Opinion
No. 33356.
October 24, 1938.
1. MUNICIPAL CORPORATIONS.
The power of a municipality to contract with reference to a certain matter must either be expressly conferred by charter or be necessarily implied therefrom.
2. MUNICIPAL CORPORATIONS.
The statute authorizing a municipality to make all contracts and do all other acts in relation to property and concerns of the municipality necessary to the exercise of its corporate or administrative powers did not authorize municipality to employ a tax assessor in addition to the one provided by law (Code 1930, sec. 2391).
3. MUNICIPAL CORPORATIONS.
A contract by town, which was not operating under a special charter but under the Code chapter on municipalities, to pay plaintiff 50 per cent. of back taxes collected by town as result of plaintiff's effort in discovering and having placed on town tax assessment rolls any real estate which had escaped assessment and taxation, as result of which certain railroad property was placed on the town's assessment rolls for taxation and taxes were collected, was void as being in excess of town's authority (Code 1930, sec. 2369 et seq., secs. 2391, 3204, 3208, 3209, as amended by Laws 1932, ch. 291).
APPEAL from the circuit court of Pike county; HON. J.F. GUYNES, Judge.
Mounger Watts, of McComb, for appellant.
The sole question involved in this case is whether a municipality existing and operating under the general statutes of Mississippi with no special or private charter has the power to contract with and provide for compensation to an individual to discover the existence of property located in the municipality and subject to taxation by the municipality which has from year to year escaped taxation by reason of the fact that it had not been discovered and could not have been discovered except by the performance of such contract by the individual.
The contract in this case has been fully executed by the appellant and the benefits of such performance accepted and retained by the appellee.
In the case of Vicksburg Waterworks Co. v. Mayor and Aldermen of City of Vicksburg, 54 So. 852, one of the questions raised was whether or not the city had the right to employ additional counsel to assist its regularly employed city attorney in a pending action and it was contended that the statutory authority of the municipality to employ counsel had been exhausted by reason of the fact that the statute permitted and authorized the employment of only one attorney. Chief Justice MAYES, in delivering the opinion of the court said: "A city has the same power to protect its civil rights that an individual has." We urge that the case at hand presents an analagous question. The regular channels and methods, officials, and procedure had failed to make the collection of taxes which the appellant actually made after the municipality contracted with him. It is true that there is no specific statute which directs a municipality to employ a person to act in the capacity which the municipality employed the appellant to act in this case, by whatever title he might be designated, but it is equally true that in necessity and as a last resort the municipality did employ appellant in the protection of its vested rights and actually received and now holds to his exclusion the fruits of his services. Viewed in this light it is considered that the dictum quoted in the above case is persuasively applicable here for the reason that the appellee in employing the appellant to discover this property and to collect back taxes thereon which were otherwise uncollectible was protecting a valuable civil right.
It cannot be said that the contract in question was in contravention of any existing statute. It is respectfully urged that where a contract or understanding is of itself amicable to public welfare and is not in contravention of an expressed statute it should be upheld unless it is so operated that it becomes oppressive by infringement upon the rights of private individuals or unless it works to the detriment of the general public.
Sections 2391 and 2408, Code of 1930.
In the case at hand the appellant was by contract an employee of the appellee municipality and was employed by the appellee to perform a service which was to the best interest of the constituency of said municipality.
44 C.J., page 1345, par. 4461, and par. 4406; McCaslin v. Green Castle, 56 Ind. App. 54, 104 N.E. 871; Dabney v. City of South Houston, 93 S.W.2d 751.
The appellant by his contentions in this case does not urge a precedent to be set whereby a municipality might enter into contracts to pay persons in addition to its regular officers for the collection of its taxes in regular course. However, it is urged that where a claim for taxes in behalf of the municipality is predicated upon its right to levy and collect taxes on property the existence, location, and description of which is not known to the municipality and the discovery of which cannot be had except through the employment of an individual having particular talents and knowledge relative to such matters on a contingency basis and the labors of such individual is effective, resulting in the payment to the municipality of a large sum of money, the municipality should not be heard to deny that individual a part of the fruits of his labors as provided in the contract. We submit that the record in this case reflects a circumstance wherein the appellant created a benefit to the appellee, municipality, which would not have otherwise inured to it.
James A. Wiltshire, of Magnolia, for appellee.
I believe that counsel has confused those cases where a municipal corporation has the authority to do the thing and enter upon the contract, but, in doing so, failed to do so according to law, with the cases like the one at bar where the whole thing is void, that is, that there was no law authorizing the mayor and board of aldermen to enter into the contract and the contract is void.
The true rule governing this case is laid down in 28 Cyc., page 1043, where it is said: "The power of a municipality to contract is limited by the terms of the legislative enactment under which it proceeds, and failure to comply with same render a contract void."
28 Cyc., page 279.
I presume that the reason there is no case law on the case in point is for the reason that it, a contract in ultra vires, as to a municipality, by the "Horn Book Law" and its soundness has not been heretofore questioned. The Town of Magnolia not only had no right to contract with Mr. Fitzgerald to pay him half of the $4475.50 for which he sues, but would have had no right to pay same to anyone.
Argued orally by Breed O. Mounger, for appellant, and by James A. Wiltshire, for appellee.
Appellant brought this action in the circuit court of Pike county against appellee to recover the sum of $2,237.75, which he claimed was due him under a contract for his services in being instrumental in putting on its assessment rolls for taxation certain railroad properties. Appellant entered into a written contract with appellee on its minutes by which it was provided that appellant should be paid fifty percent of all back taxes collected by appellee as the result of his discovering and having placed on appellee's tax assessment rolls any real estate due to be thereon, but which had escaped assessment and taxation in the past. As a result of his efforts certain Illinois Central railroad property, situated in the municipality, was back assessed for some years past, which resulted in the collection by it of back taxes from that company in the sum of $4,475.50. Appellee's suit is for half of that amount which he claims under his contract.
The case is here on demurrer which the trial court sustained, and, appellant declining to plead further, final judgment was entered dismissing the suit. From that judgment appellant appeals.
The assessment of railroad property for taxation for the state and all of its political subdivisions is conferred on the State Tax Commission by Sections 3204, 3208, and 3209, as amended by Chapter 291 of the Laws of 1932, except real estate wholly disconnected from the railroad business, the assessment of which is left to the local authorities as other real estate. The appellee is not operating under a special charter, but under the Code chapter on municipalities (Chapter 50, sec. 2369 et seq., Code of 1930). There its charter powers are found. The power of a municipality to contract with reference to a certain matter must either be expressly conferred by its charter or necessarily implied therefrom. 44 C.J., Secs. 2123, 2124, p. 66. The chapter on municipalities provides in express terms for the offices of tax collector and tax assessor. The question here is whether a municipality has the power to employ a tax assessor in addition to the one provided by law. Appellant argues that such action is authorized by Section 2391 of the chapter on municipalities. That section provides, among other things, that municipalities may "make all contracts and do all other acts in relation to the property and concerns of the municipality necessary to the exercise of its corporate or administrative powers." We are of the opinion that the argument is unsound. If such action were upheld, the Mayor and Board of Aldermen could go further and employ an assistant mayor, assistant aldermen, and, of course, assistant to any of the other municipal offices. There is no such express authority in the charter, nor can any such be reasonably inferred from powers expressly granted.
We do not think the case of Vicksburg Water Works Company v. City of Vicksburg, 99 Miss. 132, 54 So. 852, 33 L.R.A., N.S., 844, Ann. Cas. 1913d 917, is in point. The City of Vicksburg was involved in a law suit. The question in that case was whether it had the right to employ counsel to assist the city attorney in the suit. The court held that it had. In effect that decision means that the charter power to employ a city attorney did not mean there could not be two attorneys employed. The contract here involved is void and unenforceable.
Affirmed.