Illinois Central Railroad v. Adams

78 Miss. 895 | Miss. | 1901

Hon. Newnan Cayce, Special J.,

delivered the opinion of the court.

On August 27, 1895, the Illinois Central Railroad Company applied for and obtained from the Hon. H. C. Conn, chancellor, sitting for Hinds county, Mississippi, an injunction restraining appellees and the railroad commissioners of the State of Mississippi from making any assessment for taxation .of the Louisville, New Orleans & Texas Railroad property for the years 1886 to 1891 inclusive, the said property being then owned by the Illinois Central Company, and, pursuant to the flat of the chancellor, executed bond, in the sum of $25,000, with R. W. Millsaps and John Hart, sureties. On September 28, 1895, the injunction was dissolved by the chancery court and an appeal taken to the supreme court of the state, and on December 2, 1895, in case No. 8312, the decree of the chancery court was affirmed by the supreme court. On February 6, 1896, the railroad commissioners assessed the property of the railroad. On February 7, 1899, the bill for injunction was dismissed by the chancery court. No opposition to such dismissal was made by the railroad companies after said decree of affirmance by the supreme court, and the dismissal occurred on the first request made by the revenue agent thereafter. The railroad commissioners held semi-monthly meetings on the first and third Mondays of December, 1895, and January, 1896. The cost of the appeal to the supreme court was paid on January 22, 1896. This suit on the bond was instituted oil February 8, 1899, in the circuit court of Hinds county, and the cause was tried upon an agreed statement of facts. Judgment was given for the state revenue agent and against the railroads 'for the sum of $11,931.16, the same being for the interest at six per centum, which would have accrued on the amount of taxes claimed, viz., $397,705.34, for the six months intervening between the first Monday of October, 1895, and the first Monday of March, 1896, had not the injunction delayed the obtaining judgment for that time, the other claims of plaintiff for expenses, etc., being disallowed by the circuit court. Thereupon the appellants appealed to this court from said judgment.

The condition of the bond sued on is as follows, viz.: Now, if said railroad companies, in case the injunction be dissolved, shall, within thirty days thereafter, well and truly pay and satisfy all costs and damages as shall result from the wrongfully suing out of this injunction,” etc.

Can interest upon delinquent taxes be recovered upon an injunction bond by designating it as <£ damages?” If it can be thus recovered, it surely would be recoverable in a direct suit therefor. The basis for recovery must be the same in both instances. Calling interest ££ damages” could not operate to make that liable which was not liable under the name of interest. Interest is entirely statutory. It was not allowable by the common law, and exists only by positive legislation. Easton v. Foster, Walker Rep., 214; Homer v. Kirkland, 25 Miss., 96.

Our statute provisions authorizing the recovery of interest are found in §§ 2348 and 2350, code 1892, and they provide as follows: “The legal rate of interest on all notes, accounts and contracts shall be,” etc., and “that all judgments and decrees founded on any contract shall bear interest, ’ ’ etc., and other judgments and decrees at six per centum. Unless the contractual relation exists or judgment has been obtained, our statutes do not authorize the recovery of interest, and it is clear that that relation does not exist as between the government and the citizen regarding the levy of taxes, in the sense in which the interest statute refers to. By statute, taxes are a lien, upon and bind the property, assessed in specie, from the first day of February of the current year; are due on October 1 following, and, if not paid by the fifteenth of December, may be collected of the personalty by distress, and, if not paid on land by the first Monday of March thereafter, together with the additional costs, the land is sold therefor. Interest in connection with delinquent taxes is nowhere provided for, except where lands are purchased by an individual at such sale for taxes, and then only after the sale. If, at such sale of delinquent lands, they are struck off to the state, they can be redeemed by paying the amount of taxes and cost and twenty-five per centum damages, but there is no provision for interest thereon. See §§3746, 3794, 3801, 3823, 3830, code 1892.

Interest is not allowable upon delinquent taxes by way of damages.

Appellees insist, with much earnestness, that this judgment appealed from herein, is not rendered for interest, but damages for loss of interest, arising under an express contract by the terms of the bond. The terms of a bond are always construed strictissimi juris, and the word damages therein must be taken to mean such damages as were allowed by law. As the law did not authorize the recovery of interest upon taxes delinquent, before judgment, clearly no legal injury could result by withholding that which the law did not authorize to be recovered. We have carefully examined the authorities cited by appellees, and find in each case the suit was based upon matters upon which interest was recoverable by statutory enactment. Section 3747, code of 1892, does not change the law by declaring the tax a debt. It is a debt by virtue of legislative declaration and not a debt arising by contract. The effect of § 3747, supra, is to make the owner liable, in personam, for the whole of his taxes, collectible as provided by § 3826, code 1892, but it does not change the law regulating the recovery of interest. That interest is not recoverable on taxes delinquent, is held also in following cases: Louisville & Nashville R. R. Co. v. Hopkins Co., 87 Ky., 202; Shaw v. Peckett et al., 25 Vermont, 482; Haskell v. Bartlett, 34 Cal., 34; Perry v. Railroad Co., 55 Ala., 401; Edmondson v. Galveston, 53 Texas, 157.

The other items of damage named in the declaration, having been disallowed by the court and no cross appeal having been taken, cannot be considered by this court.

The judgment of the court below is reversed and the case remanded.