State v. Board of Supervisors of Monroe County

• Decision Date: 10 June 1940
• Docket Number: 34173
• Citation: State v. Board of Supervisors of Monroe County, 196 So. 253, 188 Miss. 636 (Miss. 1940)
• Court: Mississippi Supreme Court
• Parties: STATE, USE OF CITY OF ABERDEEN v. BOARD OF SUPERVISORS OF MONROE COUNTY et al

196 So. 253

188 Miss. 636

STATE, USE OF CITY OF ABERDEEN v. BOARD OF SUPERVISORS OF MONROE COUNTY et al

No. 34173

Supreme Court of Mississippi, Division B

June 10, 1940

May 27 1940

Suggestion Of Error Overruled June 10, 1940.

APPEAL from circuit court of Monroe county, HON. CLAUDE F. CLAYTON Judge.

Suit by the State, for the Use of the City of Aberdeen, against the Board of Supervisors of Monroe County and others to recover the proportionate part of ad valorem road taxes to which the city claimed to be entitled. From the judgment plaintiff appeals. Affirmed.

On suggestion of error. Former opinion modified and suggestion of error overruled.

Affirmed. Suggestion of error overruled.

Thomas F. Payne, of Aberdeen, for appellant.

This suit was filed by the City of Aberdeen, Mississippi, under Section 2915 of the Mississippi Code of 1930. The lower court, adopting the argument of counsel for appellees, held that members of the Board of Supervisors are not such officers as was in the contemplation of the legislators when they enacted this section and that the only officer in the contemplation of the legislators who enacted this statute were, "Such officers as those who have public funds actually in their possession, such as a tax collector prior to the time of making settlement with the county treasury or county depository, or a state treasurer who has in his actual possession the funds of the state subject to the order of warrants drawn on the state treasury, a fiscal agent and not a quasi judicial officer."

And the lower court further held that the word custodian used in this section could not be properly applied to a Board of Supervisors, "who, although exercising control over a part of the funds of the county, to say the least, have no funds of the county actually in their possession."

We take issue squarely with counsel for the appellee and the lower court. We respectfully insist that this section needs no judicial enlargement and that the action of the lower court amounted to an emasculation of this section by adding to it what he thought the legislators intended. This section is perfectly plain, and if it means anything it means exactly what it says.

It is the purpose of this section to preserve in its integrity the public funds and property in this state, and it shall be so construed that the commissions, if any, and fees of the attorney general and the state tax collector, and all other costs of collection must be borne by such derelict official or custodian.

Section 6417 of the Mississippi Code of 1930 provides that one-half of all ad valorem taxes collected by or for a county or separate or special road district on property within a municipality (the streets of which are worked at the expense of the municipal treasury or worked by municipal authority) for road purposes of such county or district . . . shall be paid over to the treasury of such municipality for said municipality.

To hold that these supervisors who are public officers and in whose constructive custody these funds are kept are not such officers as this statute was intended to apply to, we respectfully insist, destroys the force and effect of this section.

Section 2015 further provides that such public official who improperly withholds such funds from the authority whose duty it is to receive the same or shall fail to turn the property over to the proper custodian shall be liable on his bond for all costs of collection or recovery of money or property including in such cost the commissions, if any, of the state tax collector . . . and all other costs connected therewith including interest on funds improperly withheld for such time as such funds have been withheld.

We call the court's attention to the last paragraph in Section 2915, supra, which seems to us to cover the question at issue in this case completely and squarely, in which the statute provides that it is the purpose of this section to preserve in its integrity the public funds and property in this state, and it shall be so construed that the commissions, if any, and fees of the attorney general and the state tax collector and all other costs of collection must be borne by such derelict official or custodian.

Section 6417, Code 1930, does not require municipalities to notify counties of their intention to claim one-half of the ad valorem taxes collected within the municipalities for road purposes.

Gully, State Tax Collector, v. Bd. of Supervisors of Copiah County, 167 Miss. 562.

Our Supreme Court has been very sensitive to any effort on the part of the Board of Supervisors in defeating the plain legislative intent that one-half of all ad valorem taxes collected on property within the municipality for road purposes must be and shall be paid to the municipality.

Town of Purvis v. Lamar County, 161 Miss. 454; Gully, State Tax Collector, v. Attala County, 165 Miss. 86.

It may be true that the supervisors are not actually the custodians of public funds but they are constructive custodians of the public funds, but regardless of whether they are actual or constructive custodians, these appellees, to-wit, these members of the Board of Supervisors certainly improperly withheld this money from the appellant since they alone had the right to order the money withdrawn from the public funds by warrants and they failed and refused to do so notwithstanding the statute, Section 2915, Code of 1930, which expressly provides that they must pay these funds over to the municipality, to-wit, the appellant.

D. W. Houston, Sr. & Jr., of Aberdeen, for appellees.

Appellant based its suit solely and alone upon Section 2915 of the Mississippi Code of 1930.

A clear analysis of this section which was Chapter 328 of the Laws of 1924 and Chapter 90 Extra Session of 1928 immediately brings to the mind of the court that this is a highly penal statute and that it must be strictly construed, and to hold one liable thereunder there must be no doubt left as to such person falling clearly within such designated class of officers and who violates the literal terms thereof. It cannot be extended by construction or otherwise.

Gully v. White, 167 Miss. 691, 146 So. 852.

It is conceded that Section 6417 of the Mississippi Code of 1930 provides that one-half of all ad valorem taxes collected by or for the county, etc., within the municipality (the streets of which are worked at the expense of the municipal treasury) for road purpose of such county, etc., belongs to the municipality, etc., and that Section 6418 of the Code provides the method of payment to municipalities "on application to the Board of Supervisors of the County" in which located, etc., but neither these statutes, nor Section 2915 nor any other statute, make Boards of Supervisors, "Custodian" or "Custodians" of such funds. In fact, such funds never come into the corporal or physical custody of said Board of Supervisors, nor do such funds ever come into the hand or hands of said Board of Supervisors, or any single member thereof, by virtue of their official position or positions.

The very wording of the statute itself shows this: The word "Board" is not used anywhere therein, and is excluded therefrom by the very words of the statute itself which relates to persons in the singular, and not in the plural, thus excluding boards, bodies or commissions.

This statute has been up and considerably narrowed in its scope by this court in several different cases, among which are the cases of:

Gully v. White, 167 Miss. 691; Winston County v. Louisville Home Bank, 164 Miss. 64, 143 So. 884; Gully v. Biloxi, 177 Miss. 782, 171 So. 198; Gully v. Biloxi, 182 Miss. 723, 180 So. 821; Bank of Indianola v. Miller, 147 Miss. 695, 112 So. 877; U.S. F. & G. v. Rice, Atty. Gen., 185 So. 563.

These particular cases are principally applicable to the extent of showing to what narrow limits said Section 2915 will be confined, and clearly show that it was, and is, a highly penal statute intended so by the legislature, and will, and can, not be extended by construction, and with such a limitation being placed thereon could not by the wildest stretch of imagination be extended to cover Boards of Supervisors or the subject matter involved in the suit of Gully for use of City of Aberdeen v. Monroe County referred to in the declaration, and the judgment exhibited thereto.

Certainly it cannot be said that the funds herein referred to came into the hands of the Board of Supervisors within their immediate care and control or as is contemplated by Section 2915.

Certain it is that the Board of Supervisors acting as they do, and as it is apparent they did in the instant case, in a quasi-judicial and discretionary capacity, cannot be held liable, either as a board or individually, and consequently the lower court was eminently correct in sustaining the demurrer and discharging the defendants and the surety on their bonds.

15 C. J. 478 (132); 22 R. C. L. 487; Paxton v. Baum, 59 Miss. 531; Paxton v. Arthur, 60 Miss. 832; Bell v. McKinney, 63 Miss. 187; State, to use of Lincoln County, v. Green, County Superintendent of Education, 71 So. 171; Pegram v. State, 83 So. 741; McNulty v. Vickery, 88 So. 718; Pidgeon-Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Monnier v. Godbold, 116 La. 165, 40 So. 604, 4 L. R. A. (N. S.) 463, 7 Ann. Cas. 768; Blanchard v. Burne, 110 Ark. 515, 162 S.W. 63, 49 L. R. A. (N. S.) 1199; Reese v. Isola State Bank, 105 So. 636; Miller v. Tucker, 105 So. 774; National Surety Co. v. Miller, 124 So. 251; Gully v. Thomas, 158 So. 465; State v. Forbes, 174 So. 67; Lee County v. James, 178 Miss. 554, 174 So. 76.

Argued orally by Thomas F. Payne, for appellant, and by D. W. Houston, Jr., for appellees.

Ethridge P. J., McGe...