75 Miss. 154 | Miss. | 1897
delivered the opinion of the court.
The declaration avers that the appellant ‘ ‘ did, during the months of June, July, and August, 1894, make an investigation of the books, accounts, and vouchers of George P. Melchior, then the sheriff and tax collector of said Bolivar county, and as the result of said investigation, discovered that the said Geo. P. Melchior, tax collector, was indebted to the county of Bolivar, in the sum of $7,409.57, for taxes due said county and collected by said Melchior, as tax collector of said county; that, at the time of the discovery of said indebtedness by .appellant, the time fixed by law for the payment of said money into the treasury of said county had long since passed, and said Melchior had failed to make payment of said taxes, . . . and was in default for the same;” that appellant completed his investigation August 4, 1894, and, the indebtedness appearing by correct open account on the books of the said Melchior, as tax collector, he presented a statement thereof to him on August 4, 1894, and notified him to pay the same into the treasury of the county, and that, if that was not done within thirty days, he would claim the right to collect the same, and would proceed legally to enforce such payment, unless payment should be made within the thirty days to the treasurer of the county, or, after that, to appellant; that Melchior did not pay within the thirty days; that on the expiration of the thirty days’ notice so given, appellant “proceeded to collect the indebtedness, . . . and placed the same in the hands of his attorneys, with instructions
The decision of the case involves the construction of §4199, code of 1892, and section 2 of the act of February 7, 1894 (Laws, p. 29). Compensation for two things, an “investigation made ” or a “ suit instituted,” is provided for by §4199, when either results in the collection of the money. The revenue agent is to have no salary, but his compensation is contingent wholly upon the moneys being collected and paid over to the proper authorities. Neither the state nor any governmental subdivision of it is to be liable to him upon any quantum meruit for “fees or expenses incurred in any investigation made or suit instituted,” no matter how large the fees or expenses by him incurred, where no collection is made; and when it is made his compensation is fixed by the statute, to be carved out of the fund so collected — “retained” by him, when paid to him, and when not actually collected by him personally and paid over by him personally, but collected and paid over as a result either of his investigation without suit, or of a suit, then to be paid to him by the proper authorities out of that fund so collected. He is to be paid, when successful, for both his “ex
It is argued, however, that he must himself, personally, or through one of his deputies or agents, collect and pay over the money. Learned counsel for appellee concedes, however, that in case of suit the appellant would, perhaps, be entitled to his commissions, if judgment had been rendered. But that concedes the principle, clearly. For if the appellant is to be paid —and out of money collected and paid over by himself or his agent, personally' — that must be, strictly and only, for the reason that literally the statute says “twenty per centum on all amounts collected and paid over by him.” That construction must stand on the literal letter of the law, without regard to its clear scope and purpose. If the revenue agent may receive his pay, though he did not collect and pay over the money, when a suit has been brought and judgment rendered, why not after verdict and before judgment? Why not when the evidence is closed, showing clear liability ? If he may be paid in any case, when the money is not collected and paid over by him. the argument is ended which invokes the mere letter of the statute. For that argument goes wholly upon the actual manual collection and payment by the revenue agent of the money, not upon its payment into the county treasury by the defaulter, as a result of the judgment. Money paid into the county treasury by the defaulter is not paid there by the revenue agent personally, and money paid into the treasury in pursuance of a judgment is no
The construction contended for would practically nullify the whole legislative scheme declared by the law. Every defaulter knows or stands charged with the knowledge of the fact. Whenever, therefore, he knew, as necessarily he would always know, that the revenue agent was examining his books, he would have nothing to do to cut him off from any compensation, save to pay over to the proper authorities, when due the revenue agent, the amount due. The defaulter would incur no risk, for if he payed too much he could recover the surplus. But the revenue agent, no matter how long or onerous the investigation, or how expensive the suit up to judgment, on counsel’s contention, would be thus easily circumvented, and that, too, when the state, or the governmental subdivision thereof, got the revenue solely by reason of the services thus rendered by the revenue agent.
But it is insisted that in a case where the ‘ ‘ delinquency appears by a correct open account on the books ’ ’ of the tax collector, as here, the revenue agent is not entitled to any compensation unless he sues. It is broadly contended that the effect of this provision is to cut off the revenue agent from compensation in such case, when the delinquent pays after notice, within the thirty days, to the county treasurer, or after the thirty days, before judgment rendered in a suit instituted, and that that is the purpose of this provision. This construction is wholly untenable. It is too narrow, and loses sight of the whole remedial scope of the legislation creating this office. The manifest purpose of this provision is to prevent honest officials, who, for many reasons — such as absence, sickness, etc. — may not be ready to pay over on the very day or week of a delinquency occurring, from being, with their sureties, harassed with an
Manifestly, the construction contended for would encourage needless suits, as clearly the revenue agent, on that construction, could only save himself from being put completely at the mercy of every defaulter in the state, by suing all officials whose books he is required to investigate, before investigating at all. The statute (§ 2) makes it his duty to ‘ ‘ investigate the books, accounts, and vouchers of all fiscal officers of the state, and of every county, municipality, and levee board,” and to sue for and collect from every such defaulting "fiscal officer,” any sum due. Now, if — whether the delinquency appears by a correct open account on the books of such officer or not — he can be deprived of compensation for services rendered in “investigations made,” by the easy process of payment by such defaulting fiscal officer, to proper authorities other than himself, his compensation is made to depend not upon services rendered, and as a result of which the money is collected, but upon the mode of payment and the conduct of the defaulter, and he will be helplessly in the power of fiscal officers who are defaulters, and whose defalcations have been brought to light solely through his services. Statutes must receive that construction which takes into view the evil they seek to remedy,
We regard this case as falling strictly within the principle of Miller v. Delta & Pine Land Co., 74 Miss.,110. As in that case the tax collector had entered upon the doing of the acts which entitled him to damages, so here the revenue agent had entered upon and had done all that he could ordinarily do. He had investigated for three months; the defalcations were for taxes long past due; he had given the notice and waited the thirty days; after the expiration of the thirty days he had prepared his papers, employed his attorneys, put the case into their hands and instructed them to sue to the first term, and they were acthally preparing the suit. We said, in Miller’s case: “There is no point in the proceeding, once begun, at which it may be said that the right to the compensation has attached rather than at another. Whether the collection is made by virtue of a proceeding, initiate or complete, it is by the proceeding it is made,
It is a grave misconception to suppose that strict construction of this legislation' — sticking in the bark and emasculating its plain spirit and scope — is a construction in the interest of the state. The very reverse is true. The interest of the state and of her revenue agent in this matter is identical. He gets nothing if nothing is collected. He gets his twenty per cent, only when the public revenues get their eighty per cent. The discharge of his duties — unpleasant ones, doubtless, in the extreme —brings terror to no honest fiscal officer, and the dishonest are not the objects of this legislation’s tender regard. He is a public officer, elected by the people, serving the people, aiding in keeping down their taxes, teaching fiscal honesty in the school of legal compulsion to those who will learn in no other, and who prefer paying the high tuition' exacted in that school to being honest for honesty’s sake.
The judgment is reversed, the demurrer overruled, and the cause remanded.