Opinion
No. 34085.
May 27, 1940. Suggestion of Error Overruled September 4, 1940.
1. COUNTIES.
The jurisdiction of a county board of supervisors in connection with the issuance of notes against the county or its subdivisions is subject to legislative regulation, and where a statute requires the consent of both the road commissioners and the board, the board alone may not issue notes or incur a debt (Laws 1914, chap. 174, sec. 15; Code 1930, secs. 251, 252).
2. COUNTIES. Highways.
Where county board of supervisors in giving notice of purpose to issue tax anticipation notes against lands in road district stated that it was acting under statutes authorizing issuance of such notes as a county-wide obligation and did not advise taxpayers of district of purpose to issue notes or incur debts under statute requiring concurring judgment of road commissioners and board, issuance of notes was unauthorized and taxes should have been refunded (Laws 1914, chap. 174, sec. 15; Code 1930, secs. 251, 252).
3. COUNTIES.
Where issuance of tax anticipation notes against lands in road district by county board of supervisors was unauthorized for failure to advise taxpayers of district of purpose to issue notes under statute requiring concurring judgment of road commissioners and board, taxpayers' failure to protest did not cure want of authority (Laws 1914, chap. 174, sec. 15; Code 1930, secs. 251, 252).
APPEAL from the circuit court of Carroll county; HON. JOHN F. ALLEN, Judge.
Denman Everett, of Greenwood, for appellant.
This court has passed upon this exact question in the case of Walthall County Tax Anticipation Notes reported in 185 So. 565.
Sections 251 and 252 of the Code of 1930 cannot be made to fit into a plan to issue a tax anticipation note to be paid solely by a district levy, as is the case here.
In Re Walthall County Tax Anticipation Notes, 184 Miss. 572, 185 So. 565.
Under Section 15, Chapter 174 of the Laws of 1914, the authority for borrowing money is given to the Road Commissioners by and with the consent of the Board of Supervisors.
Sec. 6443, Code 1930.
S.E. Turner and T.O. Yewell, both of Carrollton, for appellees.
It appears from the brief of appellant that all of the issues set up in the lower court have been abandoned, except the sole issue of the right of the board of supervisors to borrow money on tax anticipation notes under Sections 251 and 252, Code of 1930, and Chapter 235 of the Laws of Mississippi, of 1932, and stands solely on the decision of this court in re Walthall County Tax Anticipation Notes, 185 So. 565, 184 Miss. 572.
We recognize fully the import of the decision in the Walthall County case, but we ask a careful consideration of this court of the vital distinction between the situation of the Walthall County case and the case at bar, in these particulars, to-wit:
First, that no separate road district had been created in Walthall County, and second, that no tax anticipation notes had been issued by Walthall County, and the case came upon a question of the validation of a proposed issue.
The board of supervisors had the right under said Chapter 174, Laws of 1914, to appoint three road commissioners and a road superintendent for working the roads in each separate district. This would have meant four officials in each district, or twenty additional employees on the payroll of Carroll County if the board of supervisors had not taken hold of and operated these separate road districts themselves. In the operation of these road districts they exercised the rights provided in Chapter 174 of the Laws of 1914, to be performed by the road commissioners and road superintendents and did themselves what such commissioners and superintendents as their appointees might have done under said law — they borrowed money and gave their loan warrants therefor. Section 15 of the said Chapter 174, Laws of 1914, provides that such loan may be made by the commissioners "with the consent of the board of supervisors." Certainly if the commissioners as creatures of the board could borrow money, the creators of such commissioners would have the right to do so. We think this would be true regardless of Sections 251 and 252, Code of 1930, referred to in brief of appellant.
Argued orally by Richard Denman for appellant and by S.E. Turner, for appellees.
This is an appeal from the Circuit Court of Carroll county from a judgment denying to appellant the right to recover taxes paid under protest. The Board of Supervisors of Carroll county, acting under the provisions of chapter 174, Laws of 1914, by an order entered on its minutes created five separate road districts, the boundaries of which coincide with the boundaries of the supervisors' districts of the county. By order of the Board the ad valorem taxes paid in each district were restricted to the use of that district, the Board of Supervisors using for general county purposes only those taxes derived from the sale of gasoline and automobile licenses.
The Board of Supervisors undertook to issue notes in anticipation of taxes against the lands in district 5 of the county, to raise funds for use in connection with the WPA project for the construction of a modern highway therein. In giving notice of their purpose to issue such notes, they stated that they were acting under sections 251 and 252 of the Code of 1930. Publication of notice to that effect was made in accordance with the requirements of those sections, and no protest was filed against the issuance of such notes in anticipation of taxes, which were then issued and sold, and the highway was constructed. Thereafter, taxes were levied against the lands in the said supervisors' district, to pay off the tax anticipation notes, and interest thereon.
The appellant paid this and other taxes under protest, and presented his claim to the Board of Supervisors for a refund, on the ground that the taxes were not authorized, which claim was denied by the Board, and suit was brought for refund of the taxes so paid. Numerous objections were filed to the validity of the various taxes so levied, and the only question presented for our consideration is the right of the Board of Supervisors to borrow money in anticipation of taxes in a supervisors' district, instead of for the county as a whole; and the applicability of sections 251 and 252, Code of 1930, to that purpose; also, the effect that the act of the legislature, chapter 196, Laws of 1932, has upon the above; and the effect of chapter 174, Laws of 1914, authorizing the appointment of three road commissioners and a road superintendent for each separate district.
In Carroll county the Board of Supervisors did not have road commissioners, acting themselves in that capacity in their respective districts. Section 15, chapter 174, Laws of 1914, provides for loans to be made in such districts through the road commissioners, with the consent of the Board of Supervisors.
It is contended by the appellant that the case In re Walthall County Tax Anticipation Notes, 184 Miss. 572, 185 So. 565, controls the question here involved. It was there held that sections 251 and 252 could not be made applicable to the supervisors' district, but only applied to issuance of tax anticipation notes for county-wide purposes. That case seems to cover the situation here as to the authority of the Board to issue such notes for the supervisors' district here involved.
The notice to the taxpayers stated that the Board was acting under sections 251 and 252 of the Code, and under no other section. Insofar as the provisions of section 15, chapter 174, Laws of 1914, are concerned, that section seems to require the concurring judgment of the road commissioners and the Board of Supervisors as to the proprieties and necessities in connection with the issuance of indebtedness against the road district. The jurisdiction of the Board of Supervisors in connection with the issuance of notes against the county or its subdivisions is subject to legislative regulation, and where the statute requires the consent of both the road commissioners and the Board of Supervisors, the latter alone could not issue the notes or incur the debt. However, the notice given in this case did not advise the taxpayers of district 5 of their purpose to issue notes or incur debts under section 15, chapter 174, Laws of 1914, and the provisions of that section do not validate what was done in the way of issuing anticipation notes in the present case. It seems to have been a legislative oversight in failing to apply the provisions of sections 251 and 252 of the Code to districts, if it were the intent and purpose of the legislature to include district debts in anticipation of taxes. Perhaps the legislature did not intend to give such authority. At all events, we are unable to supply the omission.
It follows from the decision in the Walthall County Tax Anticipation Notes case, 184 Miss. 572, 185 So. 565, that the issuance of the notes in anticipation of taxes is without authority of law, and the taxes should have been refunded. It is not a question of whether there were irregularities in the proceedings in issuing the bonds or tax anticipation notes, but a want of authority to do so, and failure of the taxpayers to protest does not cure this.
The judgment will be affirmed in all respects, except as to the issuance of these notes in anticipation of taxes for road construction, as to which it is reversed, and judgment rendered here for refund of the taxes, with interest thereon from the date of payment.
Affirmed in part, and reversed in part.