| Miss. | Oct 15, 1917
Lead Opinion
delivered the opinion of the court.
This suit was begun in the court of a justice of the peace' of Panola county. The cause of action is thus stated:
Town of Crenshaw v. Panola County.
Panola County, Mississippi, Dr., to the Town of Crenshaw, a Municipality.
To one-half of one-mill road tax collected on property within the corporate limits of said town of Crenshaw for the year 1907..................$102.21
To one-half of one-mill road tax collected on property within the corporate limits of said town of Crenshaw for the year 1908.................. 96.49
$198.70
Judgment was rendered by the justice of the peace in favor of the plaintiff, the town of Crenshaw, and the defendant, Panola‘county, appealed to the circuit court, in which court the judment of the justice of the peace
The case was submitted to the learned circuit judge upon an agreed statement of facts as follows:
“In this case it is agreed that the following constitutes an agreed statement of facts:
“That during all the years 1907 and 1908 the town of Crenshaw was a duly constituted municipal corporation, situated in said county and state of Mississippi, and that during all of said years 1907 and 1908 the streets situated within the corporate limits of said county were worked wholly at the expense of the treasury of said municipality and by the municipal authority of said town, and that the county of Panola did not work on any of the streets of said town, nor paid any part of the expense of working the streets situated within the corporate limits of the said town, during either of the said years.
“That the board of supervisors of Panola county, acting under the authority of section 4443 and other similar .provisions of the Mississippi Code of 1906, levied a one-mill ad valorem tax upon all taxable property in said county of Panola, including the taxable property situated within the'corporate limits of said town of Crenshaw, for each of said years 1907 and 1908, and the tax collector of said county of Panola collected said one-mill acl valorem tax upon all of the taxable property situated within the corporate limits of said town of Crenshaw for each of the said years 1907 and 1908, the gross amount of said one-mill tax levied and collected for the years 1907 being two hundred and four dollars and forty-two cents, and the gross amount of said taxes collected for the year 1908 being one hundred and ninety-two dollars and ninety-eight cents; that said taxes was not divided between the county road fund and the municipal street fund of said town of Crenshaw, and no part thereof was ever paid over to the said town of Crenshaw, and no part thereof ever received by it.
*900 “That all of said above-described .taxes for each of the years of 1907 and 1908, less the commission allowed to said tax collector, which on the amount herein sued for is agreed to have been six dollars and fifty cents, were by the tax collectors of said county of Panola turned over to the county treasurer and placed to the credit of the separate road fund of said county along with the other ad valorem road tax levied and collected as above, and were by the proper officers of said county expended for the working of the public roads of said county throughout said county of Panola, including the public roads leading to and about the said town of Crenshaw, but not including any roads or streets within the corporate limits of said town of Crenshaw; that said amounts have long since been expended by said county of Panola, and that no demand was ever made by the said town of Crenshaw upon the said count for the. payment over to it of any part of said fund until sometime in the year 1915; that no part of said funds is now in the county treasury, and no part of said funds was in the county treasury at the time of the presentation of the claim by the said town of Crenshaw to the said county for payment; that none of the amounts sued for were ever placed to the credit of the general .funds of said county of Panola.
“That the said town of Crenshaw duly presented a claim in writing to the board of supervisors of said county of Panola for said amounts sued for, which claim was by the said board of supervisors declined; all of which was done before suit was instituted.
“This statement and agreement of facts shall not prejudice in any way the right of defendant county to object to the jurisdiction of the court, or to ask that same be transferred to the chancery court.”
We here copy the opinion of the judge, viz.:
“In the decision of this case there are two important questions to be considered, i. e.: (1) Whether or not section 104, Constitution of Mississippi, applies to suits between a county and a municipality, a county and the*901 state, or where the interest of any two of them, may conflict; or (2.) whether or not a municipality, entitled to a moiety of road taxes collected by the provisions of sections 44431 and 4460, Code of 1906i, may, without protest, see the entire tax paid over to the county treasurer, and by him credited to the separate road fund of the county, and all of it expended by the proper authorities of the county in working the county roads, including those of the particular district in which the municipality is situated, and even upon those roads leading into the municipality, and then, after the lapse of years, sue for and recover of the county its pro rata share thereof.
“Under the Code section referred to, I think the tax collector should account directly to the municipality whose streets are worked at the expense of the municipal treasury for their part of the fund collected, and thus save any conflict or confusion that might result from payment thereof into the county road fund, against which', under, our present deplorable credit system, warrants might be outstanding that would consume the entire amount; but the question is not involved here.
‘ ‘ This suit is for the taxes collected for the years 1907 and 1908, the collection, amount, and appropriation of which to the county roads is agreed upon, and that no demand whatever was made therefor until some time in the year 1915', when, the same being rejected by the board, of supervisors, the town of Crenshaw sued the county of Panola before a justice of the peace, where a plea of the six-year statute of limitations and the general issue, with notice, was interposed, and from whose decision an appeal was taken to this court.
“I have made diligent search for some authority to assist me in determining what, if any, application section 104 or the Constitution and section 3096, Code of 1906, should have to a suit by a municipality against a; county, but have not been able to find anything bearing, even remotely, upon the question, but it is in my opinion*902 that section 104 of the Constitution was intended solely to prohibit the legislature from authorizing the statute of limitations to run against the state, counties, and municipalities so far as only individuals and private corporations were concerned, and that there was no purpose to deal with the question where a conflict between the beneficiaries of the provision might be involved.
“Taking this view of the section 104, and recognziing the principle that statutes of limitations do not ruin against the state or county unless expressly so intended as to them, and that general statutes of limitation do run against municipalities, I conclude that the plaintiff here, the town of Crenshaw, is barred by the six-year statute.
“Considering the second question raised by this record, my attention is called to the decision of the supreme court of this state in Holly Springs v. Marshall County, 104 Miss. 752" court="Miss." date_filed="1913-03-15" href="https://app.midpage.ai/document/city-of-holly-springs-v-marshall-county-7991513?utm_source=webapp" opinion_id="7991513">104 Miss. 752, 61 So. 703, but I am not convinced that it has any application at all to the facts in this case. There it is not shown that the municipality had not protested against the payment of the taxes into the general road fund, or against expenditure thereof, or that the amount was not then in the county treasury, or that there had been any delay in making the demand, all of which is perfectly clear here.
“To permit a municipality, even in ignorance of its rights, being entitled to one-half of the ad valorem, road taxes collected under the provisions of the statutes referred to, to stand quietly by and see the county authorities receive and expend the whole fund upon roads, some of which lead into the town, and then, after the lapse of six years, during which it may be that the very expenditure had contributed as much to its upbuilding as if made upon its streets, to maintain a suit against the county for such taxes, is equivalent to approving. the demand for the return or value of a thing given away that had been consumed in the presence of the giver and*903 is opposed to the rule, as expressed in 37 Cyc. 1178, prohibiting the recovery of taxes voluntarily paid.
“My attention is called to the case of City of Sanford v. Orange County, 54 Fla. 577" court="Fla." date_filed="1907-06-15" href="https://app.midpage.ai/document/city-of-sanford-v-county-of-orange-4916976?utm_source=webapp" opinion_id="4916976">54 Fla. 577, 45 So. 479, which, so far as the facts are concerned, is hardly distinguishable from the case presented here, and in which it was held that no recovery could be had against the county which' had received and expended the fund. The decision there, however, is grounded upon the laches of the city in not protesting against the use of the funds and in making no demands for it until after it had been expended, and the suggestion is made that, if the money had been in fund the proper remedy was mandamus.
“I cannot accept the grounds upon which the Florida court based its decision, i. e., laches, as our statutes of limitation must alone be looked to in such cases, but without any statute of limitation (which in my opinion we have that it applies in this case) 1 think that the plaintiff is estopped by its conduct now to assert any claim to the fund. Let the judgment be for the defendant. ’ ’
It will be observed that the trial judge was of opinion that sections 4443 and 4469' contemplated that the tax collector should account directly with the municipality, but he also says that this question was not involved. Counsel, however, make the point that the statutes put the duty upon the tax collector, and that the county cannot be held liable for the mistakes of the collectors.
It is our opinion that the statutory scheme contemplates that the board of supervisors shall supervise the distribution of the funds; otherwise there would be no record thereof. Section 104 of our Constitution expressly provides that the statutes of limitation shall not run against municipal corporations. The plaintiff in this case is a municipal corporation, and we can find nothing in the Constitution to warrant the exception sought to be made in this case. The county could, of
The attorney for the county cites Pippin et al. v. Town of Blountstown, decided by the supreme court of Florida, and reported in 74 So. 653" court="Fla." date_filed="1917-02-15" href="https://app.midpage.ai/document/pippin-v-state-ex-rel-town-of-blountstown-4919283?utm_source=webapp" opinion_id="4919283">74 So. 653, as conclusive against the municipality. We think the opinion in that case is entirely sound, but it will be noted that the town in that case instituted a proceeding in mandamus, while the case at bar is not a mandamus proceeding, but is a case to recover money from the county which it had wrongfully received and expended. In the Florida Case, supra, the county manifestly could not pay over the money received by it, because it had been expended. It would, of course, be a vain thing to order the county to pay over to the town certain money which it did not possess.
In the consideration of this case, it must be borne in mind that this is not an action by which it is sought to require the county to pay the claim, but it is an action to review the action of the board of supervisors rejecting the claim. This court, in Holly Springs v. Marshall County, 104 Miss. 752" court="Miss." date_filed="1913-03-15" href="https://app.midpage.ai/document/city-of-holly-springs-v-marshall-county-7991513?utm_source=webapp" opinion_id="7991513">104 Miss. 752, 61 So. 703, expressly decided the precise question presented by this ¡appeal. In other words, it was there decided that the county must pay over to the city one-half otf the road taxes collected by the county. That was a suit to establish the liability of the county, and so is the present suit. The case cited was not a mandamus proceeding to require the county to pay, and neither is this a suit to require payment; it is merely a suit to establish liability. When it comes to collection, án entirely new question will be presented. The question will then be: Will the court issue its mandate commanding a payment of the judgment?
In Holly Springs v. Marshall County, supra, the court rendered its’ judgment for the money received by the
The rule here considered is thus stated in Euling Case Laws, vol. 7, p. 967:
“The mere authorization of suit against a county does not imply, necessarily, a means of enforcement of a judgment therein obtained. When a judgment is rendered against a county, it is the duty of the commisr sioners to apply such fund's in the treasury of the county as are not otherwise appropriated to its payment, or if there are no funds, and they possess the requisite power, it is their duty to levy a tax for that purpose, but if they have no funds, and the power to levy the tax has not been delegated to them, such tax cannot be levied without express legislative authority.”
The town in this case should have had judgment; the facts are undisputed. When it comes to enforcing payment, we will consider the question argued below and here. This question is not now before us.
Reversed, and judgment here.
Dissenting Opinion
(dissenting.)
I am of opinion: First, that a county has no power to divert, either directly or indirectly, money collected by taxation for general county purposes to the building and maintenance of public roads;' second, since it appears from the declaration that road funds here sued for have been spent by the county, it can only pay the judgment here rendered by diverting to that fund money collected by taxation for general county purposes ; thereby doing indirectly what I am clearly of the opinion it could not have done directly. From which it 'follows that I am of the opinion, third, that no judgment should be rendered against the county herein, and that the judgment of the county court below should be affirmed.