Newman v. Elam

| Miss. | Dec 15, 1855

HaNdy, J.,

delivered tbe opinion of tbe court.

This was an action at law in tbe Circuit Court of Adams county, to recover a sum of money paid by tbe defendant in error, to tbe plaintiff in error, as sheriff and tax collector of that county, wbicb sum of money, it is alleged, tbe plaintiff in error, as sheriff and collector, claiming to act under direction from tbe auditor of public accounts of this state, in April, 1850, collected from tbe defendant in error as a vendor of slaves, in Adams county, and for sales of slaves made by him in that county, for tbe fiscal year commencing with. March, 1849, and ending 1st March, 1850, in the same way, and upon the same footing, as if the slaves so sold were merchandise, under the revenue laws of this state. The right of recovery is claimed on the ground of the payment being made under duress of supposed authority and by compulsion.

The answer states, that the money was paid to the plaintiff in error, as tax collector, acting under the direction of the auditor of the state, without protest or notice not to pay it over to the state, and that the same had been paid over by the plaintiff in error, before the commencement of the suit and without notice to the contrary, to the State of Mississippi.

To this the plaintiff below demurred, and the demurrer was sustained, and the defendant below declining to answer further, judgment was rendered for the plaintiff; to which this writ of error is prosecuted.

Several grounds of objection to the plaintiff’s right of recovery have been taken here. But we think that the merits of the case depend upon the question, whether the record shows such warrant to the tax collector as would justify him in making the collection.

The authority shown in the answer is, that in collecting the money, he acted under direction of the auditor of the state, and we have to inquire whether that was a sufficient warrant.

The act of 1846, § 66, (Hutch. Code, 198,) makes it the duty of the tax collector to collect from transient vendors of goods, &c., the taxes that may become due from the sale of goods by such persons. *

The 16th sect, of the Revenue Act of March 9th, 1850, provides, “ that all vendors of slaves as merchandise, who shall carry the same from point to point within this state, offering the same for sale as such, shall be assessed with the sales thereof as merchandise sold by transient vendors, and such taxes shall be collected according .to the laws now in force relative thereto.”

The 65th sect, of the Revenue Act of 1846, (Hutch. Code, 198,) makes it the duty of the auditor to transmit to the assessors and collectors, “ such instructions as he may consider useful in enforcing the execution of the provisions of that act.”

By the same act, the tax collector is required to pay into the state treasury, tbe moneys collected by Mm for tbe use of the state, on or before tbe first day of May, in each year, and upon bis failure to pay over tbe amount of sucb “ assessment return,” for bis county, be is required to pay thirty per centum per annum damages, from tbe time tbe same should have been paid, and is also liable to removal from office.

It must be taken under tbe pleadings in this case, that tbe auditor issued bis instructions to the tax collector, directing Mm to assess and collect taxes upon slaves, in tbe condition of those owned and held by tbe defendant in error, in virtue of the provisions and authority of these statutes, and the question is, had he the power and authority to do so ?

The provision of the statute is very general: — that be “shall transmit such instruction as he may consider useful in enforcing the execution” of the revenue laws. The power conferred is not restricted to any particular cases or questions, and it necessarily clothes tbe auditor with a large discretion, to be exercised in bis best judgment, in regulating the performance of tbe duty of collecting and accounting for the public revenue. It authorizes him to prescribe to the tax collectors rules of proceeding in the discharge of their duties, not otherwise prescribed by law, and in cases of doubtful construction of tbe laws, to instruct them as to the rule of action to be observed by them; for this may become very essential in enforcing the execution of those laws. These instructions, when given, must necessarily be mandatory and if violated, would subject tbe officer to the penalties of official delinquency. If they be injudicious or founded in an erroneous view of tbe statute, they are nevertheless imperative and binding upon tbe tax collector, because they proceed from tbe officer clothed by law with tbe power to issue them ; and for the same reason, they would be a justification to him in rendering obedience to them. If it were necessary to consider the propriety of tbe exercise of the power conferred upon the auditor, in giving instructions as to the liability to taxes of persons holding slaves in tbe condition of those held by tbe defendant in error, tbe litigation upon the subject which the records of this court show has taken place, is sufficient to show that it was a doubtful question, which well justified the auditor in exercising the power given him by law, by instructing the tax collectors as to the rule by which they would be governed. We think that such a power was clearly embraced by the provision of the statute; and though the construction put upon the statute was erroneous, yet he had the power to do the act, and upon established doctrine, it was a justification to the tax collector. For if the authority proceeded from an officer having the power to issue it, and was regular and valid upon its face, the tax collector, as a ministerial officer, had no right to examine whether it was issued under an erroneous construction of the statute, but it-was his duty to conform to it. 3 Phill. Evid. Oowen & Hill’s notes, 1005, 1007, and authorities there cited. And he is not liable to an action to recover the money so collected and paid over to the state.

The judgment is reversed, the demurrer overruled, and the cause remanded. ' t