Brandt v. Murphy

68 Miss. 84

• Court: Mississippi Supreme Court
• Decided: October 15, 1890
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the court.

The fund which it is sought in this proceeding to require the appellee to pay to appellant is admitted by the demurrer to be the product of a tax illegally levied upon and collected from the taxpayers of the town and separate school district of Pass Christian ; and it is admitted, further, that the board of supervisors of Harrison county, upon a proper application made by the official representative of these wronged tax-payers, has made an order waiving and disclaiming all interest in and right to this fund, and directing its custodian, the appellee, to pay it over to the representative and agent of those persons from whom, by the board’s unlawful order in making the levy, it had been collected wrongfully.

The board of supervisors has, by a formal order, declared that this fund is wrongfully held in the county treasury, and has appropriated it to those from whom it was improperly taken, and we see no difficulty in sustaining the board’s action, in this matter, touching a fund to which the county is shown to have no legal right, and to which, ex aequo et bono, the wronged tax-payers, or their official representative and agent, are clearly entitled.

Tbe board of supervisors having waived and relinquished all claim to the fund, and justly and properly, as we think, to whom shall it pass unless to those from whom it was originally taken ? The order of the board, and-the judgment of the court, under this opinion, will constitute full and complete protection to the appellee in paying over the money as prayed in the petition.

It may be proper to add, that the appellee having formally signified his purpose not to pay over, as directed by the order of the board of supervisors, there was no necessity on appellant’s part to wait the expiration of the sixty days, and hence, the suit was not prematurely brought. And, furthermore, the sum demanded is for a sum certain, clearly and specifically shown by the petition and its exhibits, and admittedly correct by the demurrer.

Reversed and remanded.