Burke v. Leggett

Holden, J., delivered the opinion of the court. •The board of supervisors of Wayne county, at its November, 1916, meeting, made a tax levy of.ten mills as “General County Tax,” and, it appearing to the board that this was a clerical error or mistake made in recording the levy in the minutes of the meeting, corrected the error by changing or amending this tax levy at its following December meeting so that the said ten-mill levy appeared as “General County Tax Levy” seven and one-fourth mills, and “Courthouse Special” two and three-fourths mills. The appellant tax collector was enjoined by appellee taxpayers from the collection of the two and three-fourths-mill tax on the ground that the two and three-fourths-mill tax was void because the order making the levy failed to designate the objects for which the levy was made, as required by section 324, Code of 1906, section 3697, Hemingway’s .Code,- which reads as follows: ' “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.” The case was tried in the court below upon the pleadings of both parties showing and admitting that the change of the ten-mill levy to two and three-fourths “Courthouse Special” and seven and one-fourth “General County Tax Levy” by the board at its December meeting was a mere correction of an error in the November minutes to show the true levy made at the November meeting. The appellant now contends here that the November levy is valid and that the change or correction in December is void because the board had no power to alter the November levy at the subsequent meeting; and that, if mistaken in this view, [667] then the levy of two and three-fourths mills as “Courthouse Special” is valid, as the requirement of the statute that the purposes for which the levy is made must he designated by the order is directory and not mandatory. Waiving here the point that the appellant is bound by his pleadings and proof in the lower court, we think the harmless change or correction in the November levy made by the board at its December meeting was legal, since it was a mere correction of an error in, the prior order, and, after all, only amounted to a reduction of the ten-mill “General County Tax” levy to seven and one-fourth mills, about which no one can be heard to complain. McCready v. Lansdale, 58 Miss. 877. We say it amounted to a reduction of the prior levy of ten mills for the reason that the two and three-fourths-mill levy for “Courthouse Special” is unquestionably void because the order of the board failed to designate the objects for which the levy was made. The statute, section 324, Code of 1906, is mandatory and not directory. The power to make the levy is given by this statute, which provides clearly that the purpose of the levy shall be designated. The order for “Courthouse Special” does not comply with it. The order should have at least designated one of the purposes or objects named in the statute for which the levy was mede. The decision in Coulson v. Harris, 43 Miss. 728, holding that the order need not designate the objects of the special levy, is correct under the statute then before the court (article 22, p. 417, Code of 1857), because that statute did not provide that the purpose of the special levy must be designated in the order making it. Section 324 now before us does so provide, is mandatory, and must be followed. Affirmed.