McComb City v. Pike County

45 So. 871 | Miss. | 1907

Mayes, J.,

delivered the opinion of the court.

This is a suit by McCornb City against Pike county for the purpose of recovering $1,492. The facts shown by the declaration in the case are as follows: It is alleged that under the charter of McCornb City it has the authority and is compelled to maintain and keep its streets in repair, and in order to do this the expense for same is paid out of the street fund of the municipal treasury. This fund is raised by requiring all male citizens over the age of eighteen years and under the age of fifty years, not exempt from the payment of tax by law, to pay to the chief of police each year the sum of four dollars street tax. This amount is paid into the city treasury and kept as a street fund to be used in working the streets. This fund is supplemented by an ad valorem tax for street purposes, not to exceed one mill on all property, real and personal, not exempt by law from taxation; and this fund is further supplemented by such fines and penalties as may be collected .and imposed for the failure on the part of any person to pay the street tax above required. In 1906, the year for the taxes of which this suit is brought, the city levied and collected an ad valorem tax of one-fourth of one mill on all the real and personal property in McComb City, and the money so collected was placed in the city treasury to the credit of the street fund, and out of this fund all work done on the streets was paid for by warrants, duly allowed by the board of mayor and aldermen, drawn on the treasury. The declaration further shows that Pike county, under ch. 119, p. 153, of Laws of 1900, elected to work the public roads by contract in accordance with the provisions of the chapter; that the board of supervisors proceeded to conform to the provisions of the act, and let out a contract for the working of the roads for the year 1906, and levied an ad valorem tax of two mills on all the property, real and personal, in the county of Pike for the purpose of raising funds to defray the expense incurred under their contract. The amount of ad valorem tax collected in McComb City for this purpose by the board of supervisors amounted to $2,984. The city of McComb claimed to be entitled to one-half of this amount under the provisions of the act of 1900, and made demand on the board of supervisors for the same, which the board refused to pay; hence this suit. A demurrer was interposed to the- declaration, setting up two grounds of demurrer: First, that the city does not work its streets at the expense of the municipal treasury, within the meaning of ch. 119, Laws of 1900; and, second, that the city is not authorized or empowered by its charter to levy an ad valorem tax for street purposes. This demurrer was sustained', the suit dismissed, and the city appeals.

Section 6, ch. 119, p. 154, Laws of 1900, provides that there shall be required annually, in each county, eight days’ special work on the public roads under the contractor; but any person in lieu of said special service may pay a commutation tax for road purposes of three dollars. In addition to the commutation tax, it is provided that there shall be an ad valorem tax on all taxable property in the county, not to exceed one mill on the dollar in any one year, all of which tax is to be collected as any other tax and paid over to the county treasurer, who shall keep all such taxes as a road fund, to be used exclusively as such in compliance with the terms of the act, and paid out only upon the warrant of the board of supervisors; and it is further provided that “ all the commutation tax shall be expended in the district or incorporated village, town or city from which'the same was collected, and such commutation tax for road purposes paid by the residents of such municipality shall be turned over to the treasurer of such municipality and be expended by the proper authorities thereof for that purpose, but the ad valorem tax shall be treated as a general road fund for use anywhere in the county, except the taxes so collected upon property within a municipality, the streets of which are worked at the expense of the municipal treasury, which shall be equally divided between the county road fund and the municipal street fund.” In the case of McComb City v. Pike County, 86 Miss., 647; 38 South., 721, it was held that a municipality which worked its streets with funds made up of a commutation tax and fines imposed on street delinquents for failure to pay this tax and for obstructing the street did not work its streets “ at the expense of the municipal treasury,” within the meaning of sections 6, 7, ch. 119, pp. 154, 155, Laws of 1900. We are very reluctant to disturb this decision of the court; b.ut so strong is our conviction of the error in this decision that we feel that we cannot allow it to perpetuate the error. There is a slight distinction between the case under discussion and the case supra; but the difference is so slight that we do not feel that it can be distinguished in its facts from the case of McComb City v. Pike County, 86 Miss., 647; 38 South., 721.

It is our judgment that the legislature meant by the words “ at the expense of the municipal treasury,” that such municipalities as bear the burden of the work of the streets and their repair by revenue of their own without burden to the county should be entitled to one-half.the ad valorem tax paid on property within the municipality for road purposes. Where the city keeps up and works its streets by taxation, whether commutation tax or ad valorem tax, it is our judgment that it falls within the provision of the act in question, and that the streets are worked “ at the expense of the municipal treasury,” within the meaning of section 6 of the act of 1900. The legislature has clearly shown its intention in Code 1906, § 4469, by adding, after the words “ worked at the expense of the municipal treasury,” the words “ or worked by municipal authority.” We feel bound to overrule the case of McComb City v. Pike County, 86 Miss., 647; 38 South., 721, and to hold that any municipality assuming the burden of working its own streets from money out of its own treasury, whether the money be raised by an ad valorem tax or a commutation tax, is working the streets at the expense of the municipality, within the meaning of sections 6 and 7 of the act of 1900. Our view of this statute is that when the legislature provided that the commutation tax should be expended in the district or incorporated village, town, or city from which the same was collected, and that such commutation tax for road purposes paid by the residents of a municipality should .be turned over to the treasury of the municipality and be expended by the proper authorities thereof on the streets of the municipality, and then provided that the ad valorem tax should be treated as a general fund for use anywhere in the county, except, taxes collected on property within the municipality “ the streets of which are worked at the expense of the municipal treasury,” which should be equally divided between the county road fund and the municipal street fund, the use of the words “ the streets of which are worked at the expense of the municipal treasury ” were inserted for the purpose of showing the reason why a distinction was made between a municipality and other parts of the county. In other words, it is provided that the ad valorem tax should be treated as a general fund for use anywhere in the county, except the taxes collected on property within the municipality, one-half of which is given to the municipality and the other half to the general road fund. Why this distinction ? Because the streets are worked by the municipality and are no burden to the county; and, this being the case, it was just that the municipality should have one-half of the amount raised by taxation of its property for road purposes, when it was keeping np its own roads without expense to the county, and also contributing to the maintenance of the county roads.

We do not think it was intended by the legislature that the phrase in question should be given so technical a construction as to defeat the municipality in the collection of this fund, unless it be shown that the expense of working the streets was actually paid out of money in the treasury collected by ad valorem taxation. The statute does not say that a municipality must bear the expense of working its own streets out of money paid into the treasury by the assessment of an ad valorem tax before it is entitled to claim one-half of the tax levied by the board of supervisors. The reason for the exception in behalf of a municpality is that it is maintaining its own streets without any burden to the county, a thing which no other part of the county does. This is the reason why only one-half the tax collected for road purposes is required to be paid to the county. The reason does not lie in the mere fact that the money is paid out of the municipal treasury to keep up the streets, but that they are kept up without burden to the county. This phrase need not have been in the act, and, being in the act, it is merely put there for the purpose of showing why a municipality is dealt with differently from other parts of the county, and.allowed back part of the money raised by ad valorem taxes for general road purposes on property within its own limits. It was not intended to limit this right only to municipalities which actually paid out to the treasury money collected by ad valorem tax for street purposes only, but to all municipalities bearing the burden of their own streets.

Reversed and remanded.