Opinion
No. 34735.
November 24, 1941.
1. COUNTIES.
Under statutes regarding time and manner of levying taxes by county supervisors and providing that in making the levy the board of supervisors shall specify, in its order, the levy for each purpose, the requirements that the order shall state the rate, or levy, for each item making the total of the levy for general county purposes are "mandatory," and substantial compliance must be had therewith (Code 1930, sec. 3227, as amended by Laws 1938, Ex. Sess., ch. 28, sec. 1).
2. COUNTIES.
The yearly budget prepared by a county board of supervisors, even if properly prepared and published, could not take the place of a positive statutory requirement as to contents of board's order making a levy for purposes of taxation (Code 1930, secs. 3970, 3976, 3227, as amended by Laws 1938, Ex. Sess., ch. 28, sec. 1).
3. STATUTES.
Taxing statutes of doubtful meaning are construed against the taxing power, and all doubts are resolved in favor of taxpayer.
4. COUNTIES.
Where order of a county board of supervisors making a levy of taxes for general county purposes recited "General County Fund . . . 5.000 upon each dollar of valuation of taxable property of Harrison County, for general expenses of the County," the order did not comply with statute requiring such orders to state the rate, or levy, for each item making the total of the levy for general county purposes, and levy was illegal (Code 1930, sec. 3227, as amended by Laws 1938, Ex. Sess., ch. 28, sec. 1).
5. CONSTITUTIONAL LAW.
The wisdom of a statute regarding taxation was not for the Supreme Court to decide, the court having only the duty to construe the statute as written.
APPEAL from the circuit court of Harrison county, HON L.C. CORBAN, Judge.
W.P. Martin, III, R.C. Beckett and E.C. Craig, all of Chicago, Illinois, C.H. McKay, of Memphis, Tennessee, and A.S. Coody, Jr., of Jackson, for appellant.
The order making the tax levy here alleged to be illegal and void makes no attempt to comply with the statute, entirely ignoring its express mandate. The appellant contends that it was mandatory upon the Board of Supervisors of Harrison County to itemize the said general county levy so as to show the purpose and the rate or levy for each purpose going to make the total of the said general county levy and that the failure of the Board to comply with the statute vitiated the tax.
To insure that no citizen will be charged with any taxes other than those enacted in strict accordance with the statutes, this court has consistently held that tax laws must be strictly construed against the taxing power, and all doubts resolved in favor of the taxpayer. Town of Utica v. State, 166 Miss. 565, 148 So. 635; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905.
How, then, can it be said that where the statute clearly directs a levy to show an itemization of its rates and purposes a levy without such itemization is valid? This court has answered this question in the case of Burke v. Leggett, 118 Miss. 660, 79 So. 843.
See, also, Chicago, Burlington Quincy Railroad v. The People, 213 Ill. 458, 72 N.E. 1107; People v. C., V. C.R.R. Co., 237 Ill. 312, 86 N.E. 721; Sullivan v. Yow, 125 Ga. 326, 54 S.E. 173; Central of Georgia Ry. Co. v. Wright, 165 Ga. 1, 139 S.E. 890. Jo Drake Arrington, of Gulfport, for appellee.
The appellant contends that because the Board of Supervisors of Harrison County, in its order levying a 5 mill tax for general county purposes, failed to comply literally with the last sentence of the statute, (Chapter 28, Laws Extra. Session 1938), the entire levy was illegal and void.
A statute may be mandatory in some respects and directory in others. 59 C.J. 1072, par. 631. And the appellee contends that the said statute, in respect to the last sentence thereof, was directory.
In construing a statute the Supreme Court takes into consideration all statutes in pari materia. Board of Supervisors v. Ill. Cent. R. Co., 186 Miss. 294, 190 So. 241.
Chapter 91, Code 1930, known as the "Budget Law," requires boards of supervisors at "their September meeting of each year to prepare a budget of expenses and revenue for the next year;" it also requires that such budget be published. That statute is mandatory, and, as the contrary does not appear, it must be presumed that the Board of Supervisors of Harrison County prepared and published "a budget of expenses and revenue for the next year." The order for the tax levy made at the following October meeting was of course necessitated, and determined, by the budgetary estimates set up in the budget and published. The Board, on the basis of its budget, a condition precedent to the levy of taxes, necessarily found that, for "general county purposes," a 5 mill levy would be required. The appellant does not contend that the levy was excessive, or that it, or any portion of it, was made for other than general county purposes authorized by law. And the appellant, in common with all other taxpayers, is charged with a knowledge of the budget published by the Board.
See Chicago, Peoria St. Louis Ry. Co. v. People, 80 N.E. 295, 225 Ill. 463; Chicago E.I.R. Co. v. People, 218 Ill. 463, 75 N.E. 1021; Spring Valley Coal Co. v. People, 157 Ill. 543, 41 N.E. 874. See, also, Coulson v. Harris, 43 Miss. 728.
In the case at bar, the information the appellant complains it was deprived of by the failure of the Board of Supervisors to itemize the rate or levy for general county purposes was available to it; the yield of the 5 mill levy on the basis of the assessed valuation of taxable property was a matter of calculation; and the budget of county expenses, it must be presumed, showed the several items of expense of the county government, so that the rate of the levy for each item making the total of the levy was likewise available to appellant, as it was merely a matter of calculation.
Argued orally by A.S. Coody, Jr., and W.P. Martin, III, for appellant, and by Jo Drake Arrington, for appellee.
The Legislature, at its 1938 extraordinary session, Ch. 28, Extraordinary Session 1938, pp. 78-81, by amendment, reworded and changed in some respects Section 3227 as it appeared in the Code of 1930, providing for the time and manner of levying taxes by the supervisors of the various counties of the State, and then added these requirements:
"In making the levy of taxes, the board of supervisors shall specify, in its order, the levy for each purpose, as follows:
"1. For general county purposes (current expenses and maintenance taxes), as fixed and limited by section 2, chapter 104, laws of 1932."
The act then specifies seven other purposes which shall be specified in the order levying the taxes for those objects, such as for roads and bridges, road bonds and interest, etc. And at the end of the section appears this provision: "The order shall state the rate, or levy, for each item making the total of the levy for the first purpose listed above, but such details need not be shown on the tax receipt."
The first purpose listed above is for general county purposes.
The supervisors of Harrison County made the levy for general county purposes in these words: "General County Fund . . . 5.000 upon each dollar of valuation of taxable property of Harrison County, for general expenses of the County."
Appellant is a taxpayer of Harrison County. It contended this levy did not comply with the foregoing law and was illegal and void; paid its taxes under protest, and petitioned the supervisors for a refund thereof, which was denied, and on appeal to the circuit court of that county, the action of the supervisors was affirmed, from which judgment of the circuit this appeal is taken.
Appellee admits the levy does not comply with the requirements of the law, but says it is valid because (1) the requirements of the statute are not mandatory but merely directory, and (2) that, if mandatory, the defect was cured by the prior publication by the supervisors of the budget of the county for 1939.
The requirements of the statute are mandatory, and substantial compliance must be had therewith. These are entirely new provisions. No such requirements appear in the old statute. There could have been no purpose in adding these requirements had they been merely directory, to be complied with or not as the supervisors desired.
The words of the statute are clear and positive. It says, "The order shall state the rate, or levy, for each item making the total of the levy for the first purpose listed above." These words are unequivocal; there is nothing uncertain about them.
Laudable purposes may be readily perceived for the requirements. Several classes of objects are included in "general county purposes," such as salaries of county officers, expenses of the courts, etc. The taxpayers have a right to know the rate of the levy and the amount to be expended for each object. Too, the requirement is a check on the supervisors in making a total, blanket, lumpsum levy, without showing the items which support that total.
The case of Burke v. Leggett et al., 118 Miss. 660, 79 So. 843, 844, involved a question very similar to this. There the statute read: "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 orders 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 order making the levy described the object of the tax as "Courthouse Special." The court said: ". . . the 2 3/4-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 made."
Appellee admits the board could have complied with the requirements, because it says the budget was a legal substitute for the order. A budget, as to the coming year, is an estimate of the expenses. Section 3970, Code of 1930. It may be revised under certain conditions. Section 3976, Code of 1930. The budget is not in the record and we do not know what it shows, but assuming, as the fact no doubt is, that the budget was properly prepared and published, it could not take the place of a positive statutory requirement as to the contents of the order making the levy.
In a long list of cases this court has announced the rule that taxing statutes of doubtful meaning are construed against the taxing power, and all doubts are resolved in favor of the taxpayer. Town of Utica v. State, 166 Miss. 565, 148 So. 635; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905, and authorities cited in these cases.
The wisdom of the statute is not for us to decide. We have only the duty to construe it as written. The requirements of the statute are mandatory and the order in this case does not comply with them, and the levy is not legal.
Reversed and remanded.