Opinion
No. 29032.
January 5, 1931.
1. PUBLIC LANDS.
County boards of supervisors are merely agents of state for administering school trust imposed on sixteenth section land owned by state.
2. PUBLIC LANDS.
Authority of county boards of supervisors to deal with sixteenth section land impressed with trust for schools must be conferred by statute.
3. DRAINS.
Drainage district may be created over protest of landowner.
4. DRAINS.
County board of supervisors, prior to 1924, held not authorized to pay drainage taxes or local assessments on state-owned sixteenth section land impressed with school trust (Hemingway's Code 1927, sections 8189, 8885, 8886).
5. DRAINS. County board of supervisors under 1924 statute held required to pay drainage assessments levied after enactment of statute on any sixteenth section land not leased but included within drainage district ( Hemingway's Code 1927, sections 5085, 5086, 8885, 8886).
Laws 1924, chapter 267, sections 1, 2 (Hemingway's Code 1927, sections 5085, 5086), provides for payment of assessments of sixteenth section land impressed with school trust, for maintenance of drainage district, and specifically provides that, when land is held by lessee, assessments must be paid by lessee, and, when not so held, must be paid by board of supervisors of county in which land is located.
APPEAL from circuit court of Washington county. HON. S.F. DAVIS, Judge.
Farish Bell, of Greenville, for appellant.
It is the well settled law in Mississippi that the title to the sixteenth sections is in the state in trust for the inhabitants of the several townships.
Jones v. Madison County, 72 Miss. 777, 18 So. 87.
Sixteenth section or school lands cannot be subjected to a drainage tax, without a statute so authorizing.
19 C.J. 717; 9 R.C.L. 656, 25 R.C.L. 114; 25 A. E.E. of L. (2 Ed.), 1186; People v. School Trustee Township 19, 118 Ill. 52, 7 N.E. 262; Edgerton v. Huntington School Township 126, 26 N.E. 156; Southern Drainage Dist. et al. v. State et al. (Florida), 112 So. 561; 15 Ann. Cas. 353; State v. Levee Com'rs, 75 Miss. 132, 21 So. 661.
The statutes prior to 1924, authorized the expenditure of the sixteenth sections funds for draining the lands of the township and it is therefore, necessary to refer to the statutes dealing with how the funds may be used.
Section 2704 of the Code of 1906, chapter 144 of the Laws of 1918, and chapter 283 of the Laws of 1924.
By chapter 144 of the Laws of 1918 the funds may be used for clearing land, building improvements on, and draining any sixteenth section lands of the township to which said available funds may belong. And chapter 283 of the Laws of 1924 is substantially the same as chapter 144 of the Laws of 1918.
Section 4705 of the Code of 1906, provides that the board of supervisors shall appoint three trustees for each township, and these trustees shall recommend to the board of supervisors the lawful purposes for which the funds ought to be appropriated, and the same shall be appropriated accordingly.
By chapter 267 of the Laws of 1924, it was never intended that the board of supervisors should pay the drainage taxes on the sixteenth sections under lease out of the sixteenth section funds; but by this statute it was intended that the lessee should pay the same and that the board should pay only on the sections not leased.
Forrest B. Jackson, Assistant Attorney-General, for appellant.
The board of supervisors have complete jurisdiction and control of the sixteenth sections in the several counties.
Jeff Davis County v. Sumrall Lumber Company, 94 Miss. 530.
The sixteenth sections not under lease are not subject to general taxation, nor are they subject to assessments for special improvements any more than courthouse lands, public lands, or other public lands.
City of Grenada v. Grenada County, 115 Miss. 831.
The legislature did not expressly subject sixteenth section lands to assessment for drainage purposes until the enactment of chapter 267, Laws of 1924, and that act only assesses those lands which are under lease, and the assessment is against the leasehold.
Holmes County v. Bear Creek Drainage District, 55 So. 963.
The provisions of chapter 267, Laws of 1924 and of section 6578, Mississippi Code, 1930, demonstrate beyond dispute that prior to 1924, there was no authority for the drainage districts to levy a tax for benefits on sixteenth section lands.
Percy, Strauss Kellner, of Greenville, for appellees.
The state took the title to the sections in fee simple subject to no restrictions placed thereon by Congress; and the state, after its admission into the union, took, not only the title in trust to these lands, but also took absolute control of them.
Jones v. Madison County, 72 Miss. 777; Street v. Columbus, 75 Miss. 822; Cooper v. Roberts, 15 L.Ed. 338.
The boards of supervisors have full and complete authority over the school lands, and for all practical purposes are the owners thereof.
Jefferson Davis County v. Simrall Lumber Co., 94 Miss. 530; Eastman Gardiner Co. v. Adams, Revenue Agent, 101 Miss. 460-68; Fidelity Deposit Co. v. Wilkinson County, 109 Miss. 879.
As special assessments proceed upon the theory that the property charged therewith is enhanced in value by the improvement, the enhancement of value being the consideration for the charge, upon what principle of justice can one tract within the area of the property enhanced in value be released from sharing in the expense of such improvement.
Kansas I.C.R. Co. v. Decatur, 37 S.E. 132.
Even public property is often subjected to special assessments; there being no more reason to excuse the public from paying for such benefits than there would be to excuse from payment when property is taken under eminent domain.
1 Cooley on Taxation (3 Ed.), page 1236.
There is no question but that the legislature has the power to authorize land belonging to the state to be assessed for local improvements. If no specific provision is made either for including or excluding land belonging to the state, we find the same difference of authority that exists in the case of public property generally. According to some authorities, a statute which confers the power of levying local assessments and which does not provide for the exemption of property belonging to the state from the operation of such assessment, authorizes the assessment of the state's property. Where this view prevails, the fact that the state's property is exempt from general taxation does not operate to exempt it from local assessment.
Page Jones on Taxation by Assessment, sections 580-581.
In pointing out the difference between taxation and benefit assessments it has been held that statutory exemptions from taxation do not include exemption from local assessments.
Macon v. Patty, 57 Miss. 385.
An exemption from taxation will never be presumed and the burden is on a claimant to establish clearly his right to an exemption.
Barnes v. Jones, 139 Miss. 675-707; Morris Ice Co. v. Adams, 75 Miss. 410.
That it has always been the policy of the legislature to include public property and render it liable for public improvements, to the same extent as other property similarly situated, is conclusively demonstrated in the history of levee legislation.
State v. Levee Commissioners, 75 Miss. 132.
In 1930, the legislature made plain the duty of the board to pay the drainage assessment and provided that where the lands were leased, such taxes should in the discretion of the board, either be paid by the board or by the lessee the liability to be fixed when the lands were leased.
Code of 1930, section 6578.
Special assessments on property for improvements on the basis of benefits are not taxes within the sense of the exemption provisions of the constitution. Such assessments on county property, therefore, are not unconstitutional. Generally speaking, we should say that liability for such assessments would be the rule and exemption the exception, and if the county had been intended by the legislature to be exempt from assessments, the exemption would have been stated and not left to implications.
Lake Arthur Drainage Dist. v. Chaves Co., 222 P. 389.
Private owners may be assumed to be interested in draining their own property, but in the absence of a special provision to that effect there is no presumption that they are also to be called upon to pay that which prima-facie belongs to the public.
Boston Seamen's Friend Society v. Mayor Aldermen of Boston, 17 Am. Rep. 153; New Orleans v. Warner, 44 L.Ed. 106; Board of Commissioners of Franklin County v. City of Ottawa, 33 Am. St. Rep., 696.
Argued orally by H.P. Farish, for appellant, and by Ernest Kellner, for appellees.
Several drainage districts organized under chapters 195 and 196 of the Laws of 1912, each of which includes sixteenth section land in Washington county, presented to the board of supervisors of Washington county claims for taxes or assessments levied for 1929, and several years prior thereto on land in the districts for the maintenance of the districts. These taxes or assessments were levied for the year 1924, and for years prior and subsequent thereto. The board of supervisors declined to pay these taxes or assessments, and an appeal was taken to the circuit court, where judgments were rendered awarding to each of the drainage districts the amount claimed by it on these assessments. The cases were all considered and decided together by the board of supervisors, and by the circuit court, and will be here.
The assessments here sought to be recovered, levied for the year 1924 and subsequent years, are governed by chapter 267, sections 1, 2, Laws 1924, Hemingway's Code 1927, sections 5085 and 5086, so that we will deal first with the assessments levied for the years prior to 1924.
Chapters 195 and 196, both of the Laws of 1912, do not provide that assessments on land for the maintenance of drainage districts shall be a personal charge against the owner thereof, nor does any other statute that has been called to our observation, unless it be section 4256, Code 1906, section 8189, Hemingway's Code 1927, which we will assume, but merely for the purpose of the argument, does so provide.
But this assumption will not end the inquiry, for all sixteenth section land is owned by the state, and the boards of supervisors of the various counties are simply the state's agents for administering the school trust with which the land is charged. Jefferson Davis County v. Lumber Co., 94 Miss. 530, 49 So. 611. The authority of boards of supervisors to deal with sixteenth section land, and expend money in connection therewith, is conferred and measured by statutes; and no statute dealing therewith, enacted prior to 1924, has come under our observation which authorizes boards of supervisors to pay taxes or local assessments on sixteenth section land. Section 1, chapter 14, Laws 1918, brought forward as section 225, chapter 283, Laws 1924, Hemingway's Code 1927, section 8885, authorizes boards of supervisors to appropriate township school funds "for clearing land, making improvements, and draining any sixteenth section lands of the township to which any available funds may belong." This provision, it will be observed, does not require, but merely authorizes, boards of supervisors to use available township school funds for draining sixteenth section lands; and under section 4705, Code 1906, which now appears as section 226, chapter 283, Laws 1924, Hemingway's Code 1927, section 8886, the board of supervisors of each county is required to appoint annually three trustees for each township having school funds or lands; and provides that "the trustees shall recommend to the board of supervisors the lawful purposes for which the available school funds of their township ought to be appropriated, and the same shall be appropriated accordingly." A drainage district may be created against the will and over the protest of a landowner, and to hold that township funds may be used to pay drainage taxes on sixteenth section land without the consent of the township trustees would seem to violate this section.
Sections 1 and 2, chapter 267, Laws 1924, Hemingway's Code 1927, sections 5085 and 5086, do provide for the payment of assessments of sixteenth section land for the maintenance of a drainage district. Such assessments, when the land is held by a lessee thereof, must be paid by the lessee, and, when not so held, must be paid by the board of supervisors of the county in which the land is situated. Under this statute the appellant is charged with the duty of paying the drainage assessments levied after the enactment of the statute on any of its sixteenth section land not leased included in the appellee districts, and such assessments only should have been included in the judgments here rendered by the court below.
Reversed and remanded.