75 So. 114 | Miss. | 1917
delivered the opinion of the court.
In the year 1912 the board of supervisors of De Soto county, acting under chapter 145, Laws 1912, which amends chapter 149, Laws 1910, created road districts in three supervisors districts of the county, among the districts being district No. 5, which is involved in the present controversy, and issued bonds under the said chapter in the sum of fifty thousand dollars, and awarded contracts to the appellee for the construction of roads in said district, and also let contracts to other parties-for certain portions of the said district. The appellee completed his contract, and on the 5th day of June, 1913, presented his claim, which was approved by the road commissioners and allowed by the board of supervisors, and presented to the county depository for payment, but was not paid for the reason that the bond fund had been then exhausted. The county had levied a general ad valorem road tax in the county, and had also levied a one-mill tax under the provisions of chapter 145, Laws 1912, and placed these funds in a separate fund called the “maintenance fund,” and instructed the treasurer to keep a separate account, and only to pay out of this fund “maintenance” claims. The appellee requested the board of supervisors to transfer this “maintenance fund” to the “bond road fund,” contending that all said funds should be kept in one fund, and that the board had no lawful authority to separate the funds, and requested that his claim be allowed from the fund known as the “maintenance fund.” This the board refused to do, and the appelleefiled a mandamus in the circuit court seeking to compel the board to transfer the fund from the special maintenance fund ordered to be kept by the board to the bond
The petition for mandamus alleges also that the board had authority to issue additional bonds for the purpose of paying’ said claims, alleging that the fifty thousand dollars issue did not exhaust the ten per cent, of the assessed value of taxable property limit to which the board was authoried to issue bonds. But the petition does not state what the original notice to the taxpayers as to the issuance of bonds contains, nor whether the said notice was notice of an issuance of fifty thousand dollars road bonds, or a notice of an issuance not to exceed ten per cent, of the assessed valuation. It is alleged that the claims for construction under contracts awarded exceeded the funds derived from the selling of bonds by six thousand, one hundred and thirty seven dollars and ten cents, and that the ten per cent, of the assessed valuation would amount to more than enough to cover this amount. It is also alleged in the petition that the board had levied a three-mill tax on the taxable property of the county for' general road purposes, and' that under section 11, chapter 145, Laws 1912,* that the board was compelled to pay into district No. 5 such proportion of this county ad valorem road fund as it would take to work the bond roads if th'e said district had not come under the law under which bonds were issued, and that it would take forty per cent, of this fund to give this district its ratable share, and that the board had not awarded to the district its share, and asked that the board be compelled to do so. The commissioners of the road district No. 5 were made parties defendant to the suit, and it was alleged that it was their duty to recommend the issuance of additional bonds not to exceed the ten per cent, limit of the assessed valuation of the taxable property in the district. The prayer for relief in the petition prayed that the warrants be adjudged valid and en
The petition was demurred to by the county on the grounds that the court was without jurisdiction to grant the relief sought by the petition; second, that the board of supervisors has no power conferred on it to make the orders which the petition prays that it be compelled to make; third, that the authority of the board to create bond roads and issue bonds for their construction being derived from chapter 149, Laws 1910, as amended by the act of 1912, does not authorize the board to levy a maintenance tax until the roads have been constructed, and that the direction of the statute to apportion the county road funds between the county roads of the district and the bond roads does not apply to bond roads during the period of construction, but that the apportionment of the ad valorem fund is intended as a maintenance fund, and not a construction fund; fourth, that the court cannot compel the board to perform any act which the board could not do voluntarily; fifth, that the acts sought to be compelled by mandamus was the exercise of a discretionary power, and cannot be controlled by the court. The court overruled the demurrer, and the county declined to plead further, and the court awarded the relief prayed for by
It is the contention by the county here that under section 6 of chapter 145, Laws 1912, that the roads must be constructed out of the proceeds of the bond issue, and that the annual tax to be levied under the act is to be used to supplement the general road fund of the county in “maintaining” the roads (after construction) and the culverts, bridges, and levies thereon, and that the board is not authorized to pay for the construction work out of the one-mill ad valorem fund under this chapter, nor out Of the general county ad valorem fund for road purposes throughout the county; and, also, that the general ad valorem fund levied under section 4469 of the Code of 1906, and referred to in section 11 of chapter 145, is a fund to be used in the discretion of the board anywhere in the county, and in such proportions in the respective parts of the county as the board may see proper to apply it in maintaining roads, and that it cannot be used for construction purposes under this good roads chapter. We think the solution of the controversy depends upon the construction of sections 6 and 11 of chapter 145, Laws 1912, which read as follows :
“Sec. 6. That the public highway or highways so surveyed and adopted by such commissioners shall be constructed and maintained out of the proceeds of such bonds; proceeds of such bonds to be used alone in.their construction; and the board of supervisors shall levy an annual tax, on the recommendation of such commis-' sioners, on all the taxable property in such district or districts of not exceeding one mill on the dollar, which shall be used to supplement the general fund of the county in maintaining said road or roads and the culverts, bridges and levees thereon. And for the purpose of paying such bonds and interest and so maintaining*269 said roads, the board of supervisors shall, at the time fixe'd by law, levy the tax for the same and it shall be the duty of the county auditor to keep a separate account of such funds so raised from the other funds of the county; and it shall be the duty of the treasurer, who shall be the treasurer of such funds and liable on his bond therefor, to keep a separate account thereof. And all allowances against said special fund shall be made by the board of supervisors on the recommendation of such commissioners and special warrants prepared for the purpose shall be issued against said funds.”
“Sec. 11. Nothing in this act shall be taken to repeal any road laws of the state. Counties working the public roads by contract, or that may hereafter do so, shall be authorized to levy and collect a road tax from the whole county, including the districts electing to come under this act. Such portion of the proceeds of said tax as would have been necessary to work the roads in such districts had they not so elected, shall be subject to the control of the commissioners of said district to be used therein. But the districts separately taxed to pay principal arid interest on bonds for building roads made of stone, gravel, chert, slag, or sand clay, or of a combination of such material or any material equally durable shall not be subject to an additional tax for building such roads in other parts of the county, or for the payment of principal and interest on any county bonds hereafter issued for road purposes, without the consent of a majority of the qualified electors of said district voting in an election held for that purpose. In counties working convicts on the public roads, such convicts shall be worked as far as practicable in cutting down hills and reducing the grade of roads where they will not be subject to frequent 'and unnecessary removal from one place to another.”
It will be noted in section 6 that the language used by the legislature is that the highway .selected, surveyed,
Under the law as declared in section 4469 of the Code the board of supervisors determine absolutely where the ad valorem fund shall be used. It does not have to be apportioned between the districts at' all. The very purpose of the fund in that case is to have a general fund to supplement such road links or districts as are
Much is said in the argument and briefs as to the meaning of the word “shall” in section 11, providing that the proportion of the county fund as may be neces
The judgment of the court, therefore, will be reversed and remanded, with leave to petitioner to amend his petition if he so desires, and present to the circuit court the same anew in accordance with this opinion.
Reversed and remanded.