Town of Crenshaw v. Jackson

Ethridge, J., delivered the opinion of the court. The town of Crenshaw recovered a judgment against Panola county, as shown by the report of the case in 115 Miss. 891, 76 So. 741, under an agreed statement of facts therein set forth in full. Afterwards the certified copy of the judgment was presented to the board of. supervisors and the board refused to pay the same, when this suit was instituted against C. P1. Jackson et al., members of the board of supervisors of the county, for mandamus to either compel the board to issue a warrant to pay same or to levy a special tax so as to provide a sum for the payment of said judgment. The board filed an answer setting forth the agreed statement of facts shown (in the above-reported ease, and ,among other things setting forth that the fund upon which the town’s claim was 'predicated was a special fund for the working of public roads, and had been wholly expended for road ¿purposes by warrants issued by tha ¡predecessors- in office of the present board, and that all taxes collected for the years 1907 and 1908 were expended in payment of said warrants for road purposes. It further answered that they were advised that they had no power to issue ■or levy a special tax and that therefore mandamus could not legally issue to control the discretion of the board. [720] Issue was joined on the affirmative matters set up in the answer and it was agreed that the defendants were members of the board of supervisors and that the town had presented a certified coipy of the judgment to the board of supervisors and requested payment or the levy of a special tax, and that before the filing of the petition for mandamus the board of supervisors had rejected the application. It was further agreed that there was no order subsequent to January, 1906', until January 1900', that the hoard had ever adopted. Chapter 123, Code 1906', or section 4496 thereof. The court below dismissed the petition and refused to issue a,mandamus, from which order there is an appeal here. The questions presented for discussion are: Has the county power to pay the judgment' out of the general county fund? If not, is it the duty of the board to issue a special tax to pay the same, and has it the power to do so? In other words, has the board of supervisors power to pay the claim where the board has spent for county purposes the road tax levy in 1907 and 1908 under section 4443, Code of 10106, Hemingway’s Code, section 7123? In our view of the case the money when collected by the sheriff should have been paid into the county treasury, either' by placing it in a separate fund to the credit of the town of Crenshaw or by paying it into the county treasury without specifically setting' it apart to a particular fund, and the municipality is in no wise responsible for the fact that the money was paid into the county road fund and expended by the county on the roads outside of the town of Crenshaw, which was working its own streets. It is different from the.Claim of a person arising under contract to do particular work for which there is a special fund set aside by law. The general county fund is authorized by section.307, Code of 1906’, section 3680, Hemingway’s Code, conferring general jurisdiction on the board of supervisors [721] for numerous purposes, and among other things providing : “They shall have power to levy such taxes as may be necessary to meet the demands of their respective counties, upon such persons and property as are subject to state taxes for the time being, not exceeding the limits that may be prescribed by law. ’ ’ There is no allegation that there were no funds in this general fund;,. neither is there an allegation in the answer that the board had exhausted its power to levy taxes under the limitations prescribed by law. Section 338, Code 1906,. Hemingway’s Code, section 3711, reads as follows: “The board of supervisors shall direct the appropriation of money that may come into the county treasury, but shall net appropriate the same to an object not authorized by law.” Section 311, Code of 1906, Hemingway’s Code, section 3684, reads as follows: “A person having a just claim against any county shall first present the same to the board of supervisors thereof for allowance; and, if the board shall refuse to allow it, may appeal from the judgment of the board to the circuit court, or may bring suit against the county; and, in either case, if such person recover judgment, the board of supervisors shall allow the same, and a warrant shall be issued therefor.” It will be noted that this last section provides that if a claim is presented and disallowed by the board of supervisors either an appeal may be prosecuted to> the circuit court or the claimant may bring suit against the county, “and in either case, if such person recover judgment, the board of supervisors shall allow the same, and a warrant shall be issued therefor.” Chapter 209, Laws of 1918, provides that every municipality and county which has outstanding warrants and other obligations and insufficient funds in the treasury to pay the same is hereby empowered and required [722] to at once prepare to take up such warrants and other obligations from the proceeds of serial bonds which shall be issued for that purpose; and provides that such bonds shall be issued, whether it exceeds the limitation fixed by sections 331, 332,, and 333, Code 1906. Hemingway’s Code, sections 3704, 3705, and 3706, and that no election is required ini such cases, “provided that nothing in this section shall be contrued to require the payment of disputed debts or obligations.” At the time this act was passed the obligation here involved was outstanding and is not paid. It is held- by this court in Y. & M. V. Railroad v. Grenada County, 115 Miss. 238, 76 So. 154, that the statute limiting the taxes which the board of supervisors may levy does not include taxes levied to raise revenue with which to discharge debts incurred under sections 331 and 334, Code 1906, Hemingway’s Code, sections 3704 and 37t)7, for1 the levy of a special annual tax to be used exclusively to pay interest on bonds and providing a sinking fund and for the repayment of any loan warrants, and interest thereon which any county may execute to obtain money to defray county expenses. The court in the course of its opinion said: “It is hardly possible that by the general language there used the legislature intended to withdraw from such boards the power to provide for the payment of debts which they had lawfully incurred.” It is insisted here, and was apparently the! view of the court below, that the fund on which the county’s claim was founded wasi a road fund, and because the board had spent the money in working the roads that no relief could be given and the general fund could not be resorted to. It seems to be contended that the bond of the supervisors must be resorted to. The agreement shows that the members of the board acting for the county appropriated that money belonging to the county. The money was used for the benefit of the county, [723] and the county is liable for the conversion to its own use of the money belonging- to the town, and the judgment heretofore rendered settles the liability of the County. Under the statutes above cited the board of supervisors had the power to pay the judgment from the general county fund, and if that was exhausted then it could issue bonds under chapter 209, Laws of 1918, and could levy a special tax to pay the same. The judgment of the court below is reversed, and judgment will be rendered here for the appellant,( directing the board to pay the judgment. Reversed, and judgment here for appellant. Reversed.