Town of Crenshaw v. Panola County

• Decision Date: 26 November 1917
• Docket Number: 19402
• Citation: 76 So. 741,115 Miss. 891
• Court: Mississippi Supreme Court
• Parties: TOWN OF CRENSHAW v. PANOLA COUNTY

76 So. 741

115 Miss. 891

TOWN OF CRENSHAW v. PANOLA COUNTY

No. 19402

Supreme Court of Mississippi

November 26, 1917

APPEAL from the circuit court of Panola county, HON. E. D. DINKINS Judge.

Suit by the Town of Chenshaw against Panola County. From a judgment of the circuit court reversing a judgment of a justice of the peace in favor of plaintiff and dismissing the case plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Shands & Montgomery, for appellant.

We respectfully contend that the statute of limitations of six years did not apply in this case, and that the claim was not barred by reason of any limitation fixed by statute. Section 104 of the Mississippi Constitution reads as follows "Statutes of limitation in civil causes shall not run against the state, or any subdivision or municipal corporation thereof."

Upon a proper construction of this section of the Constitution, in my judgment, the decision in this case rests. Words in the Constitution are to be taken in their plain and obvious sense, and when this sense is clear, no resort can be had to construction. Smith v. Halfacre, 6 Howard, 582; Brien v. Williamson, 7 Howard, 14.

It seems to me that this provision of the Constitution is so plain as to eliminate from consideration the question of the applicability of the statute of limitations in this case. The Constitution says in the plainest, simplest language, that the statute of limitations in civil causes shall not run against a municipality. No amount of argument or discussion could add anything which would make the meaning of this clause in the Constitution clearer.

Section 3096, Code 1906, provides that statutes of limitation in civil causes shall not run against the state or any subdivision or municipal corporation thereof; but all such statutes shall run in favor of the state, the counties and the municipal corporations therein."

The Constitution is of course the supreme law of the state of Mississippi and where a conflict exists between a provision in the Constitution and a statute, the constitutional provision controls. The court in construing a statute, will if possible, give to it such a construction as will render it constitutional.

If the court in this case construes the clause in section 3096, "but all such statutes shall run in favor of the state, the counties, and the municipal corporations therein," to mean that the county may successfully plead the statute of limitations against the town, then this statute is repugnant to section 104 of the Constitution, because the Constitution clearly provides that the statute of limitation shall not run against a municipality, and make this provision without qualification.

But section 104 of the Constitution controls this question in this case, and we rest the decision or this question upon a construction of its plain, simple announcement, that statute of limitation shall not run in civil causes against a municipality. We can add nothing by way of argument which could make the provision plainer.

The court will view the facts of this case from a practical view point. The county, through its tax collector, was the only legally constituted authority for the collection of this tax; the town could not collect it. It was the duty of the county to distribute or divide this road fund with the town immediately upon receipt thereof, under sections 4443 and 4449 of the Code of 1906. Immediately upon the collection of the tax, the county became the debtor of the town to the extent of one-half of the road tax so collected. It is always the duty of the debtor to seek the creditor and pay him, rather than to compel the creditor to seek the debtor and demand payment of the debt.

Whether the money was turned into the road fund and expended in the working of the various roads of the county, or not, was a matter over which the town had no control whatever. The county collected the money, and was legally obligated to pay one-half thereof over to the town; the town had no authority to direct the appropriation of the fund in any manner; and so far as the town was concerned, the county had the right to make whatever disposition it desired to make of the fund. But the fact that the county deposited the money so collected to any particular county fund, and used it for any particular purpose, could not possibly operate as a payment or discharge of its legal liability to the town for one-half of the money collected and due to the town.

It is not shown here that the town of Crenshaw had any knowledge whatever as to what the county did with the money so collected. The fact that the county used the money in working of the various county roads, outside the corporate limits of the town of Crenshaw, did not discharge its obligation to the town to pay to it the amount legally due to it. The county was legally obligated to pay into the treasury of the town for account of the town street fund one-half the taxes collected on the taxable property within its corporate limits for road purposes and when the tax was collected by the county, it become the debtor of the town to that extent.

I respectfully submit that section 104 of the Constitution prohibits the running of the statute of limitations against the town in this case; and that the learned trial judge was in error in deciding this case in favor of the county. I submit that the judgment of the lower court should be reversed, and judgment entered in this court for the sum demanded, less commissions due to sheriff for collection, with all lawful interest and costs.

L. L. Pearson and John Kyle, for appellee.

Two defenses were interposed on the trial of this case in the lower court, to wit: the statute of limitations and special matter set up under the plea of general issue.

As to the first plea of the statute of limitations: It is urged that this plea cannot be sustained because of the provision of section 104 of the Constitution. It is the contention of the county that this section of the Constitution was never intended to operate as an inhibition against a department of the government pleading the statute against another department of government, but was intended solely to prohibit the legislature from authorizing private parties to plead statutes of limitations to defeat a right of action vested in the government. We have been unable to find any authority on this point, and so far as our investigation has gone, no case involving this point has ever been decided in this or any other state. But in support of this plea we refer to the very clear opinion of the circuit judge which has been made a part of the record on this appeal.

The defense made under the plea of the general issue with notice must unquestionably be sustained. It is our opinion that the tax collector, in making his settlement, should pay over to the municipality directly its half of the ad valorem road taxes collected by him. If he does not do this, however, the money, so long as it remains in the county treasury, may be recovered from the county authorities. But if the money is not claimed while it is in the custody of the county authorities and no demand is made for it while it is in fund, then the municipality is clearly estopped by their own conduct from coming into court years afterwards and undertaking to establish a claim against the general county fund for the amount of road money which they could have demanded and expended under the direction of the municipal authorities for working their streets, but which they allowed to remain in the county road fund and be expended by an old board of supervisors years before, the agreed statement of facts in this case show that no part of the money received for ad valorem road taxes for the years 1907 and 1908 was ever placed to the credit of the general fund of the county and that at the time demand was made for the amount herein sued for, not a dollar of it was in fund, but all of it had been long since expended for working roads in the various parts of the country including those leading into the town of Crenshaw.

The statute has provided two governing bodies for the disbursement of the ad valorem road tax, to wit, the county board of supervisors and the board of aldermen of the municipality. The fund created by the levying of this special road tax is a special fund to be used for the purposes which the statute defines and for no other purposes. One of the governing bodies charged with the duty of expending the money has stood idly by and allowed the other governing body to expend it all, not for any illegal purposes but for the purpose for which the fund was created; this being true the municipality of Crenshaw cannot at this late date come in and undertake to assert a general claim against the county.

The case made on this appeal is one of first impression in this court and the amount involved herein is relatively small, but the decision of the court on this appeal is a great consequence, because of other cases involving the same legal points but much larger amounts of money are now pending in the various counties of the state. As pointed out by the learned counsel for the appellant, the leading authorities I wish to call the court's attention to are two Florida cases, the first of which was referred to specifically in the brief for the appellants. The policy of the law of that state and the wording of the statutes in that state are in effect identical with our own. In the case of the City of Sanford v. Orange County, 45 So. 479, the plea and defense herein made was upheld by the court in language most convincing and while the word laches was used in the opinion of the court, the real defense was an estoppel against making demand under the circumstances. But counse...