Wells v. McNeill

48 So. 184, 93 Miss. 407

Opinion

Edward Mayes, Special Judge,

*

delivered the opinion of the-court.

The bill in this cause shows that the board of supervisors had levied a tax of four and one-half mills for the purpose of erecting a new courthouse; that such levy, added to the other levies made, aggregated the full tax authorized by the act of 1908 (Laws 1908, p. 56, c. 72), being eighteen mills; that the board had advertised for proposals to build the new courthouse, on the. basis of a structure to cost not less than $30,000 nor more than $50,000 and were about to contract on that basis; that a proposal to issue bonds had been rejected by the people; that the-four and one-half mills levy would yield only $19,000; and that therefore the excess of cost over that sum would have to-be paid out of levies made in future years. Wherefore the tax is unlawful, and an injunction was obtained against the tax collector. A demurrer to this bill was overruled, and from that order the tax collector prayed this appeal.

The effort on the part of the appellant is to distinguish this case from the decision in Monroe Co. v. Strong, 78 Miss. 565, 29 South. 530. It is said that sections 313 and 324, of the-Code of 1906 control, and lead to a different result, since here-the question is of a courthouse, while there is was a bridge. The sections so relied on are as follows:

“313. Shall Remodel, Repair and Erect'Courthouse and Jail When Necessary. — If a new courthouse or'jail shall be required in any county, or if the courthouse or jail shall need remodeling, enlarging, or repairing, the board of supervisors shall determine the material, the'dimensions, and the plan thereof, and may make the necessary contracts for the erection, remodeling,, enlarging, or repairing thereof, and for furnishing the materials, and may appoint one or more commissioners to superintend the work as it progresses, who shall take care .that the' proper materials are furnished, and the work faithfully performed according to contract, and who-, for their services, shall receive a reasonable compensation.”

“324. May Levy Special Tax. — The board of supervisors of any county may levy a special tax for the erection, remodeling, enlarging or repairing of the courthouse, jail or other county buildings, and the order making such special levy shall designate the objects for which the levy is made, and the fund shall be applied to no other purpose.”

It is contended that section 313, by necessity, gives the board incidentally the power to fix the cost of a courthouse, and that such power is beyond the reach of the courts by way of review. That is true; but the power to contract there conferred has reference only to the contract to build, with the secondary contracts auxilliary thereto. The section means exactly what it says, and no more than what is necessarily included. It has no aspect towards the ways and means for payment, nor to any matter of taxation: Section 324 does not deal with the power to tax. But that power was not a vested right in the board, and was subject to legislation. We understand the restriction laid by the act of 1908 (Laws 1908, p.- 56, c. 72) to be, just what its terms most simply express, mandatory and general that in no-case shall the state and county levies exceed eighteen mills in any one year. This prohibition includes those levies called special, and those for extraordinary purposes. It is not by construction to be limited to a prohibition of heavy current and annual expenses only. The courthouse tax authorized by seciton 324 is a special tax, because, when levied, the proceeds are applicable to that purpose alone; but, because it is special, it is not therefore freed from the limitation fixed by the salutary law of 1908.

But it is said that the levy made in this instance is lawful, because it, taken with all other levies, does not exceed eighteen mills; that it is within that limit. This is true; but also it is true that the proceeds of such levy will not pay for the courthouse, even if the contract be placed at the minimum of $30,000. There must as an admitted fact, be a shortage of over $10,000, which, if paid at all, must be met by some future levy. This course is not permissible under these statutes; The only way in which a burden of future taxes can be laid on the people is that prescribed by section 331, which provides for the issuance of courthouse (and similar) bonds, but reserves to the electors the right to express their will by an election. It might easily happen that the values of a county are so large and its current expenses so small by comparison that one year’s, special tax at a rate within the limit fixed by the act of 1908 would raise the amount needed for a new courthouse. In such case there would be no need of a bond issue or for an election. But, if it be proposed to raise an amount which will involve a need for future taxation, the bonding scheme of section 331 must be employed.

The order of the chancellor overruling the demurrer to the bill is therefore affirmed, and cause remanded, with leave to answer within sixty days.

Affirmed.

Fletcher, J., being disqualified to preside in tbis case, because of bis connection with tbe controversy while attorney-general, recused bimself, and Edward Mayes, Esq., a member of tbe supreme court bar, was appointed to and did preside in bis place.