Robertson v. Monroe County

79 So. 184 | Miss. | 1918

Lead Opinion

Stevens, J.,

delivered the opinion of the court.

The state revenue agent filed a' bill in the chancery court of Monroe county, alleging that in the year of 1904 the legislature of the state passed an act entitled “An act to authorize the board of supervisors of Monroe county to borrow the funds arising from the sixteenth section lands, and other purposes.” Laws 1904, chapter 247. This act reads as follows:

“Section 1. Be it enacted by the legislature of the state of Mississippi, that the board of supervisors of the county of Monroe are authorized to borrow the funds in their hands or to come into their hands arising from the rents, issues and profits of the sixteenth sections of lands known as school lands lying in Monroe county.

“Sec. 2. That upon the borrowing of said funds by said county of Monroe, the same shall be done by resolution entered on their minutes, and they shall pay six per cent, interest per annum on same, and the county treasurer shall carry on his books as a charge against the county, the amounts of said funds, and to what fund the same or parts of the same has been used.”

That in pursuance of this authority the board of supervisors of Monroe county, in the year 1905, borrowed from Monroe county four thousand seven hundred and six dollars and fifty-four cents, and entered an order upon their minutes in accordance with' the statute, and that they paid no interest whatever on said funds since July,. 1911, and that the county is due, and should be required to pay, six per cent, per annum on said funds from June 8, 1911, and that on the 7th day of October, 1912, the board entered an order on its minutes, borrowing from Monroe county the additional sum of two thousand one hundred and fifty-five dollars and ninety-three cents belonging to said sixteenth section funds, and has paid no interest on this loan since November 1, 1912; that on January 10, 1913, the board of supervisors entered another' order on its minutes, under said act, borrowing from the county the sum of two thousand one hundred and thirty-seven dollars and seven cents arising from said sixteenth section lands, and transferred said amount from the sixteenth section fund to the common county fund, and, notwithstanding its duty of pay six per cent, per annum thereon, has paid no interest whatever since February 1, 1913, and the said interest is due and should be paid. Exhibits were made to the bill showing the amount due thereon. The prayer of the bill was that the county be made a defendant, and a decree requiring the county to pay over the said several amounts of interest to the revenue agent to be properly applied according to law, and that the court require the board of supervisors to appoint township trustees under the statute, as provided by law, who shall direct the proper use of said funds, it being alleged in the bill that the board of supervisors had failed and refused to appoint trustees of several townships having sixteenth sections. The county demurred to the lull of the revenue agent on several grounds: First, that there is no equity on the face of the hill; second, that the defendant does not owe any amount to the state revenue agent or to the state of Mississippi hy reason of the manner in which the funds belonging to the various townships were handled, and that the bill does not state a cause of action either in the state revenue agent or the state of Mississippi, the usee; third, that the revenue agent had no power to bring this suit; forth, that the bill is vague, uncertain, and indefinite; fifth, that if the state revenue agent has any right to bring this suit, that he has a plain, complete, and speedy remedy at law. The demurrer was sustained by the court below, and the complainant declined to plead further, final decree was entered dismissing the bill, from which the revenue agent appeals here.

The powers of the stale revenue agent to bring suit are contained in sections 4738 and 4739 of the Code of 1906 (Hemingway’s Code, sections 7056 and 7057), which are set out in full, as follows:

“4738. Powers. The state revenue agent may appoint a sufficient number of deputies. He shall have power and it shall be his duty to proceed by suit in the proper court against all officers, county contracters, persons, corporations, companies, and associations of persons for all past due and unpaid taxes ' of any kind whatever, for all penalties or forfeitures for all past due obligations and indebtedness of any character whatever owing to the state or any county, municipality or levee board, and for damages growing out of the violation of any contract with the state or any county, municipality, or levee board, and shall have a right of action and may sue at law or in equity in all such cases where the state or any county, municipality or levee board has the right of action or may sue. And in all cases of valuation or ownership of property which has escaped taxation, may have subpoenaed witnesses to testify before the board of supervisors, board of mayor and aldermen or levee board. ’ ’

“4739. Duties. It is the duty of the state revenue agent 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, collect and pay over all money improperly withheld from either, and he has the power to sue and right of action against all such officers and their sureties- to collect any such moneys; but if the delinquency appear by a correct open account on the books of the proper accounting officer, the right of the revenue agent to sue shall arise only after he has given thirty days’ notice to the delinquent officer to pay over the amounts and he fails to do so. And the right of the revenue agent to sue shall terminate after the lapse of four years from the expiration of the term of any officer. And if he shall examine the books, accounts and vouchers of any fiscal officer of the state, county, municipality or levee board and find them correct, he shall give a certificate to that effect, one to such officer, and file one with the auditor of the state, or board of supervisors of the proper county or with the mayor and aldermen of the proper municipality or with the propér levee board.”

It will be seen from these sections that the revenue agent has power, and it is his duty, to proceed by suit against all officers, county contractors, persons, corporations, companies, and associations of persons for all past-due and unpaid taxes of any kind whatever, all penalties and forfeitures, and for all past-due obligations and indebtedness of any character whatever owing to the state or any county, municipality, or levee board thereof, and shall have a right of action and may sue at law or in equity in all cases where the state, or any county, municipality or levee board, has a right of action and may sue.

Has the state power to bring suit in this ease? In the ease of Jones v. Madison County, 72 Miss. 777, 18 So. 87, this court held- as under the law the state was the owner of the sixteenth section lands in trust for the inhabitants of the several townships, the state is therefore a1 trustee, and the management of the sixteenth section lands for the purpose of carrying out the grant of the state of Georgia is a trust over which the state, as trustee, has control, and the subject of trust is a familar ground of equity jurisdiction. Section 4805, Code of 1906 (section 3169, Hemingway’s Code), reads as follows:

“The state entitled to all actions, etc.; Unlawful detainer for its lands. The state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case; it may maintain the action of unlawful entry and detainer in all cases, at its option, for the recovery of land.”

Therefore, if an individual occupying the relation to this fund that the state does would have a right to sue in reference to the trust, the state would have a right to sue by virtue of the above statute. Manifestly, an individual, being a trustee clothed with a trust as the state is in this instance, would' clearly have a right to go into the chancery court and sue the county and have an accounting and an application of these funds to their proper purposes. Section 4697, Code of 1906 (section 7507, Hemingway’s Code), makes it the duty of the board of supervisors of every county where the funds belonging to any township have been paid into the county treasury and mingled with other funds, to cause the matter to be investigated, accounts thereof stated, and the funds properly credited to the township to which they belong. Section 4703, Code of 1906 (Hemingway’s Code, section 7513), provides for the loaning of the sixteenth section funds generally, and, but for the fact that the county has borrowed these funds it would be the duty of the board of supervisors to loan the funds out as provided in this section, and to collect or have collected the interest arising from such loans paid into the county treasury to the credit of the proper township'. Section 4704, Code of 1906 (Hemingway’s Code, section 7515), provides how the funds derived from sixteenth section lands shall he used; and section 4705, Code of 1906 (Hemingway’s Code, section 7516), provides that the trustees of the township shall determine to which of the.different uses such funds may be applied, “and the trustees shall recommend to the boards of supervisors the lawful purposes for which the. available school funds of their townships ought to be appropriated, and the same shall be appropriated accordingly.”

In this ease the board of supervisors having borrowed the funds from the county under the said statutory authority, and being under duty under the terms of the act to pay the interest annually, and have it properly credited, and to reloan such interest when not applied to the uses provided by statute, wholly failed and neglected to do so, and wholly failed to comply with their duty to appoint trustees of the several townships so that the funds might be applied in the manner provided by law for the use of the inhabitants of the district. It is urged here that the state was without any power to bring the suit, because the statute had vested the control in the board of supervisors. Manifestly, the board of supervisors could not' sue itself, could not be both a party defend- and and a party complainant, and under the allegations of the bill the board refused, when requested and directed to make payment, to. do so. We think in this case that the state had the right to bring the suit as trustee, and that the equity court had jurisdiction over the subject-matter, because it was a trust and that the statute clothing the revenue agent with power to sue gives him the power to sué a county as well as the power to sue an individual or private corporation. Under section 1590 of the Code of 1906 (Hemingway’s Code, section 1357), being the chapter entitled “Definitions and Rules,” “the term ‘person,’ when used in a statute, shall apply to artificial as well as natural persons; and when used to designate the party whose property may be the subject of offense, shall include the United States, this state, or any other state, territory, or country, and any county, city, town, or village which may lawfully own property in this state; also all public and private corporations as well as individuals.”

The middle clause ' of this section is the only thing in the section that obscures the meaning of the section, so as to throw any uncertainty upon its meaning. However, it would be futile to declare in the last clause of the statute that the term also includesall public and private corporations as well as individuals,” if this last clause was intended to modify the middle clause. We think it is to be taken in connection with the first clause of the section, and so taken that it means not only artificial persons, as private corpoporations, but also includes public corporations. The term “public corporations” is used in this section; public corporations would include a county as well as a municipality. Our conclusions are reached and strengthened by the legislative history pertaining to the revenue agent’s office. In the beginning the statute was strictly construed, and the revenue agent’s rights were limited strictly to the statute’ when construed in a strict manner, but with each denial of the revenue agent’s power by the courts, the legislature has enacted the present statute, which seems to us to give the revenue agent the power to sue for the character of obligations embraced in the statute in all cases where the state, county, municipality, or levee board itself can sue. We do not see how any other construction could be given to the part of the statute that says, “and shall have a right of action and may sue at law or in equity in all such cases where the state or any county, municipality or levee board has the right of action or may sue.” Code 1906, section 4738 (Hemingway’s Code 1917, section 7056). This clause of the statute was not in the original statute creating the office of revenue • agent, and it seems to us to be put in for the very purpose of making manifest the legislative intent that the revenue agent, as to the character of claims covered by the statute, had the same right to sue that the county, state, or municipality would have.

It is argued by the appellee that as the revenue agent is the representative of the county and also the representative of the state in this class of litigation, that to uphold his power to sue would make him occupy inconsistent positions. We do not so understand the law. The revenue agent is given the power to sue, but is not required to defend, nor has he been given power in express terms to defend, suit in any case where the county, or state or municipality or levee board has been sued by individuals. It seems to us that the purpose of the statute was to make the revenue agent the representative of the state for the purpose of suing, and not the representative of the state in defending suits, and the same, would be true of the county or municipality or levee board; therefore he would be in no inconsistent attitude. It cannot be questioned but what the state can sue the county, or that the municipality can sue the county, or that one county can sue another, in any of the eases.- The power to sue a county is without limit in the statute conferring the power; that is, wherever there is a legal right of action the county may be sued, and has also unlimited power to sue, and the same is true of a municipality. The state has the power to bring suits in all cases where an individual could bring them, under the section above cited, but may not be sued except in cases provided by statute. We think there is no inconsistency in holding the revenue agent has power to sue the county, and that the construction which we have placed upon the statute is consistent with the policy of the law, and will insure, or at least tend to insure, that the obligations due to the state, to the several counties and municipalities and levee boards thereof, will be collected and properly applied.

The fact that the revenue agent may get a commission out of public funds is immaterial; the law has provided that he shall have no salary, and that he should have certain fees, wThich he can only collect by being successful in his work, and the legislature is the judge of the question as to whether it would be wise to permit the revenue agent to take toll of what he collects, rather than that he should be placed upon a salary. The evident purpose was to make the revenue agent earn his compensation, and, if he benefits the public by discovering and having applied funds that have been improperly withheld, the benefits certainly would outweigh the supposed evil.

We think that the chancellor erred in sustaining the demurrer, and the demurrer should be and is overruled, with leave to answer within thirty days after mandate reaches the court below.

Overruled..

---

Dissenting Opinion

Cook, J.

(dissenting).

' I think a careful reading of the statute, which' the opinion of the court relies on for the power of the revenue agent to prosecute this suit, will disclose the fallacy of the court’s interpretation of the statute. I understand the court to say that the statute empowers the revenue agent to sue corporations, and that the county is a corporation; ergo, the revenue agent possesses the power to prosecute this suit. It is quite clear to me that the county is not a corporation in the statutory sense. The two sections of the Code copied in the opinion make the revenue agent the representative of the public, and he is nowhere empowered to sue the public.

I am requested by Judge Smith to say that he concurs in this dissent.