FORREST COUNTY MAY LEVY
SPECIAL TAX FOR ITS SCHOOLS
Attorney General Fletcher Renders
An Opinion to County Attor
ney Hartfield.
NEW COUNTY ENJOYS
RIGHTS OE OLD ONE
Creation of New County of Forrest Did
Not Change the Meaning of the Law.
Decision Means Much to the Schools
of the County.
One of the most important questions
that was before the board of super
visors at its last meeting in an inform
al way, was whether the new county of
Forrest had the right to levy an ad
ditional tax to secure an extension of
the school term. This question has
been decided la the affirmative by the
attorney general and as the matter
is of such vital importance to the en
tire people of Forrest county, the
Daily News publishes the decision in
full. preceding it by the inquiries pro
pounded by Hon. George Hartfield:
Department of Justice
State of Mississippi.
September 17th, 1908.
"The Board of Supervisors of For-J
1 - ■ ~- - =
Hon. George Hartfield,
Attorney Forrest County,
Hattisburg, Mis.
Dear Sir: —
I have your inquiry as follows:
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I- ■ ftLk-taafehfc. .<,,5
rest County direct me to request your
opinion regarding their power to levy
additional school taxes to extend the
school term beyond the time covered
by the state distribution.
See Code of 1892 Section 4047.
See Code of 1906 Section 4572, also
Notice particularly the addition to
the first section above cited
shown in the second section above
cited.
Under the Code of 1892 the board |
of supervisors of Perry county levied
2Vi mills additional school tax, and
afterwards continued to do so under
out an election, or Is an election a j
prerequisite to the levying of an ad-1
;
the code of 1905 without an election,
as they might do under the provision
contained in Section 4572.
On the first Monday in January, 1908
the County of Forrest was organized
out of a part of the County of Perry.
Now can the rights of Perry County
be imputed to Forrest County so as
to authorize Forest county to continue
the 2>4 mill additional school tax with
,
ditional school tax?
Also—
See Chapter 72 Laws of 1908.
Is this section to be construed
independently of Section 4572, Code of
190S, or are the two to be taken to
gether, so as to authorize the levy
nien ^ one< ^ the Acts of 1908 for
purposes subject to the elec
^ on condition mentioned in the Code
Section cited?
Again—
Construing Chapter 72, Laws of 1908,
can only two mills be levied for ad
ditional school tax, or can a school
tax be included in the 16 mills county
|levy, and then two mills added thereto,
thus making three, four or five mills,
[
To restate the entire proposition in I
another form—•
or more, for additional school tax?
^' ount ^ Superintendent of Pub- [
[lie Education of Forrest County de- j
SireS an additionaI s(dl00 l levy of be
tween S'i and 4 mills for chool pur
Waiving the question of the j
expediency of so large an additional
me that the point is one of first im
poses.
school levy, can it be done under the
law? And if so, can it be done by
Forrest County without an election?"
The first question you propound is
by no means free from difficulty, and
the most diligent research convinces
pression at least in Mississippi if not
in the United States.
a
,
veie alieady making the levy
at .he time the statute became oper-1
a ' P ' el ' 5 Count} s territory, For
i's otmn was created, no territory i
■being included in the new county ex-!
c. pt sin i as had foimally belonged j
\ n ' '' y ' Tll ° sl,< ' c ' a ' -^ ct - Chapter
16a of the laws of 1906, authorizing v
he , Creati °" ° f F ° r rf C ° Unty ' 18 Sl -
Ilent up on ,he Uvular question be-' ,
The statute,
Section 4572 of the Code ot 1906,
reads; "provided that boards of super
visors in those counties where the tax
is now being levied shall have the pow
er to continue levying the tax with
out an election.'* The word "now" in
this statute manifestly refers to the
date when the Code of 1906 became
operative, to-wit: October 1st, 1906.
Its effect is to exempt from the neces
sity of an election all those counties
which
fore us, but by numerous provisions of
the act, it is evident that it was the
general purpose of the legislature to
secure to the citizens of the new coun
ty all the rights and privileges which
pertained to the old. But disregard
ing the provisions of this special act
and looking at the question in the
light of principles fairly well estab
lished by the authoriites I reach the
conclusion that the privilege Which
the statute secured to Perry County,
can now be extended to Forrest Coun
ty and that two and a half mills tax j
can be extended to the new county j
without an election. For, it seems to
me, the privilege thus conferred upon
certain counties stands upon the same
basis as though it had been granted
by a special act of the legislature.
1 hat is to say, the construction would
be the same as if a special act had
been conferred upon Perry County, by
name the right to dispense with an
election, assuming, of course, that such
an act would be constitutional, in this
State. Now, it is stated by a respect
able authority that: "A special statute
applicabie to the territory of a certain
county continues applicable to the
part of such territory afterward set
off for the formation of another coun
ty, in the absence of a repeal express
or implied of such statute."
11 Cyc. 353.
Thus statement of the text rests up
on the case of
Lackawanna Co. vs. Stevens, 105, Pa.
St. 465.
Turning now to this case, it will be
seen that this decision in turn rests
upon the earlier Pennsylvania case of
Parsons vs. Winslow, 1 Grant 160,
where it is said: "Territory or men
once made the objects of legislation
remain subject to the laws imposed
however the names by which they are
designated may be changed." I do
not think the authority of these Penn
s.vlvania cases is destroyed by the
fact that our Court in Chickasaw Coun
ty vs. Sumner County, 58 Miss. 619
declined to follow the Pennsylvania
Court in its holding as to the liabil
ity of the newly created county for
the debts of the parent county. That
is quite a different question from the
one before us now. In my judgment
the quoted statement from Parsons vs.
Winslow, Supra, is sound and I advise
that it be followed.
Coming now to the question of the
effect of that part of Chapter 72 of
the Laws of 1908 which reads: "Pro
vided. that counties may levy an ad
ditional tax of not exceeding two mills
on the dollar, to provide funds to
maintain the public schools," I find no
[difficulty in reaching the conclusion
that this statute was not designed as
substitute for Section 4572 of the
Code, in the sense that the Code pro
visions may be disregarded in levying
the tax, but that it was designated
merely to place a limit upon the
amount of )ax whlch the board can
levy acting in accord with the machin
ery and methods se t ou t ] n Section
4572 Surely , thc Legislature did not
n4end j n a rPve inic measure to repeal
or disregard the elaborate system pro
v , ded the Codp . Thp brlef state .
ment in this revenue act, lacking
t does a „ dlrectlon8 as to how the
tax shall be levied and collected, and
what property shall be subject to it
can not furnish a complete scheme in
itself and when resort is had to the
Code provisions for direction in one
particular, necessarily all the stipula
tions therein contained would be ap
plicable.
as
The interesting question presents it
self as to whether by reason of this
clause in the act of 1908, above refer
red to, the board of supervisors has
authority, provided the right has been
obtained by an election or by the fact'
that the tax was already being levied
when the code became operative, to
levy more than two mills for school
pitrpbaes. It is clear, of course, that In
!<ase>as much as sixteen mills have
been levied, for state and county pur
poses other than school purposes, the
school levy could not exceed two mills.
In other words the State, and County
tax can not he greater than sixteen
mills unless this amount Is not suffi
cient for school pu
case, the total levy
mills, provided the additional two
mills Is needed for the support of the
schools and Is in fact devoted to this
purpose.
s in which
$r
be eighteen
The statute ■.manifestly
means this much, and X think this is
all that it does menu. You will ob
serve that the langu
levy an additional t
two mills etc." It is
used is "may
T
not .exceeding
manifest that
without this proviso, the board could
levy In accordance with Section 4572,
what soever tax is neoeaaarrv to
ex
tend the school term provided the total
levy did not excesjj' sixteen mills.
This proviso is cle arly not yestrlctive,
rH
but is rather designed to enlarge the
power ot the board, and has In my
Judgment no effect to limit the school
tax to two mills,b ut only tol lmit the
total amount which may be levied, and
to make sure that the excess over
sixteen mills Is devoted to school pur
I therefore, advise that the
poses.
board may levy more than two mills,
if otherwise authorized to do so, pro
vided the total levy does not exceed
eighteen mills.
Another question is submitted,
which may be thus stated: In case a
county is exempt from the necesity of
an election because a certain school
tax is being levied at the time the
code went into effect, Is it empowered
to increase the levy without an elec
tion, or is it restricted to a levy no
greater than the one In efTect when the
statute became operative?
The exact language of the stautute
is "provided, that boards of supervis
er to continue levying the tax
l8 now belng Ievled ' shall have the
power t0 continue levying the tax
without an election." Shall have pow
re ( n continue levying levying the tax
what tax is mpant ? i can not es
C ape the conclusion that it means the
sa me tax, as to amount, that was being
levied when the law became effective,
u | s clear from a consideration of a
former part of the statute that when
a certain tax is authorized by the
electors voting in an election for that
purpose, the board must continue to
levy the same tax until another elec
f] 0 n is held. Clearly without an elec
tion, in such a case, there can be no
increase of the tax levy. I do not
think a county which has secured the
right to continue the levy without an
election by reason of the tax having
been levied at the time the law be
came operative has any greater power
in the premises than a county which
has had its rate fixed by an election.
In other words thee ounty does not, by
reason of the fact that it has been
levying a certain tax secure a perpet
ual exemption from the people's right
to veto an increased tax. The right
of the county to tax is limited to the
rate heretofore in effect.
I conclude that the County of For
rest can not, without an election, levy
a greater tax for school purposes than
the amount previously levied, to-wit:
two and one half mills.
Very respectfully,
R. V. FLETCHER,
Attorney Genera.1
''1
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Mrs. Jerome Elmer P. Murphy, of !
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