The primary question here presented, and which, if decided adversely to the appellant, will end this controversy, is this: Did any part of the taxes here collected become legally a part of the appellee's road fund? If they did not, then the board of supervisors was without the right to apply any part thereof to the maintenance of the county's roads, and therefore the city of Natchez is without the right to claim any part thereof.
The bill of complaint does not allege that the taxes were collected or appropriated to the maintenance of special roads, or roads of a special road district, but only that the taxes were collected for, and appropriated to, the maintenance of "the public roads of Adams county." Neither does the bill allege by what system or under what statute the county roads were worked, so that it does not appear therefrom under what statute the taxes were collected and expended, at least one of *Page 439 which should appear to make the levy and expenditure of the taxes lawful.
But we will put aside that defect in the bill, and proceed on the theory that the county proceeded under one of the statutes authorizing it to appropriate ad valorem taxes to the maintenance of its public roads.
Except in specified instances that do not here appear (sections 8373, 8374, 8375, 8380, 8389, 8396, 8448 of Hemingway's 1927 Code; chapter 80, Laws of 1928; section 6330, Code 1930, and other similar statutes), the public roads of a county can be maintained out of ad valorem taxes only when such taxes are specially levied for that purpose. Among the statutes so providing are sections 8387, 8409, 8420, 8423, 8434, 8439, 8520, 8552, Hemingway's 1927 Code; sections 6389 and 6390, Code 1930.
All of the statutes fixing the levy of ad valorem taxes for general county purposes exclude therefrom road, bridge, and school taxes. Chapter 117, Laws of 1926; chapter 16, Laws Ex. Session 1928, and chapter 268, Laws 1930. Taxes levied under these statutes cannot be used for road, bridge, or school purposes, unless specially permitted by some other statute of the character hereinbefore pointed out. From this it necessarily follows that the board of supervisors of Adams county were without power to include in the general levy of taxes authorized by chapter 117, Laws of 1926, chapter 16, Laws of Ex. Session of 1928, and chapter 268, Laws of 1930, taxes for the maintenance of the public roads of the county. Consequently, its appropriation of the taxes here in question to that purpose was a clear violation of the law, and therefore conferred on the city of Natchez no right to claim any portion thereof.
It will not do to say that the method here pursued accomplished the purpose contemplated by the statutes, and therefore no harm was done the taxpayer. What we are dealing with is a question of power, not only as to the purpose to be accomplished, but as to the mode *Page 440 of accomplishing this purpose. The statutes create and limit the power of boards of supervisors in this connection, and the power thereby conferred can be legally exercised only in accordance with the statutes. The taxes collected within a municipality which a county may pay over to the municipality are such only as are "collected . . . for road purposes," and none such were here legally collected.
The case of the Town of Purvis v. Lamar County, 161 Miss. 454,137 So. 323, 325, has no application here, for there the taxes in question were levied and collected for road purposes.
There is another question bearing hereon, and which should not be overlooked.
In 1922 by chapter 225 of the Laws of that year, the county expenses were required to be budgeted. In Du Bose et al., Board of Supervisors, v. Cranford, 131 Miss. 770, 95 So. 676, the general purpose of that act was recognized, namely, that it required estimates to be made of the gross amount of contemplated expenditures under each separate main heading, and mentioned some of those of the principal separate headings which are customarily used in the administration of the county fiscal systems, one of which mentioned was the general county fund and another the road fund, naming several of these road funds, as illustrative of the general legislative purpose. It seems to have been conceded by all parties and assumed by the court in that case that the expenditures made by the board must be confined to the principal or general headings under which the several gross estimates are made, and the like concession and assumption is shown in Marshall County v. Barkley, 165 Miss. 198, 147 So. 341. In other words, that money budgeted and collected under one principal heading could not be spent for purposes coming under another principal heading or classification as to character; and to meet the practical difficulties in this requirement, we held in the latter *Page 441 case that it was competent for the board to budget "miscellaneous expenses" in a relatively small amount, so as to take care of oversights or unforeseen circumstances.
The Budget Law was brought forward as chapter 91, Code 1930. It has been, and remained ever since its enactment, a dominant piece of legislation in the control of county and municipal affairs. Its whole purpose would be defeated, so far as practical results are concerned, if after the preparation and publication of the budget the board could disregard the several principal headings or funds and transfer from one to the other without any limitation, and we hold that this cannot be done. What is to be done when a particular fund has become exhausted, or when at the end of a year a surplus is found in such a fund, is not here before us.
It is alleged in the bill here that the board of supervisors annually provided in the county budget a specified sum to be allocated to the maintenance of the public roads, but omitted to levy any taxes for that purpose and each year diverted from the general county fund the sums spent for road purposes, and this largely in excess of the budget of each year as regards road expenditures. In other words, the taxes were levied, collected, and credited for and to the general county fund, and subsequently from time to time were transferred to the road fund, and thereupon the expenditures for roads were made out of the transferred fund. If this can be legally done, the budget law had as well be repealed.
This manipulation was in violation of the budget law. The money did not belong to the road fund, and its illegal transfer thereto can no more bind the county and make it liable therefor, than can the county be made liable for any other violation of the law not done by it. It is a truism in the law that a county cannot be bound by illegal acts of its board of supervisors — acts beyond the limitations of the legal powers of the board — and this remains true, although the county may have received *Page 442 the monetary benefit of the illegal acts, as has often been held by this court.
The decree of the court below should be affirmed.
I express no opinion on the other questions presented by the record. Judge GRIFFITH requested me to say that he concurs in this opinion.