VANZANDT v. TOWN OF BRAXTON

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No. 35377.

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Roberds, J., delivered the opinion of the court.

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VANZANDT v. TOWN OF BRAXTON.

Hilton Kendall, of Jackson, for appellant.

The appellee in this suit seeks to recover from the appellant special school taxes alleged to have been levied and assessed against the lands and personal property of the appellant for the support and maintenance of the Braxton Municipal Separate School District and for retirement of bonds and coupons of the said school district. The warrant for such a suit, if any there be, can only be found in Section 3122, Code of 1930. Before the enactment of the foregoing statute, no suit would lie for the collection of unpaid taxes as a debt; a new remedy was provided thereby. See Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190. No such right existed at common law. Therefore, this statute (Sec. 3122, Code of 1930), being in derogation of the common law, must under the elementary rules of statutory interpretation be given a strict construction. Any person claiming a right or privilege thereunder must find their warrant or authority therefor within the express letter of the statute and its provisions cannot be extended by implication or judicial interpretation.

Turning now to the statute itself, we find that it makes a debt recoverable by action of "every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem, excise, income or inheritance. . . ." Not a word is said about school district taxes, either separate or consolidated, and, therefore, under the rule of strictissimi juris applicable here, the conclusion that such taxes were not and are not included by the provisions of the statute is inevitable.

See Nickey et al. v. State ex rel., 167 Miss. 650, 145 So. 630.

And, lest it be urged that the school district taxes are levied by the board of aldermen and therefore are "levied or imposed . . . by a . . . municipality" within the terms of the statute, we point out that drainage district taxes, under our law, are levied or imposed by the board of supervisors upon recommendation of the drainage district commissioners, an analogous procedure.

See Secs. 4397, 4398, Code of 1930.

We, therefore, assert that school district taxes are not included within the provisions of Section 3122 of the Code and are not a debt for which a personal judgment is recoverable; that, for this reason, this cause should be reversed and judgment for the appellant rendered here.

This suit was filed by the town of Braxton, purporting to act by and through its mayor and board of aldermen. The demurrer filed by the appellant and incorporated in his answer specifically challenged the sufficiency of the bill on the proposition that, if any cause of action existed, same was not vested in the appellee but was vested either in the tax collector of the town of Braxton, or in the Braxton Municipal Separate School District. We point out here that this was not an objection addressed to the mere misjoinder of parties, but one that went to the very root of the action — that is, the right of the complainant in the court below to maintain the suit. We submit earnestly that the lower court erred in overruling this demurrer. Section 6662, Code of 1930, as amended by Chapter 260 of the Laws of 1934, provides that the taxes shall be collected for all school purposes in the same manner as the taxes on property within the municipality are collected. Section 2584, Code of 1930, provides that the tax collector shall collect municipal taxes in like manner as state and county taxes are collected. By virtue of these two sections the municipal tax collector is constituted the tax collector for the municipal separate school district, and he is required to collect the school district taxes, including levies for retirement of bond issues, in the same manner and at the same time as municipal and state and county taxes are collected.

Therefore, it appears that the tax collector of the town of Braxton, thereby being the tax collector of the school district would have been the proper and necessary party complainant in any action brought by the municipality for the collection of delinquent taxes. By our statutory system of tax collection, the tax collector, whether county or municipality, is charged directly with the responsibility for the collection of the taxes due to the taxing authority and, where jurisdiction or authority is by a statute expressly deposited, such jurisdiction and authority is exclusive and the designated person has full and sole power in that field.

We find, too, that Section 6986, Code of 1930, gives express power to the State Tax Collector "to proceed by suit in the proper court against all persons, corporations, companies and associations of persons for all past due and unpaid taxes of any kind whatever, whether of the state, county, municipality, drainage, levee or other taxing district, or any subdivision thereof . . ." The right of the State Tax Collector to sue for such delinquent and unpaid taxes has been upheld in numerous cases and in the case of Gully v. Denkmann Lumber Co. et al., 177 Miss. 164, 170 So. 151, it was held that in a suit by the State Tax Collector for the collection of taxes, the Tax Collector has exclusive control of the litigation, and the taxing districts are not parties thereto, except in the sense that the State Tax Collector is acting for their benefit.

Further, as was expressly decided in the case of Stevens v. City of Brookhaven (5th C.C.A.), 64 F.2d 659, a municipal separate school district constitutes a distinct legal entity and has full power to sue and be sued. Therefore, as these taxes are levied, assessed and collected for its benefit, and as such a school district has the sole right to the use and benefit of said tax funds, it appears that a suit for the collection of the unpaid taxes could properly be brought by them. The municipality acts only as the levying and assessing body for the municipal separate school district. The municipality, as such, has no title to the funds so collected. It is true that these tax receipts go into the city depository but they do so as a separate fund which is subject to the order of the school authorities. The school affairs and the disbursements of its funds are in the hands of the board of trustees of the school district.

Therefore, we say that this suit could properly have been brought by: (1) The tax collector of the town of Braxton, who, by virtue of his office, was also the tax collector of the Braxton Municipal Separate School District; (2) The State Tax Collector, by virtue of the authority of Section 6986, Code of 1930; or, (3) the Braxton Municipal Separate School District, the real party in interest. However, the town of Braxton is not, under the law, the proper party to maintain this suit and it does not have sufficient interest therein to support it. Therefore, we submit that the appellant's demurrer was erroneously overruled by the lower court.

James B. Sykes and Frank T. Williams, both of Mendenhall, for appellee.

This suit was filed under the provisions of Section 3122 of the Mississippi Code of 1930. A strict construction of this section shows that the appellee here comes literally within the statute because the debt is shown to be imposed for "a lawful tax assessed by a municipality," and is an "ad valorem tax." It is argued by counsel for appellant that this statute does not include school district taxes, either separate or consolidated, and that therefore a municipality does not have the right under said statute to bring this character of suit. Certainly the words "school district taxes" are not embraced in said statute, but the word "ad valorem tax" is so embraced, and the right is given thereunder to bring suit for every lawful tax assessed, levied or imposed, and the law, Section 6662 of the Code of 1930, as amended by Chapter 260 of the Laws of 1934, requires the mayor and board of aldermen of municipalities to levy taxes for the support and maintenance of separate school districts.

Counsel states that logical support for his contention is found in the case of Nickey et al. v. State ex rel., 167 Miss. 650, 145 So. 630. We do not so construe the court's opinion. This was a suit which was brought under Section 3122 of the Code of 1930, and the court said that said section does not cover drainage district taxes, and the reason was that the taxes sought to be recovered by said suit are a charge only on the land against which they are assessed. Therefore, such taxes are not ad valorem but are taxes assessed and levied in proportion to the benefits received without regard to the value of the land. Therefore, a strict construction of the statute in the instant case shows that the appellee here comes literally within the statute, because the debt is sought to be imposed for a lawful tax assessed by a municipality and is an ad valorem tax, and for which we maintain that suit may be brought under said section.

The appellee was the proper party to bring this suit and has sufficient interest in the subject matter to maintain same.

1. SCHOOLS AND SCHOOL DISTRICTS.

The mayor and aldermen or other governing body of a municipality have authority to levy separate school district tax on all property within the district whether located within or without municipal limits (Code 1930, sec. 6662, as amended by Laws 1934, chap. 260).

2. SCHOOLS AND SCHOOL DISTRICTS.

Taxes are collected for all school purposes, including bond issues, by tax collector of municipality located in district, except that municipality by resolution upon its minutes may authorize county tax collector to collect tax on property within district lying outside municipal corporate limits (Code 1930, sec. 6662, as amended by Laws 1934, chap. 260).

3. SCHOOLS AND SCHOOL DISTRICTS.

Municipal tax collector collects separate school district taxes in the same manner and under the same penalties as state and county taxes are collected (Code 1930, sec. 2584).

4. SCHOOLS AND SCHOOL DISTRICTS.

Separate school district tax money is paid to municipality located within the district for the benefit of the district (Code 1930, secs. 6657, 6731, and sec. 6662, as amended by Laws 1934, chap. 260).

5. SCHOOLS AND SCHOOL DISTRICTS.

Trustees of separate school districts have power to regulate and conduct schools, hire teachers and fix their salaries, make reports of expenses, and recommend budgets to municipality located within district, but have no power to levy or collect taxes or issue warrants paying out funds of the district (Code 1930, sec. 6665).

6. SCHOOLS AND SCHOOL DISTRICTS.

A municipality within separate school district could maintain a suit in its own name on behalf of school district for unpaid separate school district taxes on land located within the district (Code 1930, secs. 2584, 6657, 6665, 6731, and 6662, as amended by Laws 1934, chap. 260).

7. TAXATION.

At common law, no personal liability existed on the part of owner for unpaid taxes against his property.

8. STATUTES.

Statute making a tax assessed by state, county, municipality, or levee board a debt due by person owning property or carrying on business or profession or liable for income, inheritance, or excise tax, and providing for recovery of tax by action, created a new liability and a new remedy and hence should be construed favorably to taxpayer (Code 1930, sec. 3122).

9. MUNICIPAL CORPORATIONS. Schools and school districts.

The statute imposing a personal liability for taxes assessed by state, county, "municipality," or levee board uses word "municipality" as meaning that tax is for municipal purposes, and not merely that municipality has power to levy and collect tax for the benefit of separate school district (Code 1930, sec. 3122).

10. SCHOOLS AND SCHOOL DISTRICTS.

Statute imposing personal liability for taxes assessed by state, county, municipality, or levee board does not expressly or by necessary implication impose personal liability for separate school district taxes, though levied and collected by a municipality (Code 1930, secs. 3122, 6657, 6731, and sec. 6662 as amended by Laws 1934, chap. 260).

Roberds, J., delivered the opinion of the court.

The municipality of Braxton, Mississippi, through its mayor and aldermen, sued, and obtained a personal decree against, Homer Vanzandt for $157.99 for unpaid, separate school district taxes on the property of Vanzandt located within the school district. Vanzandt appeals.

A number of questions are raised on the appeal, but it is necessary that we dispose of only two of them. They are: (1) Whether the municipality has the right to maintain this suit in its own name; and (2) whether the owner is personally liable for unpaid, separate school district taxes against his lands located within the district.

On the first question, the authority to levy the school tax is in the mayor and aldermen, or other governing body of the municipality, on all the property within the district whether located within or without the municipal corporate limits. The taxes are collected for all school purposes, including bond issues, by the tax collector of the municipality, except that the municipality, by resolution upon its minutes, may authorize and empower the county tax collector to collect the tax on the property within the school district lying without the municipal corporate limits. Section 6662, Code of 1930, amended by Chap. 260, Laws 1934. The municipal tax collector collects the taxes in the same manner and under the same penalties as state and county taxes are collected. Section 2584, Code of 1930. The tax money is paid to the municipality for the benefit of the school district. Sections 6657, 6731, Code of 1930, and Section 6662, as amended in 1934. The trustees of the school district are given ample powers to regulate and conduct the schools, hire the teachers and fix their salaries, to make reports of expenses and recommend budgets to the municipality, but are given no powers to levy or collect taxes or issue warrants paying out the funds of the district. Section 6665, Code of 1930.

Appellant cites and relies on Stevens v. City of Brookhaven, 5 Cir., 64 F.2d 659, which was an action to hold the municipality liable for the debt of the school district for money borrowed by the trustees of the district and used exclusively by the district, none being used for municipal purposes. The court held the municipality not liable. While it is true in that case the court referred to the school district as a "separate legal entity" from the municipality, in determining the liability for that debt, it does not follow therefrom that the municipality has no power to collect the taxes or institute proceedings or procure personal judgments therefor. On the contrary, it is said in that case: "Under the statutes of Mississippi a separate school district which includes a municipality is created by the municipal authorities, its taxes are levied and collected by them and its funds including those arising from county school moneys are put in the hands of the city treasurer or depository."

The municipality had the right to bring this suit on behalf of the district.

On the second question, no personal liability existed at common law on the part of the owner for unpaid taxes against his property. Whatever liability now exists in this state must be found in Section 3122, Code of 1930, reading: "Every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem, privilege, excise, income, or inheritance, is a debt due by the person or corporation owning the property or carrying on the business or profession upon which the tax is levied or imposed, whether properly assessed or not, or by the person liable for the income, inheritance or excise tax, and may be recovered by action; and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct."

This statute creates a new liability and a new remedy. Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190. Except for that statute only the property on which the tax is imposed is liable for the tax. Other statutes provide for collecting the tax by sale of the specific property against which the levy is made. Section 3122 creates a means by which property of the owner, other than the property against which the levy is made, may be seized and sold. Under these circumstances the statute should be construed favorably to the taxpayer. The statute does not expressly include the tax here involved. It is urged, however, that it does include taxes levied or imposed by municipalities. We think the word "municipality" in the statute means that the tax is for municipal purposes — not merely the right and power, as in the case at bar, of the municipality to levy and collect the tax for the benefit of the school district. The tax here is not a municipal but a school tax. It is used exclusively for school purposes. It will be noted the statute, by its wording, includes taxes assessed "by a county," and the supervisors of the county, under some of the drainage district schemes in this state, levy such tax, Sections 4397, 4398, Code of 1930, but that did not bring drainage district taxes within the terms of the statute. Nickey et al. v. State ex rel., 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324. Again, Section 3122 was in existence (Section 3747, Ann. Code of 1892) long before separate school districts were authorized by Chapter 283, Laws of 1924. The statute has been amended from time to time to include new taxes as they have come into existence. For instance, after this court, in Enochs v. State ex rel., 128 Miss. 361, 91 So. 20, held that the statute did not include inheritance tax, the statute was amended so as to expressly include such tax. However, it has not been amended so as to include separate school district taxes. It does not impose personal liability for such taxes either by express words or necessary implication.

Reversed, and judgment here for appellant.

VANZANDT v. TOWN OF BRAXTON.

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