ethridge, J.

This is an appeal by Panola county from a judgment rendered in the circuit court for five thousand seven hundred two dollars and sixty-eight cents and costs, in favor of the town of Sardis. The plaintiff, an incorporated municipality which worked its streets at its own expense, filed a claim against the county for one-half of the ad valorem tax levied for bridge purposes throughout the county, the latter having a separate levy from the separate road districts of the county, consisting of three separate road districts embracing the several beats or supervisors' districts, and two districts of the county having a joint separate road district composed of the two beats. This claim covered the years 1920 to 1930, both inclusive. The amount of the levy varied from time to time but at the time of the filing of the suit, the total funds in the county treasury account of bridges amounted to forty-six thousand two hundred forty-one dollars and thirty-nine cents. The record shows the amount of the tax collected for the bridge fund, and the amount expended each year. The municipality had filed a claim for a division of the road funds for...