Opinion
No. 33827.
October 16, 1939. Suggestion of Error Overruled November 13, 1939.
1. COUNTIES.
The statute authorizing county board of supervisors to levy special one-mill tax for promotion of public health had the effect of removing proviso authorizing one-mill tax levy for health purposes in counties having assessed valuation of less than $8,000,000 and no bonded indebtedness from statute limiting levy for general county purposes (Laws 1932, chap. 104, sec. 2; Laws 1938, chap. 315).
2. COUNTIES.
The statute authorizing county board of supervisors to levy special one-mill tax for promotion of public health authorized county to levy the one mill as a special tax, and the one-mill tax was not intended to be included in general county taxes (Laws 1938, chap. 315).
3. COUNTIES.
Under statute authorizing county board of supervisors to levy special one-mill tax for promotion of public health, a one-mill tax levied for such purpose was valid, notwithstanding that county had levied the maximum five-mill levy for all general county purposes (Code 1930, sec. 3227, as amended by Laws 1938, Ex. Sess., chap. 28; Laws 1932, chap. 104, sec. 2; Laws 1938, chap. 315, secs. 1, 2).
APPEAL from the circuit court of Bolivar county; HON. WM. A. ALCORN, JR., Judge.
Shands, Elmore, Hallam Causey, of Cleveland, R.C. Beckett, of Chicago, Illinois, and C.H. McKay and Lucius E. Burch, Jr., of Memphis, Tennessee, for appellant.
The levy of one mill for "public health" was a general county purpose levy. We are mindful of the decision of this court rendered in case of Board of Supervisors of Attala County v. Illinois Central Railroad Company (Miss.), 190 So. 241, wherein this court held that a one mill tax levied for the support of county paupers did not come within the maximum levy which a county may make for general county purposes because a levy for the support of paupers was a special levy for a special purpose and was not controlled by a statute dealing with levies for general county purposes.
Paupers are a definite class of people. They are people who are so poor that they must be supported at public expense, then when they die they are buried at public expense. This class of people is so well recognized that we have a code chapter dealing with them, Chapter 144, Code 1930.
We think that the case at bar is clearly distinguishable from the Attala County case, recently decided, because the levy about which we complain for "Public Health" was not a levy for a special class of people, but was a levy for the whole county; in fact it appears in the order of the board of supervisors along with the general county "maintenance" levy under the heading "Common County" purpose, showing that it was a levy for the whole county — for the people at large and not for a special class. This levy for "Public Health" was really a part of the county maintenance levy, and ought to have been included in the five mill levy for "Common County Maintenance."
The conservation of the health of the people of a county is a matter in which all of the people of the county are vitally interested. The legislature has recognized the importance of the matter to such an extent that legislation has been enacted authorizing the establishment of a "Department of Health" in each county, or where one county is unable on account of its size or lack of finance to establish such department, then two or more counties may join and establish such department for the benefit of the people of such counties.
Code of 1930, Sections 4926, 4927, 4928, 4929, and 4930.
The courts have recognized that the preservation of the health of the people is a public duty.
Keefe v. Town of Union, 56 A. 571, 574.
Counties must have statutory authority to lay a tax; otherwise they do not have it.
61 C.J. 81; Spitzer Co. et al. v. Monroe County et al., 274 Fed. 819, 824.
The levy for public health was a current expense of the county under Section 2, Chapter 104, Laws 1932. The Public Health Department of the County is one of the governmental departments of the county, functioning for the whole county, and the tax levy of one mill was made for a general county expense.
Seaboard Air Line Ry. Co. v. Wright (Ga.), 128 S.E. 235; State v. Board of Education, 53 A. 236, 237; St. Louis-San Francisco Ry. Co. v. McIntosh (Okla.), 229 P. 1064.
In Missouri-Kansas-Texas R. Co. v. Bennett (Okla.), 250 P. 1021, it was held that where the statute authorized a tax levy for "current expenses" and for "cemetery purposes" which exceeded the statutory levy was void because the expenses for the operation of the library and the care of the cemetery came within the term of "current expenses" of the city. The court said that current expenses "is clearly intended to mean all character of expenses or levies, unless the legislature has by a clear direction given authority to the levying boards to fix a rate over and above the six-mill limitation."
Taylor v. Mayo, 110 U.S. 330, 28 L.Ed. 163, 166; Acme Milling Co. v. Bonaparte (Okla.), 257 P. 284; Murray v. Ryan (Okla.), 257 P. 285; McMillian et al. v. Tucker, etc., 113 S.E. 391, 398.
The Board of Supervisors was limited to a levy of five mills for "all general county purposes" which should have included the levy for "public health." The well recognized rule is that, if the statute does not provide that the special levy shall be in addition to the levy authorized by general statute for general county purposes, then the special levy shall be deemed to be a part of the general levy.
People v. Baltimore Ohio S.W.R. Co., 194 N.E. 568, 569; St. Louis-San Francisco R. Co. v. McIntosh, etc., 229 P. 1064, 1067; Peterson v. Kittredge, 65 Miss. 33, 38, and 39; Beck v. Allen, 58 Miss. 143; People ex rel. v. Cleveland C.C. St. L. Ry. Co., 129 N.E. 164, 165, and 166; People v. Cairo T.P.R. Co., 149 N.E. 824, 826; Great Northern Ry. Co. v. Stevens County, 183 P. 65, 66, 67; Oconto Co. v. Town of Townsend (Wis.), 244 N.W. 761, 762, 763; Wells v. McNeill, 93 Miss. 407, 48 So. 184; Missouri-Kansas-Texas R. Co. v. Bennett (Okla.), 250 P. 1021; People ex rel. v. Chicago E.I. Ry. Co. (Ill.), 129 N.E. 846; People ex rel. v. L. N. Ry. Co. (Ill.), 133 N.E. 340; People ex rel. v. I.C.R.R. Co. (Ill.), 133 N.E. 779; People ex rel. v. Alton Eastern R.R. Co. (Ill.), 194 N.E. 573, 575; People ex rel. v. B. O.S.W.R. Co. (Ill.), 194 N.E. 568, 569; McIntosh County v. Seaboard Air Line Ry. Co. (Ga.), 144 S.E. 687.
It is worthy of consideration that in the past when the legislature of Mississippi has authorized the levy of a special tax, it has in each instance, stipulated that such tax shall not come within the limitations of the general laws fixing the maximum levies, but that such special tax shall be in addition to the maximum levies stipulated in general laws, thus placing the same interpretation on the tax laws for which we herein contend. We shall call attention to some of such statutes.
Chapter 315, Laws 1938; Chapters 402 and 413, Local and Private Laws, 1938; Chapter 299, Laws 1938 (Reg. Ses.); Chapter 255, Laws 1936; Chapters 50, and 60, Laws 1938 (Ex. Sess.); Chapter 420 (Local and Private Acts), 1936; Chapter 274, Laws 1936; Chapters 316 and 317, Laws 134; Chapters 693, 698, 707, 708, 711, Local and Private Laws, 1934; Chapters 378, 400, 410, 411, 413, 415, 421, 422, 432, 435, 451, 452, 457, 460, 462, 464, Local Private Laws, 1936; Chapters 345, 346, 347, and 348, Laws 1920.
We contend that the only logical conclusion to reach is that the general authority granted by Chapter 315, Laws 1938 (Reg. Sess.) to make a special levy for indigent sick and public health does not authorize an additional tax for such purposes. If the latter statute authorized an additional tax to treat indigent sick and to promote public health, then we have a situation where a county of less than eight million assessed values and no bonded indebtedness, under Section 2, Chap. 104, Laws 1932, may levy as much as 10 mills for general county purposes, and then an additional one mill for a full time health unit and then still another one mill for indigent sick and public health, a total of 12 mills, exclusive of levies for roads, bridges, schools, and general county bonds and interest. Thus a county of that class would be authorized to make two levies of one mill each for "Public Health."
To obviate any such situation and to make effective all of the foregoing statutes [Section 2, Chap. 104, Laws 1932 and Chap. 28, Laws 1938 (Ex. Sess.)], we contend that the only additional tax provided by these statutes, is the one provided for the full time health unit; that Chapter 315, Laws 1938 (Reg. Sess.) was only enacted for the purpose of making it clear that a levy could be made for public health and support of indigent sick, if the necessary funds could be obtained without exceeding the general county limitation.
It is a well recognized rule that the repeal of a statute by implication is not favored, but when both statutes are construed and the provisions of the former statute are repugnant to the latter, then the former statute is deemed repealed to the extent of the repugnancy.
Russell v. State, 176 Miss. 853, 169 So. 654; Miss. State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168; Ascher Baxter v. Moyse Co., 101 Miss. 36, 57 So. 299; Ex parte McInnis, 98 Miss. 773, 54 So. 260; Pons v. State, 49 Miss. 1; State ex rel. v. Board of Commissioners, etc. (Kans.), 119 P. 327, 329.
One mill levy comes within limitations of Chapter 104, Laws of 1932, because it was a levy for a general county purpose.
A tax levy for the promotion of public health is not for a local purpose, because such a levy directly promotes the welfare of the community rather than individuals.
1 Cooley on Taxation (4 Ed.), Sec. 202, p. 430; Davoch v. Moore, 63 N.W. 424, 429; Hunter v. Owens, 80 Fla. 812, 86 So. 839; Board of Commrs., etc. v. Peter, 253 Mo. 520, 161 S.W. 1155, Ann. Cas. 1915C, 310; Sacramento County v. Chambers, 33 Cal.App. 142, 164 P. 613; Le Bourgeois v. City of New Orleans, 145 La. 274, 82 So. 268; Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508.
Tax levy for support of paupers is for benefit of a special class of people, and is not for a general county purpose.
Board of Supervisors of Attala County v. I.C.R.R. Co., 190 So. 241; 61 C.J., page 90, Sec. 20, and page 91.
To be for a general county purpose the tax must affect the inhabitants as a community and not merely individuals or particular objects.
Stanley v. Jeffries (Mont.), 284 P. 134, 138; People v. Salem, etc. (Mich.), 4 Am. Rep. 400.
Sections 4929 and 4932, Code 1930, merely provide that Board of Supervisors may make appropriations for the benefit of public health, which merely designates public health as an object of public support by taxation.
Chapter 315, Laws of 1938 (Reg. Sess.) merely recognized that one mill may be levied for promotion of public health, but does not provide that such levy shall be in addition to all other taxes to be levied by Boards of Supervisors.
To accept appellees' interpretation of Chapter 315, Laws 1938 (Reg. Sess.) it is necessary to construe into the statute the words "In addition to all other taxes authorized by law to be levied."
Legislature cannot be charged with doing a vain, useless or foolish thing, or to have a lack of knowledge of the meaning or use of words.
Chapter 315, Laws 1938, is purely an earmarking statute so as to require levy for public health to be separate for purpose of expenditure.
Chapter 28, Laws 1938 (Ex. Sess.), which adopted Chapter 104, Laws 1932, is a statute which deals with limitations of tax levies, and also deals with how and when boards of supervisors shall levy taxes.
Sec. 2, Chap. 104, Laws 1932, limits the levy of one mill for public health to counties having less than eight million dollars of assessed values and no bonded indebtedness, which is an express limitation of a tax levy to be made in Bolivar County for public health, except within the five mill limit.
Sec. 2, Chap. 104, Laws 1932, became a part of Chap. 28, Laws 1938, by specific reference which is an adoption of the former statute by the latter.
59 C.J. 1059, Sec. 624; State v. District Court, etc. (Mont.), 272 P. 525; Vallejo N.R. Co. v. Reed Orchard Co. (Cal.), 170 P. 426; Davis v. State (Tex.), 246 S.W. 395, 398; Phoenix, etc. v. Fire Dept. (Ala.), 23 So. 843.
Adoption of statute by reference does not violate constitutional provision requiring section or sections of statute to be inserted at length.
25 R.C.L. 905, sec. 157; Knisely v. Cottrel, 196 Pa. St. 614, 46 A. 896, 50 L.R.A. 86; Morris v. State (Ariz.), 9 P.2d 404; Cernoch v. Colorado County (Tex.), 48 S.W.2d 470.
Reference statutes are not amendatory or revisory statutes, and are not obnoxious to constitutional provisions.
Phoenix v. Montgomery (Ala.), 23 So. 843; Davis v. State (Tex.), 246 S.W. 395; State v. Farmick (Wash.), 116 P. 651; State v. Armstrong (N. Mex.), 243 P. 333; Brown v. Silverton (Ore.), 190 P. 971; Santee Mills v. Query (S.C.), 115 S.E. 202.
But if the adoption of Section 2, Chaper 104, Laws 1932, into Chapter 28, Laws 1938 (Ex. Sess.) causes the latter statute to be unconstitutional then the former statute remains in full force.
25 R.C.L. 906; Eberle v. People, 232 U.S. 700, 58 L.Ed. 803; cases cited in 15 R.C.L. 906, note 15.
Purpose or Paragraph 8 of Chapter 28, Laws 1938 (Ex. Sess.), deals with levies for purposes other than mentioned in the statute. Therefore, does not deal with public health, because that purpose was specifically dealt with in Paragraph or Purpose 1 of the Act, which by reference to Section 2, Chapter 104, Laws 1932, deals with public health.
A statute cannot authorize a levy and at the same time deny authority to make the same levy.
Taxing authorities must have express authority to levy a tax. The authority to levy a tax is never implied.
The statute must be so drawn as to convey the idea that the levy shall be in addition to limitations, otherwise the levy must come within the limitations.
Where a statute enumerates powers it must be held that it named all powers therein, and nothing shall be implied.
Tepper Bros. v. Buttross, 178 Miss. 659, 664, 174 So. 556.
Although Section 2, Chapter 104, Laws 1932, denied the Board of Supervisors of Bolivar County to levy a tax for maintenance of public health, it nevertheless levies such tax and is not using the same for public health purposes.
Sillers Roberts, of Rosedale, and J.A. Lauderdale, Assistant Attorney-General, for appellees.
Chapter 315 of the Laws of 1938 authorizes the levying of a special tax for public health which is for a special purpose and not within the limitation of Section 2, Chapter 104 of the Laws of 1932.
The limitation provided by Chapter 104 of the Laws of 1932 applies only to tax levies for "general county purposes." If the tax is levied for any other purpose than a "general county purpose" the limitation of the Act does not apply.
Chapter 315 of the Laws of 1938 does more than authorize Boards of Supervisors to levy a tax of not exceeding one mill for the treatment of the indigent sick and for the promotion of the public health. It authorizes Boards of Supervisors to levy "a special tax of not exceeding one mill . . ." for that purpose. The use of the word "special" in Chapter 315 of the Laws of 1938, prevents the one mill authorized by the Act from being within the limitation provided for by Section 2 of Chapter 104 of the Laws of 1932, for the limitation provided by Section 2 of said Act applies only to levies for "a general county purpose." By the Legislature using the words "special tax" is clearly showed that the levy was not a levy for "general county purposes."
The Legislature by Chapter 315 of the Laws of 1938 designated the one mill public health levy as a special tax and earmarked the revenues derived from the tax. This made the levy for a special purpose and prevented it from being for a general county purpose. There is no such tax as a special tax for a general purpose. The fact that a tax is a special tax makes it for a special purpose.
The question before the court in this case has already been settled by this court in the case of Board of Supervisors of Attala County v. Illinois Central Railroad Company (Miss.), 190 So. 240.
The court held that the limitation imposed for general county purposes by Section 2 of Chapter 104 of the Laws of 1932 does not include a tax levied under Section 5701 for the purpose of caring for the poor.
The one mill tax levy in the case at bar was a special tax for a special purpose and was expressly made so by Chapter 315 of the Laws of 1938 which authorized its levy. Therefore, there can be no question but that it is not included within the limitation imposed by Section 2 of Chapter 104 aforesaid.
The only reasonable construction which can be placed on Chapter 315 of the Laws of 1938 is that it authorizes Boards of Supervisors to levy a one mill tax for the treatment of the indigent sick and the promotion of the public health in addition to the limitations prescribed by Section 2, Chapter 104 of the Laws of 1932. At the time of the enactment of Chapter 315 of the Laws of 1938 Boards of Supervisors already had the authority to levy taxes for public health. This authority was given by Sections 4929 and 4932 of the 1930 Code.
Inasmuch as Boards of Supervisors already had the authority to levy and collect taxes for the public health of the county within the limits prescribed for general county purposes, it was not necessary to enact Chapter 315 of the Laws of 1938 unless it was the purpose and intention of the Legislature to grant authority to the Boards of Supervisors to levy and collect this one mill tax in addition to the limitation prescribed by Section 2, Chapter 104 of the Laws of 1932. It cannot be presumed that the Legislature did a vain and useless thing and this would be the result if the court should hold that Chapter 315 of the Laws of 1938 did not grant Boards of Supervisors the right to levy a tax of one mill for the treatment of the indigent sick and for the promotion of public health in addition to the limitation prescribed by Chapter 104 of the Laws of 1932.
Chapter 28 of the Laws of the Extraordinary Session of 1938 did not prevent the Board of Supervisors of Bolivar County from levying a one mill tax for public health in addition to the levy of 5 mills authorized for general county purposes.
Board of Supervisors of Attala County v. Illinois Central Railroad Company, 190 So. 240.
Argued orally by H.F. Causey and R.C. Beckett, for appellant, and J.A. Lauderdale, for appellees.
The appellant, the Yazoo Mississippi Valley Railroad Company, filed suit in the Circuit Court of Bolivar county, in the second judicial district thereof, to recover taxes in the amount of $1,272.65, paid under protest, which taxes were assessed against the property of the appellant for the year 1938, being the one mill tax levied under chapter 315, Laws of 1938. The suit was filed against the county, and the sheriff and tax collector, and the United States Fidelity Guaranty Company, surety on the sheriff's bond. The assessment so made for the year 1938 is as follows:
"In re: Levy for Taxes for the Fiscal Year 1938-1939. Be it remembered that in the matter of the levy of taxes for the fiscal year 1938-1939 for the collection of taxes in Bolivar county, Mississippi, it is hereby ordered by the Board of Supervisors of said county, that the tax levy for said county and the various taxing districts therein for the fiscal year beginning October 1, 1938, be and the same is hereby fixed and levied as follows, to-wit:
"Common County: Maintenance, 5:00 Mills Public Health, 1:00 Mills."
This order was dated October 26, 1938, and was voted for by each member of the board of supervisors in the affirmative, and is of record in minute book "G", page 122.
The application for refund was presented to the board of supervisors, and reads as follows: "Statement of Items of general taxes extended on property of the Yazoo Mississippi Valley Railroad Company for the year 1938, in Bolivar County, Mississippi, being part of said taxes alleged to be excessive, illegal and void, and which items of tax are paid under protest.
"Objection No. 1.
Amount of Taxing District Assessment Excess Rate Objection Bolivar County — YMV Coahoma to Riverside Jct.
(a) County — Public Health $206,267 .001 $206.27
"Basis of Objection.
"Last paragraph Sec. 2, Ch. 104, Laws 1932 does not permit such levy in this county because it has a bonded indebtedness and a valuation in excess of $8,000,000.
"Ch. 315 Laws of 1938 provides a levy of not exceeding one (1) mill 'for the treatment of the indigent sick and for the promotion of the public health of the county.' Since this county has levied the maximum levy for all general county purposes exclusive only of levies for roads and bridges under Common County — Maintenance 5 mills" this additional levy of one mill is excessive under Sec. 2, Ch. 104, Laws of 1932. The limits of said Ch. 104 are not specifically excepted in said Ch. 315, as is usually done in subsequent acts.
"Objection No. 2.
Bolivar County — YMV Rosedale to Boyle
(a) County — Public Health, $74,217 .001 $74.22
"Basis of Objection.
"Last paragraph Sec. 2, Ch. 104, Laws 1932 does not permit such levy in this county because it has a bonded indebtedness and a valuation in excess of $8,000,000.
"Ch. 315, Laws of 1938 provides a levy of not exceeding one (1) mill 'for treatment of the indigent sick and for the promotion of the public health of the county.' Since this county has levied the maximum levy for all general county purposes exclusive only of levies for roads and bridges under 'Common County — Maintenance 5 Mills,' This additional levy of one mill is excessive under Sec. 2, Ch. 104, Laws of 1932. The limits of said Ch. 104 are not specifically excepted in said Ch. 315, as is usually done in subsequent acts.
(b) Common County Maintenance $206,267 .005 $1031.34
"Basis of Objection.
"The levy for this purpose does not comply with last sentence Sec. 1, H.B. 216, Laws Extraordinary Session 1938 (Ch. 28).
"Received: 30 day of January, 1939.
"J.L. Smith by A.C. Pearman, Chief Deputy Sheriff, Sheriff and Tax Collector Bolivar Co."
The board of supervisors refused to make the refund applied for, and this suit was brought for the purpose of recovering the amount named in the declaration. On the basis of the contention that the one mill provided for in chapter 315, Laws of 1938, should have been included in the general county tax, and not made a separate tax, it is argued that chapter 104, Laws of 1932, section 2 thereof, limits the county to five mills, the section reading as follows, omitting immaterial parts: "The Board of Supervisors of any county is hereby empowered to levy ad valorem taxes on the taxable property in the respective counties in any one year for all general county purposes, exclusive only of levies for roads and bridges and schools, at the rate herein specified, but not in excess of the following amounts: . . . In counties having an assessed valuation of $20,000,000.00 and less than $25,000,000.00, 5 mills . . Provided, however, that counties having an assessed valuation of less than $8,000,000.00 and having no bonded indebtedness shall be allowed to levy one additional mill for the purpose of maintaining a full time health unit."
By section 3227, Code of 1930, the board of supervisors of each county, at the regular October meeting each year, shall levy the county taxes for the fiscal year, and shall order the tax rates, expressed in mills, decimal or fraction of a mill, "to be collected upon each dollar of valuation, upon the assessment rolls of the county, for county taxes; but, if the board of supervisors of any county shall not levy the county taxes at that time, the board may levy the same at any other regular adjourned, or special meeting."
This section was amended by chapter 28 of the special extraordinary session of the legislature of 1938, the amendment being approved August 28, 1938. The title of this act is, "An Act to amend section 3227, Mississippi Code of 1930, so as to provide a definite method for levying county, road district and school district ad valorem taxes; to provide for uniform tax receipts throughout the state; to provide a method for furnishing said receipts; and for other purposes."
In the first section of this act it is provided: "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 expense and maintenance taxes), as fixed and limited by section 2, chapter 104, laws of 1932. 2. For roads and bridges, as fixed and limited by section 3, chapter 104, laws of 1932. 3. For schools, including the county-wide levy and the levy for each school district, other than municipal separate school districts, and for an agricultural high school, county high school or junior college (current expense and maintenance taxes), as fixed and limited by section 4, chapter 104, laws of 1932, or any amendments thereto. The levy for schools shall apply to the assessed value of property in the respective school districts (other than municipal separate school districts), and a distinct and separate levy shall be made for each school district, and the purposes for each levy shall be stated. 4. For road bonds and the interest thereon, separately for county-wide bonds and for the bonds of each road district. 5. For school bonds and the interest thereon, separately for county-wide bonds and for the bonds of each school district. 6. For county-wide bonds and the interest thereon, other than for road bonds and school bonds. 7. For loans, notes or any other obligation, and the interest thereon, if permitted by law. 8. For any other purpose for which a levy is lawfully made. 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."
Chapter 315, Laws of 1938, regular session of the legislature, provides in section 1: "That boards of supervisors of the various counties in the state of Mississippi be and are hereby authorized, in their discretion, annually to levy a special tax of not exceeding one mill on all the taxable property of the county to raise money for the treatment of the indigent sick and for the promotion of the public health of the county." In section 2 it is provided that: "All revenue derived from the tax provided for in section 1 hereof shall be covered into the public health fund of the county and shall be subject to the appropriation of the boards of supervisors as the statutes provide for the treatment of indigent sick in the county and for the promotion of public health therein."
It is contended by the appellant that the tax levy hereunder is a tax for general county purposes, and should be included in the five mill limitation for the county here involved, under chapter 104, Laws of 1932.
Bolivar county had established and maintained a health department for a number of years prior to the year here involved — at least from 1932 on. It is quite probable that the county health unit would have to be maintained by a tax included in the five mill limit, under chapter 104, Laws of 1932, it being conceded that Bolivar county had more than a $8,000,000 assessment; and that it had a bonded indebtedness in excess of $600,000, and consequently it wouldn't come within the proviso of section 2, chapter 104, Laws of 1932. But chapter 315, Laws of 1938, has the effect of removing the last proviso from section 2, chapter 104, Laws of 1932; for it is provided in chapter 315, Laws of 1938, that the boards of supervisors of the various counties are authorized in their discretion, to levy a special tax.
It is clear that any county, under this chapter, is authorized to levy the one mill as a special tax, and that it was not intended to be included in the general county taxes. This is manifest, also, from the provision that the revenue derived from the tax "shall be covered into the public health fund of the county and shall be subject to the appropriation of the boards of supervisors as the statutes provide for the treatment of indigent sick in the county and for the promotion of public health therein."
It is difficult to see why the term "special tax" should be used in reference to the one mill tax, if it was intended that this levy, if made, should be included in the general county levy. A fund so derived under said chapter 315 could not be used for any general county purpose to which the board of supervisors might see proper to apply it; but it was to be covered into the county health fund of the county, making it a special fund, as well as a special tax, if it should be appropriated by the board of supervisors for the treatment of the indigent sick, and for the promotion of the public health.
We deem it unnecessary to go into any elaborate discussion of the views of the authorities in regard to distinguishing a general county tax from a special tax. The legislature, in chapter 315, expressly made the levy here involved a special tax, devoted to a special purpose, not to general county purposes. It may be true that in the absence of this chapter, or in the absence of the discretion there conferred, the tax might be levied with other general county taxes, and applied to the public health and to the treatment of the indigent sick; but the legislature took charge of the matter, designated the tax as a special tax, and limited its appropriation to the uses named in the section.
The principles involved in this case are practically the same as those involved in the case of Board of Sup'rs of Attala County v. Illinois Cent. R. Co., Miss., 190 So. 241.
The case was decided in the court below by the judge, acting as both judge and jury. His decision was in accordance with the views herein expressed, and the judgment is affirmed.
Affirmed.