Adams v. Saunders, 42 So. 602

Adams v. Saunders

42 So. 602 | Miss. | 1906

Lead Opinion

Mayes, J.,

delivered the opinion of the court*

In 27 Am. & Eng. Ency. Law (2d ed.), 800, citing numerous authorities, it is stated that a collector of taxes must pay over to the proper authorities all funds which come into his hands officially. So far as his duty to account is concerned, it is wholly immaterial as to whether the tax collected by him was a constitutional tax, or whether it was illegal, or void, or improperly collected. He can in no event question the right of the state, or other political division, under whose authority he derives his own power to act, to receive the same. We literally adopt the rule announced by the authority above quoted, supported, as it is is, by such sound principles of right, as the law applicable to this case. In the case of State v. Harney, 57 Miss., 886, in speaking of a tax collector, George, O. J., says: “He is treated as the agent of the state or county in collecting *800the money, and as having received it for the benefit of his principal; and he will not be allowed to rely upon technical objections which might be made to the right of the state or county to it. The taxpayers who paid the money voluntarily are considered as having paid it to him for the use of the, treasury; and he will not be permitted,, having thus received it, to question the right of the state or county to it.” It is true that the language of the court, quoted above, was addressed to the objection made that taxes were levied 'by the board of supervisors sitting in Jackson, instead of at the courthouse at Raymond, and that therefore the tax collector, not having the power to collect the taxes, by reason of this irregularity, could not be held accountable for the tax in a suit by the state to recover same; but the court held that no such defense would be tolerated when the collector, was sued for the amount actually collected. The defense sought to be set up in this case is no less technical than that sought to be made in the Harney case. Defendant, Saunders, confesses that for the year 1890 he collected in his office the sum of $1,010.80 more than he was charged with by the county and state, and that in the year 1891 he collected the sum of $1,360.31 more than he was charged with. Tie admits that these sums were received by him in virtue of his authority as tax collector, and paid to him by the parties paying the amounts as either damage or tax, and yet insists that he has a right to withhold from the county these sums, because he had no authority under the law for the collection of same. When he admits the collection of the above amounts as tax, and it is shown that he was acting by virtue of his authority as tax collector, he is estopped by every principle of right to deny that the county is entitled to same. It would be contrary to public policy, contrary to both law and right, to hold that a tax collector, receiving money in virtue of his authority as such, could ever, under any circumstances, deny the right of the state or county to receive same, when the tax has been voluntarily paid *801by taxpayers and the amount is still in his possession. If any authority has ever upheld this proposition, we have been unable to find it. Defendant Saunders had not discharged his obligation to his principal when he had paid all taxes charged to him; but he must go further, and pay over all money collected by him as taxes and voluntarily paid, it matters not from what source or under what circumstances he received it. It may be true that the parties paying the tax have a right to the return of same, but the record fails to show that any person is endeavoring to collect it from Saunders, or made protest at the time, and he cannot be allowed to hold this money, properly belonging to the county, merely because he fears he may hereafter be liable for it. That condition will be met when the occasion arises for its determination. The record shows that the state has been fully paid all its charges for the years in question, and, that being the case, the suit is properly maintainable for the county, and the county may be trusted to make the proper distribution of the fund; and, if it does not, persons representing it will be held accountable, but it can in no way prejudice appellee.

Let the decree be reversed and remanded, with instructions to the court below to enter judgment against appellee and his bondsmen for the sum of $2,370.31, with such damages as are allowed by law, to be ascertained by an accounting.

Whitfield, C. J., takes no part in the decision of this case, being disqualified.

Concurrence Opinion

Calhoon, J.

(concurring). I fully concur with Judge Mayes. The officer was acting not only colore officii, but the payment was made to him because demanded virtute officii. Ilis official trust attached, when he received the money, to account for it, and it should have gone where the voluntary payer designed it to go. Neither the officer nor his bondsmen can justify his withholding it, nor can they find any protection in the position that his collection was unauthorized or that he might (though he did not) have refunded to the taxpayer before he made his report, which omitted it.