Yazoo & M. V. R. Co. v. Bolivar County
| Decision Date | 16 October 1939 |
| Docket Number | 33827 |
| Parties | YAZOO & M. V. R. CO. v. BOLIVAR COUNTY et al |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled November 13, 1939.
APPEAL from the circuit court of Bolivar county WM. A. ALCORN, JR. Judge.
Suit to recover taxes paid under protest by the Yazoo & Mississippi Valley Railroad Company against Bolivar County and others. From the judgment, the plaintiff appeals. Affirmed.
Affirmed.
Shands Elmore, Hallam & Causey, of Cleveland, R. C. Beckett, of Chicago, Illinois, and C. H. McKay and Lucius E. Burch, Jr. of Memphis, Tennessee, for appellant.
The levy of one mill for "public health" was a general county purpose levy. We are mindful of the decision of this court rendered in case of Board of Supervisors of Attala County v. Illinois Central Railroad Company (Miss.), 190 So. 241, wherein this court held that a one mill tax levied for the support of county paupers did not come within the maximum levy which a county may make for general county purposes because a levy for the support of paupers was a special levy for a special purpose and was not controlled by a statute dealing with levies for general county purposes.
Paupers are a definite class of people. They are people who are so poor that they must be supported at public expense, then when they die they are buried at public expense. This class of people is so well recognized that we have a code chapter dealing with them, Chapter 144, Code 1930.
We think that the case at bar is clearly distinguishable from the Attala County case, recently decided, because the levy about which we complain for "Public Health" was not a levy for a special class of people, but was a levy for the whole county; in fact it appears in the order of the board of supervisors along with the general county "maintenance" levy under the heading "Common County" purpose, showing that it was a levy for the whole county--for the people at large and not for a special class. This levy for "Public Health" was really a part of the county maintenance levy, and ought to have been included in the five mill levy for "Common County Maintenance."
The conservation of the health of the people of a county is a matter in which all of the people of the county are vitally interested. The legislature has recognized the importance of the matter to such an extent that legislation has been enacted authorizing the establishment of a "Department of Health" in each county, or where one county is unable on account of its size or lack of finance to establish such department, then two or more counties may join and establish such department for the benefit of the people of such counties.
Code of 1930, Sections 4926, 4927, 4928, 4929, and 4930.
The courts have recognized that the preservation of the health of the people is a public duty.
Keefe v. Town of Union, 56 A. 571, 574.
Counties must have statutory authority to lay a tax; otherwise they do not have it.
61 C. J. 81; Spitzer & Co. et al. v. Monroe County et al., 274 F. 819, 824.
The levy for public health was a current expense of the county under Section 2, Chapter 104, Laws 1932. The Public Health Department of the County is one of the governmental departments of the county, functioning for the whole county, and the tax levy of one mill was made for a general county expense.
Seaboard Air Line Ry. Co. v. Wright (Ga.), 128 S.E. 235; State v. Board of Education, 53 A. 236, 237; St. Louis-San Francisco Ry. Co. v. McIntosh (Okla.), 229 P. 1064.
In Missouri-Kansas-Texas R. Co. v. Bennett (Okla.), 250 P. 1021, it was held that where the statute authorized a tax levy for "current expenses" and for "cemetery purposes" which exceeded the statutory levy was void because the expenses for the operation of the library and the care of the cemetery came within the term of "current expenses" of the city. The court said that current expenses "is clearly intended to mean all character of expenses or levies, unless the legislature has by a clear direction given authority to the levying boards to fix a rate over and above the six-mill limitation."
Taylor v. Mayo, 110 U.S. 330, 28 L.Ed. 163, 166; Acme Milling Co. v. Bonaparte (Okla.), 257 P. 284; Murray v. Ryan (Okla.), 257 P. 285; McMillian et al. v. Tucker, etc., 113 S.E. 391, 398.
The Board of Supervisors was limited to a levy of five mills for "all general county purposes" which should have included the levy for "public health." The well recognized rule is that, if the statute does not provide that the special levy shall be in addition to the levy authorized by general statute for general county purposes, then the special levy shall be deemed to be a part of the general levy.
People v. Baltimore & Ohio S.W. R. Co., 194 N.E. 568, 569; St. Louis-San Francisco R. Co. v. McIntosh, etc., 229 P. 1064, 1067; Peterson v. Kittredge, 65 Miss. 33, 38, and 39; Beck v. Allen, 58 Miss. 143; People ex rel. v. Cleveland C. C. & St. L. Ry. Co., 129 N.E. 164, 165, and 166; People v. Cairo & T. P. R. Co., 149 N.E. 824, 826; Great Northern Ry. Co. v. Stevens County, 183 P. 65, 66, 67; Oconto Co. v. Town of Townsend (Wis.), 244 N.W. 761, 762, 763; Wells v. McNeill, 93 Miss. 407, 48 So. 184; Missouri-Kansas-Texas R. Co. v. Bennett (Okla.), 250 P. 1021; People ex rel. v. Chicago & E. I. Ry. Co. (Ill.), 129 N.E. 846; People ex rel. v. L. & N. Ry. Co. (Ill.), 133 N.E. 340; People ex rel. v. I. C. R. R. Co. (Ill.), 133 N.E. 779; People ex rel. v. Alton & Eastern R. R. Co. (Ill.), 194 N.E. 573, 575; People ex rel. v. B. & O. S.W. R. Co. (Ill.), 194 N.E. 568, 569; McIntosh County v. Seaboard Air Line Ry. Co. (Ga.), 144 S.E. 687.
It is worthy of consideration that in the past when the legislature of Mississippi has authorized the levy of a special tax, it has in each instance, stipulated that such tax shall not come within the limitations of the general laws fixing the maximum levies, but that such special tax shall be in addition to the maximum levies stipulated in general laws, thus placing the same interpretation on the tax laws for which we herein contend. We shall call attention to some of such statutes.
Chapter 315, Laws 1938; Chapters 402 and 413, Local and Private Laws, 1938; Chapter 299, Laws 1938 (Reg. Ses.); Chapter 255, Laws 1936; Chapters 50, and 60, Laws 1938 (Ex. Sess.); Chapter 420 (Local and Private Acts), 1936; Chapter 274, Laws 1936; Chapters 316 and 317, Laws 134; Chapters 693, 698, 707, 708, 711, Local and Private Laws, 1934; Chapters 378, 400, 410, 411, 413, 415, 421, 422, 432, 435, 451, 452, 457, 460, 462, 464, Local & Private Laws, 1936; Chapters 345, 346, 347, and 348, Laws 1920.
We contend that the only logical conclusion to reach is that the general authority granted by Chapter 315, Laws 1938 (Reg. Sess.) to make a special levy for indigent sick and public health does not authorize an additional tax for such purposes. If the latter statute authorized an additional tax to treat indigent sick and to promote public health, then we have a situation where a county of less than eight million assessed values and no bonded indebtedness, under Section 2, Chap. 104, Laws 1932, may levy as much as 10 mills for general county purposes, and then an additional one mill for a full time health unit and then still another one mill for indigent sick and public health, a total of 12 mills, exclusive of levies for roads, bridges, schools, and general county bonds and interest. Thus a county of that class would be authorized to make two levies of one mill each for "Public Health."
To obviate any such situation and to make effective all of the foregoing statutes [Section 2, Chap. 104, Laws 1932 and Chap. 28, Laws 1938 (Ex. Sess.)], we contend that the only additional tax provided by these statutes, is the one provided for the full time health unit; that Chapter 315, Laws 1938 (Reg. Sess.) was only enacted for the purpose of making it clear that a levy could be made for public health and support of indigent sick, if the necessary funds could be obtained without exceeding the general county limitation.
It is a well recognized rule that the repeal of a statute by implication is not favored, but when both statutes are construed and the provisions of the former statute are repugnant to the latter, then the former statute is deemed repealed to the extent of the repugnancy.
Russell v. State, 176 Miss. 853, 169 So. 654; Miss. State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168; Ascher & Baxter v. Moyse & Co., 101 Miss. 36, 57 So. 299; Ex parte McInnis, 98 Miss. 773, 54 So. 260; Pons v. State, 49 Miss. 1; State ex rel. v. Board of Commissioners, etc. (Kans.), 119 P. 327, 329.
One mill levy comes within limitations of Chapter 104, Laws of 1932, because it was a levy for a general county purpose.
A tax levy for the promotion of public health is not for a local purpose, because such a levy directly promotes the welfare of the community rather than individuals.
1 Cooley on Taxation (4 Ed.), Sec. 202, p. 430; Davoch v. Moore, 63 N.W. 424, 429; Hunter v. Owens, 80 Fla. 812, 86 So. 839; Board of Commrs., etc. v. Peter, 253 Mo. 520, 161 S.W. 1155, Ann. Cas. 1915C, 310; Sacramento County v. Chambers, 33 Cal.App. 142, 164 P. 613; Le Bourgeois v. City of New Orleans, 145 La. 274, 82 So. 268; Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508.
Tax levy for support of paupers is for benefit of a special class of people, and is not for a general county purpose.
Board of Supervisors of Attala County v. I. C. R. R. Co., 190 So. 241; 61 C. J., page 90, Sec. 20, and page 91.
To be for a general county purpose the tax must affect the inhabitants as a community and not merely individuals or particular objects.
Stanley v. Jeffries (Mont.), 284 P. 134, 138; People v. Salem etc. (M...
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