City of Bay St. Louis v. Hancock County

Smith, O. J., delivered the opinion of the court. This is a proceeding, begun before the hoard of supervisors of Hancock county and appealed therefrom to the court below, in which the appellant seeks to recover from the board of supervisors of Hancock county one-half of certain road taxes collected by the county on property situated within the appellant municipality. The cause was tried on an agreed statement of facts, from which it appears: “That the city of Bay St. Louis is an incorporated city in Hancock county, and the streets of said city are worked at the expense of the city treasury and by municipal authority. That Hancock county by proper order of the board of supervisors is operating under sections 4465 to 4475, both inclusive, Code 1906, and also under chapter 150 of the Laws of 1919' and amendments thereto, . “That two of the orders of the board of supervisors fixing their levy of taxes for the year 1918 is as follows :■ “ ‘Ordered by the board that a tax of two mills (2) be and the same is hereby levied upon all the taxable property of this county for the fiscal year 1918 for road and bridge purposes and to be paid into the county treasury to the credit of the road and bridge fund. ’ • “ ‘Ordered by the board that a tax of three mills (3) he and the same is hereby levied upon all taxable property of this county for the fiscal year 1918 for road purposes and to be paid into the county treasury to the credit of the road fund. ’ “. . . It is agreed that taxes under said orders for road and bridge purposes were levied and collected upon all property in the county, including all property within the incorporated limits of the city of Bay St. Louis. [880] “It is further agreed that the amount collected by the county on the property in the city of Bay St. Louis for the fiscal year 1918 and paid into the county road fund is four thousand, three hundred and eleven dollars and twenty-four cents, and the amount collected by the county on property in the city of Bay St. Louis and paid into the cohnty road and bridge fund is two thous- and, eight hundred and seventy-four dollars and sixteen cents, and that none of said funds or any other fuds were spent by the county on the city streets. “That the city of Bay St. Louis presented its bills to the board of supervisors for one-half of , said ad valorem taxes collected by the county and paid into the treasury of the.county to the credit of said funds, less the commissions paid to the tax collector, and that a copy of said bills which are correct in amounts are attached hereto and made part of this agreement; Exhibit A being a claim of said city for one-half of the ad valorem tax collected on the property in the city for road purposes and placed to the credit of the road fund, Exhibit B being the claim of said city for one-half of the ad valorem tax collected on property in the city for road and bridge purposes and placed to the credit of the road and bridge fund. It is further agreed that a warrant was issued to the city of Bay St. Louis in the amount of two thousand dollars and ninety-fivé cents in payment of that portion of the claim of the city covered by Exhibit A, and that 'portion of the claim covered by Exhibit B was refused and rejected. This suit is brought for that .amount (one thousand, three hundred and ninety-three dollars and ninety-seven cents). It is agreed that the city may cash said warrant of two thousand dollars and ninety-five cents, and that no advantage will be taken by the county for so doing, either as a defense or bar to this suit or claim for other ad valorem taxes.” The contention of the county is that the order by which the two-mill tax was levied was adopted under [881] chapter 150, Laws of 1910, and its amendments (Hemingway’s Code, section 7151 et seq.), and that the order by which the three-mill tax was levied was adopted under section 4469, Code of .1906 (Hemingway’s Code, section 7143) as amended by chapter 140, Laws of 1918; that this last-named statute does not'require one-half of the taxes collected by a county on property within a municipality to be paid into the city treasury; consequently it is under no obligation so to do. The contention of the city is that it is entitled to one-half of all of the road taxes collected by the county on property situated within the city limits, and this proceeding is for the collection of one-half of the tax collected under the two-mill order; one-half of the tax collected under the three-mill order having been paid to it. No question which could arise on this record has received any consideration by us, except the one and only contention of the appellant, to which this opinion must be limited, that the provision of section 4469, Code of 1906 (Hemingway’s Code, section 7143), directing that one-half of the road tax collected by a county on property within a municipality shall be paid into the municipal treasury, must be read into chapter 150, Laws of 1910, as it now appears in Hemingway’s Code, section 7151 et seq., and chapter 140, Laws of 1918, and although this last-named statute- contains -no such provision, nevertheless one-half of the taxes collected thereunder by a county on property within a municipality must be paid into the municipal treasury under the provision of the Code section so requiring. This contention finds support in the case of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703, wherein it was held that chapter 150, Laws of 1910, “does not provide a full or complete scheme for raising funds,” and that the provisions of the Code section here under consideration were applicable thereto. In [882] 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, it was held that chapter 150, Laws of 1910, as amended, which amendments have no bearing on the point here under consideration, does provide a full and, complete scheme for raising funds, and that the provisions of the Code section here under consideration have no application thereto. These cases were followed, in Lamar County v. Railroad Co., 118 Miss. 243, 79 So. 90, and it was there pointed out that the Holly Springs Case was necessarily-overruled by them, but that it may no longer mislead, it is hereby expressly overruled. Chapter 150, Laws of 1910, as it now appears in chapter 140, Laws of 1918, contains no provision that one-half of the taxes collected by a county thereunder on property in a municipality shall be paid into the municipal treasury; consequently under the cases hereinbefore-cited it is under no obligation to do so. It may be, as contended by counsel for the appellant, that it does not appear from the record which of the orders levying taxes was adopted under the Code section, and which under chapter 150, Laws of 1910, as' it now appears in chapter 140, Laws of 1918, as to which we express no opinion, but if it be true that it does- not so appear, the appellant can still recover nothing, for in order for it to recover it must appear that the appellee withholds from it its share of taxes collected under the Code section, and if it does not so appear the payment heretofore made by the appellee to the appellant may have been of grace and not of right. We are relieved, however,- of any trouble along this line by the appellee’s admission that the three-mill tax was collected under the Code section. Affirmed.