Wilson v. Jones County Bd. of Sup'rs

• Citation: 342 So.2d 1293
• Decision Date: 12 January 1977
• Docket Number: No. 49484,49484
• Parties: Francis M. WILSON v. JONES COUNTY BOARD OF SUPERVISORS.
• Court: United States State Supreme Court of Mississippi

Page 1293

342 So.2d 1293

Francis M. WILSON v. JONES COUNTY BOARD OF SUPERVISORS.

No. 49484.

Supreme Court of Mississippi.

Jan. 12, 1977.

Rehearing Denied March 23, 1977.

Andalman, Bergmark, Adelman & Steiner, Alison Steiner, Hattiesburg, for appellant.

Leonard B. Caves, Laurel, for appellee.

J. Marshall Lusk, Jr., Jackson, on brief for Mississippi Assn. of Supervisors, amicus curiae.

Before PATTERSON, SUGG and WALKER, JJ.

SUGG, Justice, for the Court.

The Jones County Board of Supervisors levied an additional two mill ad valorem tax for general county purposes on September 9, 1975 authorized by Mississippi Code Annotated section 27-39-304 (Supp.1976). ¹ Appellant appealed the board's action to the Circuit Court of the First Judicial District of Jones County, contending that the statute authorizing the additional two mill levy is unconstitutional. The circuit court dismissed the appeal and appellant appealed to this Court.

The primary question on this appeal is whether the provisions of 27-39-304 authorizing the Board of Supervisors of Jones County to levy an additional two mill ad valorem tax for general county purposes, in addition to the levy for general county purposes authorized by Mississippi Code Annotated section 27-39-303 (Supp.1976) violates Section 112 of the Mississippi Constitution of 1890.

Appellant attacks the portion of section 27-39-304 which reads as follows:

(F)urther, that the board of supervisors of any county having a population in excess of fifty-nine thousand five hundred forty (59,540) in the 1960 federal decennial census and being traversed by U.S. Highway 11 which intersects U.S. Highway 84 may, in its discretion, levy an additional two (2) mills or any portion thereof, which additional levy would be for one year, . . ..

Appellant correctly asserts in his argument that the quoted portion of the statute can apply only to Jones County. He argues that the fact that two named highways intersect in a county having a population in excess of 59,540 in the 1960 census does not bear a rational relationship to that county's needs in terms of ad valorem tax rates for general county purposes. He further argues that the quoted language of section 27-39-304 neither distinguishes Jones County from any other county falling within the same classification as defined in section 27-39-303 in terms of ad valorem tax needs for general county purposes, nor bears a rational relationship to the purpose of section 27-39-304, and therefore violates Section 112 of the Mississippi Constitution of 1890.

Section 112 requires uniform and equal taxation throughout the state. The legislature has provided that property is to be assessed for ad valorem tax purposes in the counties of the state by the tax assessor in each county and that the assessments are to be equalized by the board of supervisors of the respective counties. In addition to providing for a uniform manner of assessing property for ad valorem taxation and equalizing assessments, the legislature, in Mississippi Code Annotated section 19-3-41 (1972) gave to the boards of supervisors the duty of levying the taxes necessary to meet the requirements of their respective counties, not exceeding the limitation prescribed by law. Section 19-3-41, in varying language, has been a part of the statutory law of this state since 1848 and was enacted under the authority of Section 170 of the Constitution of 1890 and its forerunners. Section 170 provides that boards of supervisors may be required to perform the duties which may be required by law.

In Y. & M.V.R. Co. v. Claiborne County, 191 Miss. 277, 2 So.2d 548 (1941) we noted that, before 1932, the legislature at each session imposed a limitation on the amount of tax which a county could levy. This method of limiting the millage rate which a board of supervisors could levy was changed by Chapter 104, Laws of 1932 (now Mississippi Code Annotated section 27-39-301 (1972)). It provides that a governing authority, having the power to levy ad valorem taxes, may not make a levy in excess of the limitation provided by the chapter after the expiration of the fiscal year ending September 30, 1932. The statutory plan for assessment of property for ad valorem tax purposes and for limiting the amount of the tax levy, or millage rate, is a comprehensive plan insuring uniform and equal and valorem taxation throughout the state.

Mississippi Code Annotated section 27-39-303 (Supp.1976) is the authority for boards of supervisors to levy taxes in their respective counties for general county purposes. This section authorizes a tax levy based on assessed valuation of property located in the county. The rate varies from twelve mills in counties having an assessed valuation of less than $3,000,000 to six mills in counties having an assessed valuation of $20,000,000 or more. A limitation was placed on the millage rate that could be levied by boards of supervisors by classifying the counties according to assessed valuation. We are of the opinion that the classification contained in section 303 bears a rational relationship to the purpose of securing uniformity and equality in ad valorem taxation.

The first question is whether the designation of Jones County for different treatment from other counties by reference to highways and the 1960 census bears a rational relationship to the purpose of section 27-39-304. The general rule is that when a taxation statute makes a classification which causes it to operate on only a limited number of persons or in a single geographical area, the classification must be based on some reasonable ground and some real difference which bears a just and proper relation to the object sought to be accomplished. Walker v. Board of Supervisors of Monroe County, 224 Miss. 801, 81 So.2d 225 (1955). In Culley v. Pearl River Industrial Commission, 234 Miss. 788, 108 So.2d 390 (1959), we held that the equal and uniform requirement relates to the levy of taxes and held further that since the classification of the Pearl River District was valid and proper, the contingent levy authorized did not fall within the prohibition set forth in Walker, supra.

The purpose of section 27-39-304 is to permit additional taxes for general county purposes when the tax levy authorized by section 27-39-303 is insufficient to produce enough revenue to pay the general operating expenses of a county. Section 304 authorizes any county having an assessed valuation of less than $8,000,000 to levy no more than two additional mills and any county having an assessed valuation of more than $8,000,000 to levy no more than one additional mill for general county purposes.

The last paragraph of the section prescribes the manner in which the additional millage rate may be imposed. It requires the board of supervisors to publish notice of its intention to levy the additional rate, and if the required number of qualified electors file a written protest against the making of the additional levy, then an election on the question of making the levy may be called and held. If no protest is filed, then the additional levy may be made without an election. However, after a protest is filed the board of supervisors may, in its discretion, decide not to call an election on the question of the additional levy in which event it may not make the additional levy.

The exception to the general classification quoted in paragraph three of this opinion is an attempt to single out Jones County for different treatment from other counties falling within the same classification based on assessed valuation. The designation of Jones County by referring to highways and the 1960 census does not bear a rational relationship to the purpose of section 27-39-304. We therefore hold that the quoted portion of section 27-39-304 violates Section 112 of the Mississippi Constitution. There are eleven other exceptions in the section subject to the same constitutional infirmity.

The next question is whether the invalid part of the statute is separable from the valid part, and after the invalid part is stricken out, will a complete and consistent plan for an additional levy remain?

It is the Court's duty in passing on the constitutionality of a statute to separate the valid from the invalid part, if this can be done, and to permit the valid part to stand unless the different parts of the statute are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all cannot be carried into effect it would not have enacted the residue independently. Howell v. State, 300 So.2d 774, 781 (Miss.1974); American Express Co. v. Beer, 107 Miss. 528, 536, 65 So. 575 (1914); Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910); Campbell v. Miss. Union Bank, 7 Miss. 625 (1842).

In Adams v. Standard Oil Co., we held that an exception to confederate soldiers from an act imposing a privilege tax was unconstitutional, but the unconstitutional exemption could be stricken out leaving a complete and consistent privilege tax which the legislature would have passed. The rule was stated as follows:

It is contended, however, for the appellant, that if...