97 So. 545 | Miss. | 1923
delivered the opinion of the court.
This is an action at law, in which the appellant seeks to recover from Jefferson Davis county and R. E. Dale, sheriff and tax collector, the sum of three hundred ninety-nine dollars and twenty-three cents alleged to have been wrongfully collected from it by Dale by virtue of his office as tax collector, pursuant to an order made by the board of Supervisors. The demurrer to the appellant’s declaration was sustained, and the cause was dismissed.
The questions here presented for decision, and to which this opinion will be limited, may be reduced to two: First, the appellant’s claim that the order under which the tax was collected is void; and, second, the appellees’ claim that the appellant is estopped from maintaining this suit.
The order under which the tax was collected by Dale was one levying a special tax of three mills on property situated in the Crossroads school district for use of the school therein. The tax was paid by the appellant under protest. The declaration sets forth several grounds in
It appears that a petition, reciting that it was signed by a majority of the electors of the “Crossroads school district,” was filed with the board of supervisors, praying for the levy of a three-mill tax on the property within the school district, as provided by section 3, chapter 172, Laws of 1918, which section reads as follows:
“On petition of a majority of the qualified electors of any public school district in a county, the board of supervisors shall levy a tax on the property of that district for the purpose of supplementing salaries of teachers, extending school term, buying furniture for the school, repairing school building, or for fuel and other incidental expenses of the school and said district.”
The order of the board of supervisors levying the tax was a part of the general order by which all of the taxes for the county and its several school districts were levied, and in so far as it relates to the district here in question is as follows:
“It is further ordered that the tax levy for each of the separate districts be and the same is hereby levied and fixed as follows: . . . Crossroad school, in addition to school levy, 3 mills.”
This order is void, in so far as it attempts to levy the tax here in question, for the reason that it fails to recite the facts necessary to invest the board with jurisdiction to make the order, to-wit: That a petition signed by a majority of the qualified electors of the district had been filed with the board praying for the levy of the tax. That that fact, necessary to invest a board of supervisors with power to act, must be found by the board to exist, and be set forth in its minutes, has been so often decided by this court that to cite authority therefor would be supererogatory
One of the grounds of the demurrer is:
“The declaration shows on its face that the taxes were properly and legally levied, regardless of where the school-*236 bouse may have been located, and therefore shows that these defendants are not liable for the appropriation of the funds, as, under the law, said taxes were collected by the tax collector of the county and placed to the credit of the Crossroads school district, and appropriated by the school authorities of the said Crossroads school district, and therefore plaintiff is estopped from suing these defendants, as the declaration shows on its face that it (plaintiff) paid the taxes, well knowing that said taxes would be placed to the credit of said school district and be appropriated by said school district.”
The question here sought to be presented must be raised, if at all, by a plea, to which the appellant would have the right to reply; consequently we will express no opinion thereon.
Reversed and remanded.