Opinion
No. 35231.
January 25, 1943. Suggestion of Error Overruled February 22, 1943.
1. SCHOOLS AND SCHOOL DISTRICTS.
Plaintiff, seeking to have tax assessment for school maintenance declared illegal on ground that separate assessment rolls therefor had not been made, had the burden of proof (Code 1930, sec. 6642).
2. SCHOOLS AND SCHOOL DISTRICTS.
A suit to recover taxes paid under protest for school maintenance, on ground that petition for the levy was not presented to board of supervisors before levy was made, was properly dismissed where only record before the court was an order of board of supervisors reciting that the petition had been presented before order making the levy became final (Laws 1932, ch. 168; Code 1930, sec. 6642).
3. EVIDENCE.
The procurement of the passage of a validating act does not necessarily concede the invalidity of the proceedings sought to be validated (Laws 1932, chap. 371).
APPEAL from circuit court of Grenada county, HON. JOHN F. ALLEN, Judge.
W.M. Mitchell, of Grenada, for appellants.
It is practically admitted that the taxes sued for were illegally collected, because of the illegality of proceedings to establish the Greater Gore Springs Consolidated School District and the illegality of the assessment of said taxes. The appellee claims that this was cured by the passage by the legislature in 1942 of the two private acts, passed long after appellants had paid said taxes under protest and entered suit for their recovery, which said acts were introduced in evidence over the objections of the attorney for the appellants, and upon which the court based his findings and judgment against them. Appellants say the said acts were unconstitutional and the lower court erred in admitting and basing his decision thereon.
Hewes v. Langford, 105 Miss. 375, 62 So. 358; Constitution of 1890, Secs. 87, 88, 90, par. p; Laws of 1932, Ch. 168.
Even if these acts were constitutional and did in fact validate the establishment of said school district and the tax levy made therefor, still no legal levy for the fiscal year 1941-1942 could be made under the petition of the taxpayers asking for same, said petition having been presented to and acted upon by the board of supervisors after the making by the board of the regular levy of taxes for said year, since same was in violation of Chapter 168 of the Laws of 1932 requiring petition to be presented before the date of said tax levy.
Evans v. Wright, 126 Miss. 703, 89 So. 226; Laws of 1932, Ch. 168.
Even if the legislature was authorized to validate these proceedings by private acts applicable only to this school district, still such validating acts could not have any retroactive effect and deprive these appellants of a right which had accrued to them and which they had taken legal steps to enforce long before the passage thereof, nor in any event authorize taxing of costs against appellants which had accrued long before same were passed.
Yow v. Tishomingo County School Board, 177 Miss. 821, 172 So. 303.
A tax levied on consolidated school district without separate assessment of property in the district is void.
Morgan v. Wood, Tax Collector, 140 Miss. 137, 106 So. 435; Finkbine Lumber Co. v. Batson, Tax Collector, 151 Miss. 608, 118 So. 443; Craig, Tax Collector, v. Columbus G.R. Co., 192 Miss. 461, 5 So.2d 681.
I respectfully submit that it is immaterial as to whether Section 6642 of the Code of 1930 or Chapter 168, Laws of 1932, apply, or whether both must be considered and given effect, because in either case, we submit, the law was not complied with in the attempted levy of this tax.
S.C. Mims, for Genada, for appellee.
This court will review the judgment of the trial court on the record that was before it.
Appellants incorporated in their statement of facts statements in reference to the defects in the organization of the Greater Gore Springs Consolidated School District. A reading of the record will disclose that this question was not presented to the trial court by either pleadings or evidence. The appellants brought suit to recover tax money paid under protest on the theory that the collection of the same was illegal, and the only proof offered in support thereof was the introduction of the order of the board of supervisors disclosing that at the October term, 1941, the board on the first day of the term entered an order fixing the levy for the fiscal year 1941-1942, and that on the third day of the term the board considered a petition filed that day asking that a levy of 10 mills be made upon the taxable property of the Greater Gore Springs Consolidated School District, describing the territory incorporated in the school district. The board found as a fact that the petition contained the names and was subscribed by a majority of the qualified electors in said school district and expressed its intention to make the levy petitioned for. And the board did amend and modify its former order by making a 10 mill levy upon the taxable property of the Greater Gore Springs Consolidated School instead of the Gore Springs Consolidated School.
At the trial in the circuit court on appeal the appellee introduced the special acts of the legislature. Learned counsel for the appellants take the position that the trial court erred in admitting and considering the special acts; and if such acts had not been considered by the court it necessarily would have found that the tax levy was illegal for the reason that the petition had not been filed before the tax levy had been made, and relies upon the provisions of Chapter 168 of the Laws of 1932. The board of supervisors in making the levy did not do so by authority of this chapter, but did so by and under the authority of Section 6642 of the 1930 Code. This section is controlling in regard to consolidated schools, and the section is silent as to when the petition shall be filed. Chapter 168, supra, applies to public school districts.
I think learned counsel for appellants have placed the wrong construction on the provisions of Chapter 168, supra, if it was controlling in this case. It is manifest that the intent of the legislature was to provide that if public school districts required additional revenue, the levy required to raise the same must be made at the time and at the term when the board made the general tax levy, and that was all. There is nothing to justify the contention that such petition shall be filed before the board convened but only that it be presented at the meeting when the general levy was made.
I cannot see any force to the argument of appellants that because the board had already made the general levy it did not have the authority to modify the same. The law does not require that the order making the levy be entered the first day of the term. The entire order could have been entered the last day, and as long as the board was in session it had the right to change or modify its orders the same as a court during the terms has the authority to rescind or modify its judgments or decrees. The board of supervisors had the petition before it which gave it jurisdiction and it adjudicated and found as a fact that the petition contained the requisite number of petitioners to give it the authority to make the levy. All before it did enter the order modifying the original order, and all at the October term.
This suit is for the recovery of certain ad valorem taxes paid by the appellants to Grenada County under protest for "school maintenance" in the Greater Gore Consolidated School District for the year 1941. The case originated in the justice of the peace court and was heard there and in the circuit court without pleadings other than a statement of the amount of taxes claimed to have been illegally assessed and collected. We must therefore look to the assignment of error and the briefs of counsel to ascertain the grounds upon which the legality of the tax is challenged. It is assigned here as error (1) that the court below admitted in evidence two local and private Acts of the legislature of 1942 undertaking to validate the establishment of the said school district and the levy of the tax in question, in violation of Section 90 of the State Constitution of 1890; and (2) that the court erroneously dismissed the appellants' suit at their cost. The second ground above stated is enlarged upon in the original brief filed by the appellants so as to raise the contention that the petition for this school tax levy was not presented to the board of supervisors before the date upon which the annual tax levy was made, as is required by Chapter 168, Laws of 1932, in regard to tax levies for any public school district. Then, in the reply brief of the appellants, for the first time there is raised the specific question that if the court should hold that the tax was levied under Section 6642, Code of 1930, as contended by the appellee, the tax is invalid because the tax assessor did not make "a separate assessment of the property of such district" as required under the construction given this statute in the cases of Morgan et al. v. Wood, Tax Collector, et al., 140 Miss. 137, 106 So. 435; Finkbine Lbr. Co. v. Batson, Tax Collector, 151 Miss. 608, 118 So. 443. This ground of alleged invalidity of the tax in question will be considered as embraced within the assignment of error that the suit should not have been dismissed by the court below, and we shall respond to the questions in the reverse order in which they are thus raised.
The case was heard in the circuit court without the intervention of a jury and it was agreed that the minutes of the board of supervisors for the October, 1941, meeting and the assessment roll of the county for that year may be introduced without being identified by the clerk. No assessment roll was even introduced in evidence pursuant to this agreement, or otherwise. It was held in the case of Finkbine Lbr. Co. v. Batson, Tax Collector, supra, that it is not necessary that a separate assessment roll be made, or that the assessment of the school property be upon a separate part of the roll; that if the roll contains a column indicating the school district and the lands in such district in an appropriate place on the roll, it is sufficient, although the same page and line also show an assessment of the property for general state and county purposes. As to whether or not the assessment roll in the instant case complied with these requirements the record before us does not disclose. It was of course incumbent upon the plaintiffs to meet the burden of proof in that regard. Even if we were warranted in accepting the recital in Chapter 371, Laws of 1942, as proof that the school district was not created until the October 1941 meeting of the county school board, we would have to assume that such meeting was held prior to the presentation to the board of supervisors of the petition of the majority of the qualified electors of the district on October 8, 1941, asking for a levy of 10 mills for school maintenance on the property therein described, and we are not advised from the record as to whether or not the tax assessor had been afforded ample opportunity after the creation of the district and prior to the making of the levy within which to make the proper notations on the assessment roll as to what property was in the school district, and as to whether or not it was necessary to change the assessed valuation of any property therein as the same appeared on the rolls as of January 1, 1941, the valuation upon which the order of the board made the levy petitioned for. None of the proceedings purporting to create the school district were offered in evidence. The record contains only an order of the board of supervisors, adopted on October 8, 1941, reciting that a petition containing the names of a majority of the qualified electors of the district and asking for the levy of the tax on the property described in the order was then heard, and it was ordered therein that the order making the annual tax levy, entered two days prior thereto, be modified so as to make the school levy on the "Greater Gore Consolidated School District" instead of on the "Gore Consolidated School District" as provided in the said prior order. Therefore, it affirmatively appears that the petition was presented to the board before the order making the annual levy became final, as modified. Hence if Chapter 168, Laws of 1932, has any application to a levy of taxes for the support and maintenance of a consolidated school, the same has been complied with in the instant case.
Under the foregoing state of the record, it becomes immaterial for the purpose of this decision whether or not the so-called validating acts are in violation of Section 90 of the Constitution, since we are unable to say that the record discloses any necessity for the enactment of curative legislation in the premises. It is true that all things requisite to the validity of the proceedings creating the district, making the separate assessment required by Section 6642, Code of 1930, and the levy of the tax complained of, must affirmatively appear of record, but it was neither agreed nor shown by proof that this record contains all of the acts, orders and proceedings that may so affirmatively appear of record.
There is no merit in the contention that the procurement of the passage of validating acts necessarily concedes the invalidity of the proceedings sought to be validated.
Therefore the judgment of the court below must be affirmed.
Affirmed.