Wells v. McNeill

• Decision Date: 28 January 1909
• Citation: 93 Miss. 407,48 So. 184
• Court: Mississippi Supreme Court
• Parties: CHARLES M. WELLS, TAX COLLECTOR v. GEORGE H. MCNEILL ET AL

48 So. 184

93 Miss. 407

CHARLES M. WELLS, TAX COLLECTOR v. GEORGE H. MCNEILL ET AL

Supreme Court of Mississippi

January 28, 1909

October 1908

FROM the chancery court of Newton county, HON. SAMUEL WHITMAN Chancellor.

McNeill and six hundred and ninety-nine others, tax payers of Newton county, appellees, were complainants in the court below Wells, tax collector of the county, appellant was defendant there. The bill sought an injunction restraining the collection from complainants, and others similarly situated who would join in the suit, of a special courthouse tax. A preliminary injunction was granted; the chancery court refused to dissolve the same on motion of defendant, but granted an appeal to the supreme court from the decree over-ruling defendant's motion to dissolve. The facts are stated in the opinion of the court.

Affirmed.

Witherspoon & Witherspoon, for appellant.

The demurrer should have been sustained on the ground that the bill has no equity on its face. The only pretense of an equity is to restrain by injunction the collection of a four and one-half mill tax levied for the purpose of building a court house. The general rule is that a court of equity cannot interfere with the collection of the public revenues by injunction. The remedy of the tax payer is to pay the illegal tax under protest, and then sue to recover it back or to sue the tax collector for trespass when he seizes the tax payer's property to enforce the pay-merit of the tax. If the tax be illegal, he can recover the property destrained by replevin; but he can only resort to equity where the proceedings of the tax collector will east a cloud upon his title, or there is some ground of equity jurisdiction outside of the illegality of the tax. The only modification of this rule is found in the section of the code which provides that the chancery court shall have jurisdiction of suits by one or more tax payers to restrain the collection of any taxes "levied on or attempted to be collected without authority of the law." Code, § 533. And unless the four and one-half mill tax involved in this case was "levied or attempted to be collected without authority of law," then there is no equity on the face of the bill.

The words of the statute, "levied or attempted to be collected without authority of law," being in derogation of a well established rule laid down by the courts must be strictly construed, and cannot be construed to embrace any case which does not fall literally within its terms.

Code 1906, § 324 provides that the board of supervisors may levy a special tax for the erection, etc., of the court house. Therefore, the bill shows that the levy of the tax was not only not "without authority of law" but was authorized by an express statute. It shows that the levy was made by the board, the very tribunal which the statute authorizes to make the levy. It shows that the levy was made at the September term of the board, which is the time and the only time fixed by law at which the levy could be made. It shows that the total amount of all the levies made by the board, including the state tax was eighteen mills, and that the law of 1908 expressly authorizes the board to levy as much as eighteen mills, so that the levy is legal so far as the amount of it is concerned. The bill shows that the levy was made for the purpose of erecting a court house; and this is the very object and purpose for which section 324 expressly authorizes the levy to be made. How then can it be said that the levy was "without authority of law?" In what respect was it "without authority of law?" It be said that it was "without authority of law" as to the time it was made, or as to the tribunal that made it, or as to the amount of it, or as to the object of it, the statute section 324 answers the argument, and shows that the levy "was with authority of law" in all these respects; and the bill affirmatively shows that every feature and element of the levy was expressly authorized by statute.

And if the levy was not "without authority of law" how can it be said that the appellant was attempting to collect the taxes "without authority of law." The bill shows that the collector is fortified with an assessment of which there is no complaint; that he is the tax collector of the county; that he only threatens to use the "ordinary methods" for the collection of the taxes; and if, as we have shown, the levy authorized be by law, then it cannot be said that the appellant is attempting to collect the tax "without authority of law."

But the bill further charges that the board also advertised for bids for the construction of the court house to be opened on January 4, 1909, and that the board proposes to make a contract for the erection of the court house to cost at least $ 30,000, and that this debt, together with all the ordinary expenses of the county will exceed the twelve mill levy, and that the board proposes to pay for the court house by accumulating a fund by successive annual levies from year to year, and that it is not authorized to contract a debt for a court house, which, together with the current expenses will exceed the total revenues of the county The whole complaint of the bill is founded on the mistaken idea that in the order made by the board at its May term 1908 the board provided that the court house should cost at least $ 30,000.

The theory of the bill is not that the four and one-half mill tax was "levied without authority of law" nor that it is attempted to be collected without authority of law, but that the $ 19,709.05 collected by the four and one-half mill will be used in paying for a court house, and that the board will have agreed to pay more than $ 19,709.05 for the court house, and that in contracting a debt for the excess over this sum it will exceed its authority. This is the real complaint of the bill, and, as we have stated, the orders of the board do not show this to be true.

But if for the sake of argument we concede that it is true, and that the board will enter into a contract for a court house to cost more than $ 19,709.05, what would this prove? Would it prove that the board could not legally levy and that the tax collector could not legally collect the $ 19,709.05 or would it prove that at some time in the future the board would make a contract to build a more costly court house than the law authorizes. If the board intends to make a contract for a more costly court house than the law authorizes, then we submit that the remedy for the unlawful act would be to appeal to the circuit court from the order making the contract; but it is a gross perversion of language to say that, because the board intends to make a contract to pay more for a court house than the law permits, therefore, the levy and collection of the tax, legal in every respect, and expressly authorized by the statute was "levied or attempted to be collected without authority of law." If the four and one-half mills is all that the board is authorized to levy for the erection of the court house, and if it cannot next September levy another tax to complete the payment for the court house, then the tax payer can either prevent the board from entering into such a contract, and force it to build a court house costing not more than $ 19,709.05, or else, when it attempts to levy another tax to complete that payment if such levy is without authority of law, the tax payer can under Code 1906, § 324 enjoin the collecting of such a tax; but merely because the board intends to contract a larger debt than it has authority to contract, or because it expects to levy an illegal tax next September, is no reason to contend that a tax levied last September, which is legal in every respect, was "levied or attempted to be collected without authority of law."

The board has the authority to make the very contract which the bill complains that they intend to make. The board had unlimited power to make contracts for the erection of court houses. Code 1906, § 313 provides that if a new court house shall be required in any county, the board shall determine the material, the dimensions, and the plan thereof, and may make the necessary contracts for the erection and for the furnishing of the materials, and may appoint commissioners to superintend the same.

The only limitation on the power of the board to make such a contract is that a court house shall be required, and the board is the sole judge of this. It had decided that the present court house of Newton county is inadequate to the needs of the county and for the preservation of the records, and there is not even an intimation in the bill that the present court house is adequate to the needs of the county and for the preservation of the records or that a new court house is not required. Therefore if the statute is to be upheld, the board has the right to determine the material, whether of wood, brick, cement or stone, and the dimensions, whether of one or five stories high, and the plan, whether it calls for one or five hundred thousand dollars, and to make the contract for the erection of the house out of the materials and of the dimensions and according to the plan determined upon by the board.

The petition of the appellees is that the court should read into Code 1906, § 313 the limitation that the contract price of the new court house with the current expenses of the county shall not exceed the total amount of taxes that will be produced by a twelve mill levy. If the legislature intended this, why did they not say so, and on what principle can the court add to or detract from the plain and unambitious terms of the statute?...