Opinion
No. 34173.
May 27, 1940. Suggestion of Error Overruled June 10, 1940.
1. HIGHWAYS.
A municipality to be entitled to its proportionate part of ad valorem road taxes collected on property within municipality should have filed with the county board of supervisors an ordinance or some other appropriate record, showing that the municipality worked its streets at its own expense and would claim its share of road taxes collected within its limits.
2. COUNTIES.
The members of a county board of supervisors could not be held personally liable on their bonds for failure to make an allowance to municipality from county treasury of its proportionate share of ad valorem road taxes collected on property within municipality in absence of pleadings or proof that it was a ministerial duty only and not a judicial power that was being exercised by the board in passing on municipality's application for its share of taxes (Code 1930, sec. 2915).
3. JUDGMENT.
If members of county board of supervisors were liable for state tax collector's commission on collections of ad valorem road taxes collected on property within a municipality, collector could have joined members and their sureties for purpose of recovering his commission in his suit against county for use of municipality to recover municipality's proportionate share of taxes, and an independent suit could not be maintained for that purpose after recovery of judgment for taxes (Code 1930, sec. 2915).
4. ACTION.
It is the policy of the law to have all matters settled in one suit and to avoid a multiplicity of suits.
5. PARTIES.
Where the demands in a suit can be made to embrace all the demands on the part of a plaintiff, all the necessary parties should be brought in so that a complete adjudication of all pertinent matters can be made in the one suit.
ON SUGGESTION OF ERROR. (Division B. June 10, 1940.) [196 So. 649. No. 34173.]1. HIGHWAYS.
Under statute, a municipality may demand of county municipality's share of ad valorem tax collected within corporate limits for road purposes only where the streets of the municipality have been worked at the expense of the municipal treasury, or by municipal authority (Code 1930, sec. 6417).
2. HIGHWAYS.
A municipality to be entitled to its proportionate part of ad valorem road taxes collected on property within municipality should have filed with county board of supervisors an ordinance or some other appropriate record showing that the municipality worked its streets at its own expense, since such showing was jurisdictional to board's power to make the allowance, but municipality was not required to give notice of its intention to claim its share of the taxes (Code 1930, sec. 6417).
APPEAL from circuit court of Monroe county; HON. CLAUDE F. CLAYTON, Judge.
On suggestion of error. Former opinion modified and suggestion of error overruled.
Thomas F. Payne, of Aberdeen, for appellant.
This suit was filed by the City of Aberdeen, Mississippi, under Section 2915 of the Mississippi Code of 1930. The lower court, adopting the argument of counsel for appellees, held that members of the Board of Supervisors are not such officers as was in the contemplation of the legislators when they enacted this section and that the only officer in the contemplation of the legislators who enacted this statute were, "Such officers as those who have public funds actually in their possession, such as a tax collector prior to the time of making settlement with the county treasury or county depository, or a state treasurer who has in his actual possession the funds of the state subject to the order of warrants drawn on the state treasury, a fiscal agent and not a quasi judicial officer."
And the lower court further held that the word custodian used in this section could not be properly applied to a Board of Supervisors, "who, although exercising control over a part of the funds of the county, to say the least, have no funds of the county actually in their possession."
We take issue squarely with counsel for the appellee and the lower court. We respectfully insist that this section needs no judicial enlargement and that the action of the lower court amounted to an emasculation of this section by adding to it what he thought the legislators intended. This section is perfectly plain, and if it means anything it means exactly what it says.
It is the purpose of this section to preserve in its integrity the public funds and property in this state, and it shall be so construed that the commissions, if any, and fees of the attorney general and the state tax collector, and all other costs of collection must be borne by such derelict official or custodian.
Section 6417 of the Mississippi Code of 1930 provides that one-half of all ad valorem taxes collected by or for a county or separate or special road district on property within a municipality (the streets of which are worked at the expense of the municipal treasury or worked by municipal authority) for road purposes of such county or district . . . shall be paid over to the treasury of such municipality for said municipality.
To hold that these supervisors who are public officers and in whose constructive custody these funds are kept are not such officers as this statute was intended to apply to, we respectfully insist, destroys the force and effect of this section.
Section 2015 further provides that such public official who improperly withholds such funds from the authority whose duty it is to receive the same or shall fail to turn the property over to the proper custodian shall be liable on his bond for all costs of collection or recovery of money or property, including in such cost the commissions, if any, of the state tax collector . . . and all other costs connected therewith including interest on funds improperly withheld for such time as such funds have been withheld.
We call the court's attention to the last paragraph in Section 2915, supra, which seems to us to cover the question at issue in this case completely and squarely, in which the statute provides that it is the purpose of this section to preserve in its integrity the public funds and property in this state, and it shall be so construed that the commissions, if any, and fees of the attorney general and the state tax collector and all other costs of collection must be borne by such derelict official or custodian.
Section 6417, Code 1930, does not require municipalities to notify counties of their intention to claim one-half of the ad valorem taxes collected within the municipalities for road purposes.
Gully, State Tax Collector, v. Bd. of Supervisors of Copiah County, 167 Miss. 562.
Our Supreme Court has been very sensitive to any effort on the part of the Board of Supervisors in defeating the plain legislative intent that one-half of all ad valorem taxes collected on property within the municipality for road purposes must be and shall be paid to the municipality.
Town of Purvis v. Lamar County, 161 Miss. 454; Gully, State Tax Collector, v. Attala County, 165 Miss. 86.
It may be true that the supervisors are not actually the custodians of public funds but they are constructive custodians of the public funds, but regardless of whether they are actual or constructive custodians, these appellees, to-wit, these members of the Board of Supervisors certainly improperly withheld this money from the appellant since they alone had the right to order the money withdrawn from the public funds by warrants and they failed and refused to do so notwithstanding the statute, Section 2915, Code of 1930, which expressly provides that they must pay these funds over to the municipality, to-wit, the appellant.
D.W. Houston, Sr. Jr., of Aberdeen, for appellees.
Appellant based its suit solely and alone upon Section 2915 of the Mississippi Code of 1930.
A clear analysis of this section which was Chapter 328 of the Laws of 1924 and Chapter 90 Extra Session of 1928 immediately brings to the mind of the court that this is a highly penal statute and that it must be strictly construed, and to hold one liable thereunder there must be no doubt left as to such person falling clearly within such designated class of officers and who violates the literal terms thereof. It cannot be extended by construction or otherwise.
Gully v. White, 167 Miss. 691, 146 So. 852.
It is conceded that Section 6417 of the Mississippi Code of 1930 provides that one-half of all ad valorem taxes collected by or for the county, etc., within the municipality (the streets of which are worked at the expense of the municipal treasury) for road purpose of such county, etc., belongs to the municipality, etc., and that Section 6418 of the Code provides the method of payment to municipalities "on application to the Board of Supervisors of the County" in which located, etc., but neither these statutes, nor Section 2915 nor any other statute, make Boards of Supervisors, "Custodian" or "Custodians" of such funds. In fact, such funds never come into the corporal or physical custody of said Board of Supervisors, nor do such funds ever come into the hand or hands of said Board of Supervisors, or any single member thereof, by virtue of their official position or positions.
The very wording of the statute itself shows this: The word "Board" is not used anywhere therein, and is excluded therefrom by the very words of the statute itself which relates to persons in the singular, and not in the plural, thus excluding boards, bodies or commissions.
This statute has been up and considerably narrowed in its scope by this court in several different cases, among which are the cases of:
Gully v. White, 167 Miss. 691; Winston County v. Louisville Home Bank, 164 Miss. 64, 143 So. 884; Gully v. Biloxi, 177 Miss. 782, 171 So. 198; Gully v. Biloxi, 182 Miss. 723, 180 So. 821; Bank of Indianola v. Miller, 147 Miss. 695, 112 So. 877; U.S.F. G. v. Rice, Atty. Gen., 185 So. 563.
These particular cases are principally applicable to the extent of showing to what narrow limits said Section 2915 will be confined, and clearly show that it was, and is, a highly penal statute intended so by the legislature, and will, and can, not be extended by construction, and with such a limitation being placed thereon could not by the wildest stretch of imagination be extended to cover Boards of Supervisors or the subject matter involved in the suit of Gully for use of City of Aberdeen v. Monroe County referred to in the declaration, and the judgment exhibited thereto.
Certainly it cannot be said that the funds herein referred to came into the hands of the Board of Supervisors within their immediate care and control or as is contemplated by Section 2915.
Certain it is that the Board of Supervisors acting as they do, and as it is apparent they did in the instant case, in a quasi-judicial and discretionary capacity, cannot be held liable, either as a board or individually, and consequently the lower court was eminently correct in sustaining the demurrer and discharging the defendants and the surety on their bonds.
15 C.J. 478 (132); 22 R.C.L. 487; Paxton v. Baum, 59 Miss. 531; Paxton v. Arthur, 60 Miss. 832; Bell v. McKinney, 63 Miss. 187; State, to use of Lincoln County, v. Green, County Superintendent of Education, 71 So. 171; Pegram v. State, 83 So. 741; McNulty v. Vickery, 88 So. 718; Pidgeon-Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Monnier v. Godbold, 116 La. 165, 40 So. 604, 4 L.R.A. (N.S.) 463, 7 Ann. Cas. 768; Blanchard v. Burne, 110 Ark. 515, 162 S.W. 63, 49 L.R.A. (N.S.) 1199; Reese v. Isola State Bank, 105 So. 636; Miller v. Tucker, 105 So. 774; National Surety Co. v. Miller, 124 So. 251; Gully v. Thomas, 158 So. 465; State v. Forbes, 174 So. 67; Lee County v. James, 178 Miss. 554, 174 So. 76.
Argued orally by Thomas F. Payne, for appellant, and by D.W. Houston, Jr., for appellees.
This is a suit brought in the Circuit Court of Monroe county by the State, for the use of the City of Aberdeen, to recover from the county in its corporate capacity, and from the individual members of the Board of Supervisors and their bondsmen, the proportionate part of ad valorem road taxes to which the municipality claims to be entitled; the State Tax Collector having collected on behalf of the municipality its proportionate part of the road district funds of the fourth supervisors' district of the county in which the municipality is situated.
It was alleged in the declaration that the members of the Board of Supervisors improperly withheld from the City of Aberdeen certain ad valorem taxes collected therein for road purposes, the taxes for the various years being set forth; and that the roads or streets of the municipality were worked at the expense of the municipal treasury, under municipal authority. That the said funds due the municipality had been collected and paid over to the credit of the county by the sheriff; and that said county, through its Board of Supervisors, improperly withheld the money due the City of Aberdeen, or failed to turn over these moneys to the city, the proper custodian of same. That demand had been made by the municipality after the rendition of judgment in favor of the State Tax Collector; and that because of the failure of the Board of Supervisors to turn over to the municipality the taxes due it, it resulted in a loss to the City of Aberdeen of the 20% commission retained by the State Tax Collector in the sum of $1,200.77. That demand had been made for the amount of such commission, which demand had been refused.
The judgment in the former suit against Monroe county by the State Tax Collector for the use of the City of Aberdeen was made an exhibit to the declaration, as were the surety bonds of the members of the Board of Supervisors. It appears that the State Tax Collector had therein made demands, and brought suit against the county for the taxes due the city for the years involved, in the sum of $9,115.78, with interest thereon at 6% per annum; and it is recited in the judgment that, "Whereas, at the present term of this court the said cause came on for hearing and by consent of the parties judgment was entered for and in behalf of the plaintiff in the sum of Four Thousand Dollars ($4,000.00) to be paid out of the road fund of the Fourth Supervisor's District of said County." It is further recited in the judgment that; "Whereas, on March 10, 1938, the defendant, Monroe County, by its warrant drawn on the Treasury of the Fourth Supervisor's District Road Fund of said county, paid to the defendant said sum of $4,000.00, which said sum of $4,000.00 and the said two payments of $1,003.84 and $1,000.00 made respectively in April and May, 1937, direct to the City of Aberdeen to apply on the 1935 taxes, is a full and complete settlement and payment of all of said taxes due by defendant, Monroe County, payable out of the road fund of the Fourth Supervisor's District of said county to said City of Aberdeen for all of said years save and except the year 1930 which is eliminated from this suit."
The judgment is too lengthy to set out in full, but it appears therefrom that the demands of the State Tax Collector were in excess of the amount which the Board of Supervisors or the county considered to be due, and it seems to have been a compromise judgment rendered in the court on the agreement of the parties to the suit.
The declaration filed by the State Tax Collector in that suit is not made an exhibit; and the declaration in the present case does not show that the amounts claimed by the State Tax Collector were matters of record on the books of the county; nor does it appear therefrom that at the time the taxes were collected by the county any certificate or claim had been made by the City of Aberdeen, showing that its streets were worked at the expense of the municipal treasury. The declaration in the present case merely alleges that such were the facts — that is to say, that the city did work its streets at the expense of its municipal treasury, but does not aver that such certificate or record had been presented to the Board of Supervisors, or to the county authorities, at the time the taxes were collected, or subsequent thereto.
The judgment rendered in favor of the State Tax Collector seems to have been a full settlement of the matters in controversy between the State Tax Collector, acting for the municipality, on the one hand, and the Board of Supervisors and the county on the other. In order for the municipality to be entitled to ad valorem taxes for road purposes, such taxes being collected on property within the municipality, it should have filed with the Board of Supervisors an ordinance or some other appropriate record, showing that the municipality worked its streets at its own expense, and would claim its share of the ad valorem tax, collected within the limits of the municipality, for such purpose.
We do not deem it necessary here to enter upon a discussion of whether the Board of Supervisors was acting in a judicial or a quasi-judicial capacity in passing upon the application of the city for ad valorem taxes collected for road purposes; or whether it was under the duty to allow to the municipality such share of the ad valorem taxes to which it might be entitled, in a ministerial capacity merely, about which it had no legal discretion.
In order for members of the Board to be personally liable on their bonds for failure to make this allowance to the municipality from the county treasury, it would have to appear, by pleadings or proof, that it was a ministerial duty only, and not a judicial power, that was being exercised. That does not appear in the present case.
Furthermore, the State Tax Collector has a right to demand in his suit, if the members of the Board of Supervisors were liable therefor, his commission of 20% on collections, and for that purpose could have joined the members of the Board of Supervisors and their sureties in the original suit.
Under section 2915, Code of 1930, the members of the Board of Supervisors, for the expense of collecting, would of course be limited to faults flowing from ministerial or non-discretionary duties — not in matters where the Board has a legal discretion, or judicial or quasi-judicial powers.
It is the policy of law to have all matters settled in one suit, and to avoid a multiplicity of suits. Where, as here, the demands in the first suit could have embraced all the demands on the part of the municipality, that course should have been pursued, bringing in all the necessary parties thereto, so that a complete adjudication of all pertinent matters could have been made in one suit.
The soundness of the judgment rendered is not affected by the reasons given therefor by the learned judge in the lower court. While we do not pass upon the sufficiency of those reasons, if properly presented, which influenced the opinion, the final result reached was correct, and the judgment must be affirmed.
Affirmed.
ON SUGGESTION OF ERROR.
It is only where the streets of a municipality have been worked at the expense of the municipal treasury, or by municipal authority, that its share of the ad valorem tax collected within the corporate limits for road purposes may be demanded of the county under section 6417 of the Code of 1930. And it was held in the case of Gully, State Tax Collector, v. Board of Supervisors of Copiah County, 167 Miss. 562, 147 So. 300, that said statute does not require municipalities to notify counties of their intention to claim one half of such taxes. In the former opinion in the case at bar we said that: "In order for the municipality to be entitled to ad valorem taxes for road purposes, such taxes being collected on property within the municipality, it should have filed with the Board of Supervisors an ordinance of some other appropriate record, showing that the municipality worked its streets at its own expense, and would claim its share of the ad valorem tax, collected within the limits of the municipality, for such purpose."
We make a distinction between the necessity for notifying the Board of Supervisors of the fact that the streets of the municipality have been worked at the expense of the municipal treasury, or worked by municipal authority, and the fact that the claim for its share of the ad valorem taxes will be made; and we adhere to the holding that in the latter instance no notice is required, while in the former it is necessary that the Board of Supervisors be officially advised of the basis of its authority to make the refund, for the reason that it is only where such streets have been worked at the expense of the municipal treasury, or by municipal authority, that the board is required, or given the power and authority, to make the allowance. It is jurisdictional.
However, we think that the statement above quoted from the former opinion in the instant case should be modified to the extent of withdrawing therefrom the words, "and would claim its share of the ad valorem tax collected within the limits of the municipality, for such purpose," as being in conflict with the language employed in discussing that point in the case of Gully, etc., v. Board of Supervisors, etc., supra.
Since such modification does not change the result of the former opinion herein, the suggestion of error will be overruled.
Suggestion of error overruled.