Yazoo & M. V. R. Co. v. Grenada County

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, C. J.
• Citation: Yazoo & M. V. R. Co. v. Grenada County, 76 So. 154, 115 Miss. 238 (Miss. 1917)
• Decision Date: 21 May 1917
• Docket Number: 19659
• Parties: YAZOO & M. V. R. CO. v. GRENADA COUNTY ET AL

76 So. 154

115 Miss. 238

YAZOO & M. V. R. CO. v. GRENADA COUNTY ET AL

No. 19659

Supreme Court of Mississippi

May 21, 1917

Division A

APPEAL from the circuit court of Grenada county, HON. H. H. RODGERS Judge.

Suit by the Yazoo & Mississippi Valley Railroad Company against Grenada county and others to recover taxes paid under protest. From a judgment sustaining a demurrer to the declaration and ordering money to be paid to the county plaintiff appeals.

The declaration in this case was filed by the appellant for the purpose of recovering certain taxes paid by it, under protest. The declaration alleges that the board of supervisors of Grenada county levied taxes for the year 1916 upon property assessed for taxation in said county as follows: six mills for state purposes, eight mills for payment of loan warrants and interest due thereon January 1 1917; four mills for interest and charges and sinking fund on outstanding bonds of said county; four mills for general county expenses; two mills for road purposes; one and one-half mills for school purposes--making a total levy of twenty-five and one-half mills; and a further and additional levy of two and one-half mills was made for interest charges and sinking fund on consolidated district bonds and one-half mill for school purposes to be fixed and levied on all taxable property of the Holcomb consolidated school district of said county; making a total in that district of twenty-eight and one-half mills. It is also alleged that the sheriff and tax collector of said county demanded payment of taxes on the property of the appellant at the rate levied as aforesaid, and that appellant paid the taxes under protest to prevent the sale of its property for taxes. It is alleged also that the board was without authority in law to levy taxes in said county, including the state tax of six mills and excluding the road tax, school tax, courthouse tax, and agricultural high school tax, in excess of sixteen mills on the dollar, and that all taxes levied in excess of said limitation were void and without authority of law, and that there was no courthouse tax and agricultural school tax in said county, and that the levy fixed by the board, exclusive of road tax and county common school tax, exceeded the limitation of sixteen mills on the dollar, as provided by the acts of the legislature of Mississippi (chapter 85, Laws 1916) which provides as follows:

"Be it enacted by the legislature of the state of Mississippi that the state ad valorem tax is hereby fixed at six (6) mills on the dollar for the year 1916, and at six (6) mills on the dollar for the year 1917. The board of supervisors may levy taxes for all purposes (exclusive of road, courthouse, county common school and agricultural high school), which, added to the state tax, will make sixteen (16) mills on the dollar for the year 1916, and sixteen (16) mills on the dollar for the year 1917, and no more."

It is alleged also that the road tax of two mills levied by the board is unlawful, because in excess of the amount authorized by section 4443 of the Code of 1906, which provides that:

"The board of supervisors, in case the labor and commutation for labor provided be found insufficient for the working of roads by contract, may levy an additional tax, the same to be upon all the taxable property in the county, and not to exceed one mill on the dollar in any one year, and to be collected as other taxes."

There was a demurrer to the declaration, in which the county sets up the fact that the additional levy of taxes made by the board was exempted from the provisions of chapter 85 of the Laws of 1916, for the reason: First, that the additional road tax was levied to meet the needs of the roads of the county, which were worked under section 4469 of the Code of 1906, which provides for the levy of an "ad valorem tax not to exceed three mills on the dollar in any one year;" and, second, because chapter 85 of the Laws of 1916 did not mean to include within its limitations the amount of special levies provided for by sections 331 and 334 of the Code of 1906 for meeting and paying valid outstanding obligations of the county, and if such limitation were intended to apply to the levy of taxes to meet such obligations, then the law would be in conflict with the Constitution of the United States and the state of Mississippi, prohibiting the enactment of laws impairing the obligations of contracts. Sections 331 and 334 provide for the levy of a special annual tax to be used exclusively in paying interest on bonds and providing a sinking fund for their retirement, and for the repayment of any loan warrants and interest thereon which any county may execute for the purpose of obtaining money to defray the expenses of the county. From the judgment of the court sustaining the demurrer and ordering the money paid to the county, this appeal is prosecuted.

Affirmed.

Mayes, Wells, May & Sanders and Cowles Horton, for appellant.

The question raised by the third and fourth grounds for demurrer is, whether the limitations prescribed by Laws 1916, are applicable to and cover taxes leviable under sections 331 and 334 of Code of 1906. The answer to this question seems so clear to our mind that were this an appeal by the appellees, we should content ourselves by merely citing the act involved and the decision hereinafter cited, construing the similar Laws of 1908. If the learned court below has correctly interpreted the act in question, then the proper construction is contrary to its express language and is in square conflict with the previous decisions of this court.

The act involved (Laws 1916, ch. 85, p. 73), after fixing the state tax for the years 1916 and 1917 at six mills on the dollar, provides as follows: "The board of supervisors may levy taxes for all purposes (exclusive of road, courthouse, county common school and agricultural high school tax) which, added to the state tax, will make sixteen mills on the dollar for the year 1917, and no more."

Our contention is that this act means exactly what it says, and that the board could levy, excluding the specially exempted taxes, only sixteen mills on the dollar "for all purposes"--"and no more." That all taxes levied in excess of these restrictions are illegal, and that the excessive levy was unwarranted and without authority in law. This interpretation is, indeed, the plain and express language of the act. The words employed are clear, unambiguous, and positive. In such case, we invoke the familiar rule, first in the construction of all written instruments, that the language should control. Hawkins v. Carroll Co., 50 Miss. 759; Peeler v. Peeler, 68 Miss. 147; Wells v. McNeil, 93 Miss. 407.

It is far too late to question the soundness of Wells v. McNeil. Whether the construction of Laws 1908 was sound or unsound and it is clearly the former that construction has been too repeatedly adopted by the legislature to depart from it at this time. Can there be any question, therefore, as to what is included and what is excepted from the limitation of the laws involved? Can the courts, by construction or otherwise, add another exception to the ones fixed by the legislature in exempting certain special taxes from its limitation? The rule expressio unius est, exclusio alterius applies with peculiar force in view of this legislative action. Koch v. Bridgers, 45 Miss. 261. See 90 Am. St. Rep. 447; 7 Idem. 555; 10 L. R. A. (N. S.) p. 135; Dailey v. Swope, 47 Miss. 379; Cooley, Taxation, p. 324; Moore v. Foote, 32 Miss. 479; Beard v. Lee County, 51 Miss. 547; Foote v. Brown, 60 Miss. 161; Monroe County v. Strong, 78 Miss. 571.

An examination of the history of these sections 331 and 334, confirms the view we have taken. Under Code 1871 (Sec. 1382) as construed by this court, the board had the right to make its contracts and allowances upon the basis of credit prices. This rule was changed in 1892, by the adoption of a statute requiring that these things be handled on a cash basis (Sec. 322, Code 1892). This brought about a "radical change" in the state's policy in this regard (78 Miss., p. 574) and of course, this subject received the attention which the change required. At the same time and because of this change, the legislature enacted these sections, then sections 311 and 313, Code 1892. The one was enacted in order that money might be raised by the issuance of long time bonds; the other to secure the money by a short loan; payable on the first day of the next succeeding January and out of the first moneys collected as taxes during that year. The object of these statutes--the very purpose of the change was to decrease, not to increase, the expenses of the county and the burdens of the taxpayer. Laws 1892 providing the tax levy for that year and the next, limited the board to the levy of taxes at twelve and one-half mills on the dollar "for all purposes" including, of course these newly created purposes providing for an additional levy of five mills for counties having outstanding indebtedness. That legislature, therefore changed the old system of county finances, created new authority for the board in order to provide the ready funds and continued, as had been previously done, to provide its limitation as to taxes, "for all purposes." Authority to tax under these new sections (331 and 334 of the present code) created a new "purpose" for which the levy might be made, but, at the same time, the board was still required to keep within the limitations fixed by the biennial revenue laws.

Save for an immaterial change in section 311 (Code 1892) in 1900 these sections of Code 1892 remained untouched from that time until 1904. During that period, the legislature was using the same language in fixing the annual limitations as...