Board of Supervisors v. Gulf & S. I. R. R.

Smith, C. J., delivered the opinion of the court. The board of supervisors of Lamar county, acting under chapter 172, Laws of 1916 (section 7155, Hemingway’s Code), levied a tax of five mills for road purposes. Appellee paid the amount demanded by the tax collector from it under this levy, but, claiming that the levy was two mills in excess of the amount which appellant was authorized to levy, instituted this suit in a court of a justice of the peace to recover 'this alleged excess. When the case reached the court below by appeal from the court of the justice of the peace, appellant filed a written demurrer to appellee’s statement of its cause of action, which demurrer was overruled. Thereupon appellant filed a written plea of the general issue upon which the cause proceeded to trial resulting in a verdict and judgment for appellant. Appellee then filed a motion, praying that this judgment be set aside and that judgment be rendered for it, non obstante veredicto, which motion was sustained, the judgment first rendered set aside, and a judgment rendered in appellee’s favor for the amount sued for. Appellee’s contentions are: First, that although chapter 172, Laws of 1916 (section 7155, Hemingway’s Code), under which the tax here in question was levied, imposes no limitation upon the amount thereof which may be levied by hoards of supervisors, such boards are limited by section 4469, Code of 1906 (section 7143, Hemingway’s Code), to a levy of three mills for road purposes, which limitation applies to the taxes levied under the statute here in question; second, if this is not true, then chapter 172, Laws of 1916 (section 7155, Hemingway’s Code), is unconstitutional. Both of these contentions are ruled against appellee by Ellis v. Donnell, 112 Miss. 129, 72 So. 878, Lang v. Board of Supervisors, 114 Miss. 341, 75 So. 126, and Martin v. Little, 115 Miss. 195, 76 So. 142. [263] The case of City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703, supports appellee’s contention, but that case, though not referred to therein, was necessarily overruled by the three cases hereinbefore cited. There is another reason why appellee’s motion should have been overruled, and that it that: A motion for a judgment non obstante veredicto will lie only “where, after a pleading by defendant in confession and avoidance, . . . and issue joined thereon, and verdict found for the defendant, the plaintiff, on retrospective examination of the record, conceives that such plea was bad in substance, and might have been made the subject of demurrer on that ground. If the plea was itself substantially bad in law, of course the verdict, which merely shows it to be true in point of fact, cannot avail to entitle the defendant to judgment; while, on the other hand, the plea, being in confession and avoidance, involves a confession of the plaintiff’s declaration, and shows that he was entitled to maintain his action. In such case, therefore, the court will give judgment for the plaintiff without regard to the verdict.” Heard’s Stephen on Pleading, page 97. The judgment of .the court below will be reversed, and the original judgment rendered in favor of appelant will be reinstated. Reversed and judgment here.