
    City of McComb City v. Pike County.
    Municipalities. Laws 1900, ch.. 119, p. 155, secs. 6 and 7. Public roads.
    
    Municipalities which work the streets “at the expense of the municipal treasury,” within the meaning of secs. 6 and 7, ch. 119, p. 155, Laws 1900, exempting such municipalities from the statute — -a scheme for working the public roads — are those which work their streets with money collected by taxation, and not those which work their streets with funds made up of commutation taxes collected under an ordinance and fines imposed on street delinquents and for obstructing streets.
    Ebom the circuit court of Pike county.
    HoN. Moyse H. WilkiNSON, Judge.
    
      Tbe city of McComb City, the appellant, was the plaintiff, and Pike county, the appellee, defendant in the court below. Prom a judgment in defendant’s favor the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.
    
      Mixon & Butter, for appellant.
    
      J. B. Siernberger, for appellee.
   Cox, J.,

delivered the opinion of the court.

The scheme provided by ch. 119, p. 153, Acts 1900, for the working of public roads by contract involves the requiring of eight days’ special work service on the public roads, under the contractor, by all male persons over the age of eighteen and under the age of fifty years, with the exception of certain classes specified in the statute, or, in lieu thereof, the payment by each person liable for such labor of a commutation tax of $3, and an ad valorem tax on all taxable property ini the county, to he collected and paid over to the county treasurer, to be kept as a separate road fund. The statute provides that all the commutation tax shall be. expended in the district or village, town or city, from which the same was collected, and such commutation tax for road purposes paid by the residents of a municipality shall be turned over to the treasurer of such municipality and be expended by the proper authorities thereof for that purpose, but the ad valorem tax shall be treated as a general road fund for use anywhere in the county, except the taxes so collected on property within the municipality, the streets of which are worked at the expense of the municipal treasury, which shall be equally divided 'between the county road fund and the municipal street fund. Vide sec. 6, ch. 119, p. 154, Acts 1900. Pike county having elected to work its roads under the provisions of the act of 1900, and an ád valo rem tax on all the property of the county having been levied and collected therefor, McComb City demanded that one-half of the tax collected within its municipal limits be returned to it, claiming that its streets were worked at the expense of the municipal treasury during the time for which the said ad valorem tax was collected. Its demand having been refused, suit was brought in the circuit court of Pike county for its enforcement. Judgment having been there rendered in favor of the county, the plaintiff prosecuted an appeal to this court.

ITpon the trial it was agreed that during the years in question McComb City worked its streets under the charge of a street commissioner, who drew his compensation, by warrant, by order of the municipal board, out of the street fund, which was made up of a commutation tax collected under an ordinance of the city, of fines imposed on street delinquents and fines.imposed for the obstruction of streets. A jury having been waived and the cause submitted to the decision of the court, judgment was rendered for defendant, evidently because, in the opinion of the trial judge, the streets of McComb City were not worked during the time in question at the expense of the municipal treasury. This judgment of the court is, of course, the sole error assigned on appeal.

It becomes necessary, in reviewing- this judgment, to ascertain the legislative intent in providing for an equal division with the municipality of the ad valorem tax collected within its limits, where the streets of the municipality are worked at the expense of the municipal treasury, and to do this it is necessary to determine what is meant by the phrase, “at the expense of the municipal treasury.” If sec. 6 stood alone, it would be difficult to determine with any certainty what the legislature meant by this expression, for the section provides for a commutation tax on persons liable therefor, within the municipality, to be turned over to the treasurer of the municipality, as well as an ad valorem tax on property; and, inasmuch as the commutation tax must be drawn out of the treasury, it would seem that .the working of the streets with the proceeds of thé commutation tax would be a working of tbe streets at tbe expense of tbe municipal treasury. Indeed, broadly speaking, if tbe work was paid by warrants -on tbe treasury, it would seem to be a working at tbe expense of tbe treasury, regardless of tbe source from wbicb tbe fund arose. And yet, if tbis construction be adopted, tbe only class left to be opposed to or distinguished from tbe’ municipalities working tbeir streets at tbe expense of tbe municipal treasury would be those wbicb work tbem by tbe uncommuted labor of tbeir citizens liable to sucb service. But as tbe law permits tbis labor to be commuted in money, and as it is in fact nearly always so commuted, tbe distinction attempted to be made would prove vain and futile in practice. But even if there were a large class of municipalities wbicb worked tbeir streets by tbe uncommuted labor of tbeir citizens liable to sucb service, we cannot see bow any valid distinction can be made between sucb a class and municipalities wbicb work tbeir streets with commutation money. Tbis commutation money is in no proper sense'a tax at all, but is, as its name implies, merely tbe commuted labor of tbe citizens; and tbe difference between tbe two does not seem broad enough to warrant tbe distinction made by tbe legislature. But if sec. 7 (p. 155) be considered in ’ connection with sec. 6, tbe meaning of tbe phrase under consideration becomes clearer. Tbe latter part of sec. I declares: “Tbe provisions -of tbis act relating to commutation tax shall not apply to municipalities wbicb work tbe streets at tbe expense of tbe municipal treasury.” It is clear from tbis that under tbis act there is no commutation tax to be collected by tbe county in case of a municipality that works its streets at tbe expense of tbe municipal treasury. Tbe two things are by tbis section made mutually inconsistent, and herein is to be found tbe basis or ground of classification. If a municipality works its streets at tbe expense of its treasury, there can be no commutation tax by tbe county under tbis act. If tbe commutation tax is collected, and it therewith works its streets, it does not work tbem at tbe expense of tbe treasury. If, then, working the streets with the commutation tax is not working them at the expense of the treasury, theré is nothing else which this can mean, except the working of the streets out of the general funds in the treasury or out of a special fund provided by an ad valorem tax on property.

We think the legislature meant to provide by sec. 6 for a division of the county ad valorem tax with a municipality which worked its streets with money collected by taxation, and with no other class. We therefore concur in the judgment of the learned trial judge that McComb City was not working its streets at the expense of the municipal treasury, within the meaning of the act, and was therefore not entitled to demand of the county one-half of the tax collected on property within its limits.

Affirmed.  