Opinion
No. 33266.
June 6, 1938. Suggestion of Error Overruled June 30, 1938.
1. SCHOOLS AND SCHOOL DISTRICTS.
The county board of supervisors, after declaring intention at April meeting to levy an eight-mill school tax, was authorized in July, subsequent to first Monday thereof, to modify declaration of intention by declaring intention to make ten-mill levy, where levy was not finally made until October meeting (Laws 1936, 2d Ex. Sess., chapter 1, section 15).
2. SCHOOLS AND SCHOOL DISTRICTS.
The statute prohibiting county board of supervisors from reducing, after first Monday in July, amount of school tax fixed in previous declaration of intention did not preclude board from increasing, after first Monday in July, amount fixed in declaration of intention at April meeting (Laws 1936, 2d Ex. Sess., chapter 1, section 15; chapter 5, section 1.)
APPEAL from circuit court of Grenada county; HON. JOHN F. ALLEN, Judge.
S.C. Mims, Jr., of Grenada, for appellant.
This appeal presents to the court the construction of Chapter 5, Senate Bill No. 5, and Chapter 1, Senate Bill No. 7, of the Second Extraordinary Legislative Session of 1936. It was contended by the appellees successfully before the learned trial court that the provisions in these acts providing that the tax levy should not be reduced after the first Monday of July in any year, prohibited the board from modifying its April order at the July term, the order entered at the July term being entered after the first Monday in July. We respectfully submit that the learned trial court was in error in his construction of the applicable law.
It is very obvious that both acts are effective and both were approved on the same day and do not conflict and were intended by the Legislature to cover different situations or conditions. The appellees and the trial court seem to be under the impression that Section 15 of Chapter 1, supra, was controlling. It is the contention of the appellant that Chapter 5, supra, gave the board the unquestionable authority to make the levy in question. The provisions of Chapter 5 do not prohibit the county from increasing the levy but only prohibit it from reducing same.
In the construing of a statute it is required that the court seek the intention of the Legislature, and, knowing it, adopt that interpretation; and take into consideration the object and purpose of the statute, and construe the statute or a particular section thereof in connection with the whole laws of which it is a part and carry out the intention of the Legislature when ascertained even though the letter of the statute be violated.
Rawlings v. Ladner, 165 So. 427, 174 Miss. 611; City of Jackson v. Gunter, 94 So. 844, 130 Miss. 637; Robertson v. Texas, etc., 106 So. 449, 141 Miss. 356; Dresser v. Hathorn, 109 So. 23, 144 Miss. 24.
It is very evident and manifest that the purpose of the Legislature prohibiting the reduction of millage after the first Monday in July of each fiscal year was for the purpose of carrying out the provisions of Chapter 1, supra, which provided for the distribution of the state equalizing school fund. It can be readily seen the necessity of the State Board of Education ascertaining at a definite date the approximate amount of funds available in the respective counties as a basis for distributing the equalizing fund. It was not the purpose or the intent of the Legislature to prohibit the county from increasing the millage for school purposes, but as the plain language of both acts provide, it was the intention and purpose of the Legislature to prohibit after the first Monday in July a reduction thereof.
The two acts are harmonious and do not conflict in any way, and it is respectfully submitted that there is nothing in the context of either act that justifies the court in holding that the word "reduce" was intended by the Legislature to include "change" or "modify"; and that under the law the board of supervisors were warranted in making the ten-mill levy it did make, and that the judgment of the circuit court should be reversed and judgment be here entered for the appellant.
W.M. Mitchell, of Grenada, for appellees.
The board of supervisors is a court of limited jurisdiction, and it has not authority, at a subsequent term, to correct or modify its orders and judgments entered at former terms.
Lafayette County v. Parks, 132 Miss. 752; Cuevas v. Cuevas, 110 So. 803.
Tax laws are universally classed as being laws ad invitum, and must be strictly construed, and all doubts resolved in favor of the taxpayer.
State v. Union Tank Car Co., 119 So. 310; George County Bridge Co. v. Catlett, 161 Miss. 120.
The board of supervisors of Grenada County, evidently acting under the authority conferred upon it by Chapter 5, Section 1 (a), of the Laws of the 2nd Extraordinary Session of the Mississippi Legislature of 1936, entered its order at the April term 1937, declaring its intention of making an eight mill levy for general county school taxes at the regular time for making the tax levy for that year. When they did this, it is our contention that this became binding and obligatory upon the board, and they had no alternative to make any change therein, except as further authorized by said Chapter 5, Sec. 1 (b) of Laws of Extraordinary Session of 1936, which provides that in the event said board does not make a levy of 10 mills as authorized in Sec. 1 (a), then ten per cent of the qualified voters may file a petition asking for an election to fix the amount of said levy, and if a majority of the voters vote for the tax the board shall levy said tax (as fixed by said vote), and shall continue from year to year to levy the same tax until changed by an election.
But, unless so authorized, the board is powerless to make any change in the amount of the levy fixed by them in their order; since both these divisions of said statute, as well as Chapter 1, Section 15, and Chapter 2, Sec. 4 (c), of the Laws of said 2nd Extraordinary Session specifically make it "the imperative duty of the board of supervisors to levy the tax at the time fixed by law at the rate fixed in said order." The authority, of course, for making the levy is contained in said Chapter 5; but the method of making same is further set forth and prescribed by said Chapters 1 and 2, of said 2nd Extraordinary Session, and Chapter 255, Section 9, of the Acts of 1936, which, I submit, is still in force, and has equal bearing upon and binding power upon the board as either of the latter acts, same not having been repealed by any of them; and all of these laws must be taken into consideration and construed together in determining the powers of the board in this matter. All of these laws are either modifications of or amendments of Section 6725, Code of 1930.
Chapter 5, Acts of 2nd Extraordinary Session of 1936, amended this statute so as to authorize the board, of its own motion, and without an election to make this levy; but hedged this authority about by the other provisions. That its intention to do so must be declared by an order entered on its minutes at the April term, or a subsequent term, not later than first Monday of July, and that when once fixed and so entered, it could not be changed for that year, but must be levied at the rate fixed in said order, unless authorized by a vote of the people. And even then it could not be changed unless the petition for the election should have been filed with the board on or before the first Monday of July of that year, as provided by said Chapter 255, Section 9, Acts of 1936, which modifies said Section 6725, Code of 1930, and all amendatory and supplementary laws thereof.
It is clear from all of these laws, amendatory of and changing said Section 6725, Code of 1930, that the Legislature realized that it was conferring upon the board of supervisors a power of taxation not theretofore possessed by them until authorized by the people, and therefore they took every pains and method of qualifying and limiting this new authority by prescribing exactly how and under what conditions it should be exercised; and still leaving to the people the final decision as to the amount of the tax to be levied, in the same way that they had theretofore been empowered to initiate such a levy of taxes.
We therefore respectfully submit that the board of supervisors of Grenada County were absolutely bound by their order entered on the minutes at the April term, 1937, declaring the intention of making an eight mill levy of taxes for the support of the public schools of the county for the tax year 1937-38; and that they had no authority of law to change and raise said levy to 10 mills, in the absence of any election authorizing said change; and in any event after the first Monday of July 1937; and that their action was in direct violation of the statutes, and the learned circuit judge was correct in sustaining appellees' bill of exceptions and putting said levy back to the original amount of eight mills fixed by the board at its said April term; and that said judgment should be affirmed.
At its April, 1937 meeting the board of supervisors of Grenada County declared its intention to levy, at the proper time, a tax of eight mills for the maintenance of the public schools of the county, outside of the separate school districts, for the scholastic year 1937-1938. This order of the board was modified on the 7th day of July, which was subsequent to the first Monday thereof, 1937, so as to declare an intention to levy at the proper time a tax of ten instead of eight mills for said purpose, and which levy of ten mills was accordingly made by the board at its October, 1937 meeting. Thereupon, appellees, as citizens and taxpayers of the county, appeared and filed objections to the levy of ten mills and alleged that the board of supervisors was without authority to modify the order entered at its April meeting, and particularly so unless such action was taken prior to the first Monday in July. Their objections were embodied in a bill of exceptions on appeal to the circuit court, where the same were sustained and the levy reduced to eight mills, and from which judgment of the circuit court the county appeals.
The right of the appellees to test in this manner the authority of the board of supervisors, while acting in a legislative capacity, to fix the amount of a tax levy within the limit and in the exercise of the power conferred upon such board by the Legislature, is not here challenged. Hence, it is not necessary that we express any opinion in regard thereto.
The board of supervisors was expressly authorized and empowered by statute to fix the tax levy at ten mills for the purpose specified. It had the right to declare its intention to do so at the proper time by entering an order to that effect either at its April meeting or at any regular meeting thereafter held prior to the adoption of the order levying the county taxes, as provided for in Section 15 of Chapter 1 of the Laws of the 2nd Extraordinary Session of the Legislature of 1936. Since the statute conferred the right to enter the order declaring such intention at the April meeting, or at any regular meeting thereafter held prior to the date of making the levy in October, it is clear that the order entered on the 7th day of July, modifying the declaration of intention made at the April meeting, became the declaration of intention, and within the time required by law.
But the contention is made by appellees that said Section 15 of Chapter 1, and also Section 1 of Chapter 5, of the laws of the 2nd Extraordinary Session of the Legislature of 1936, which provide that the amount of tax fixed in the declaration of intention to levy taxes for such purpose shall be levied by the board at the time other taxes are levied, and that the amount of the tax shall not be reduced by the board after the first Monday in July, prohibit the board from increasing, after the first Monday in July, the amount fixed in its declaration of intention, even if the board had authority prior to the first Monday in July to amend such declaration of intention entered at its April meeting. This contention is untenable, for the reason that the statutes above mentioned only prohibit a reduction of the tax levy after the first Monday in July. If the Legislature had intended to prohibit an increase after that date, as well as a reduction in the amount of the levy proposed to be made, such purpose could have easily been so declared. Then, too, there is a reason for the limitation against such reduction. The first statute, supra, is entitled "An act to regulate the distribution of the state equalizing school fund," etc., and under the provisions thereof those counties making a levy of ten mills for the maintenance of the public schools, outside of the separate school districts, are given more favorable consideration in the distribution of the state equalizing school fund than those where a levy of less than ten mills is made for such purpose. And, under the second statute, supra, it is provided that in the event the board of supervisors does not levy a tax of ten mills for such purpose an election can be called on petition of ten per centum of the qualified electors of the county, outside of the separate school district, to determine whether a ten-mill levy should be made.
It can readily be seen that it would not be fair and equitable to permit a reduction in the levy after the county's allotment in the distribution of the equalizing fund has been approved on the basis of a ten-mill levy, or to permit such reduction after the qualified electors have allowed the time to expire in which an election can be petitioned for to determine the amount of the levy for the current year and to secure for the county the most favorable allotment. And since the only right conferred by these statutes upon the electors to call an election is when the board fails to fix the levy as high as ten mills, the amendment by the board of its declaration of intention subsequent to the first Monday in July so as to declare in favor of ten, instead of eight, mills, did not defeat the purpose of the statutes. Moreover, the board was expressly authorized to make its declaration of intention either at the April meeting or at any regular meeting thereafter prior to the time for levying all county taxes, observing, of course, the requirement that the levy should not be reduced after the first Monday in July for any year.
The action of the board of supervisors in fixing the levy at ten mills should have been affirmed by the circuit court; and, therefore, the judgment of that court in sustaining the appellees' objections thereto must be reversed.
Reversed and judgment here for appellant.