90 So. 83 | Miss. | 1921
Lead Opinion
delivered the opinion of the court.
The state revenue agent prosecutes an appeal to this court from a final decree of the chancery court of Copiah county denying him twenty per cent, commission which he claimed to be due him from the collection of taxes from a large number of delinquents for state and county taxes for the year 1916. It is his contention that his investigation and activities resulted in the collection of these taxes, thereby entitling him to his commission under section 4748, Code of 1906 (section 7066, Hemingway’s Code), which section reads as follows:
“Neither the state nor any county, municipality, or levee board shall be chargeable with any fees or expenses on account of any investigation or suit made or instituted by the state revenue agent; and he shall not receive any salary; but he shall be entitled to retain, as full compensation for his services and expenses, twenty per centum on all amounts collected and paid over by him, and of the purchase money of all lands bid in for the state by him and sold by the land commissioner.”
The bill alleges that he made an investigation of the records on file in the office of the state auditor, and discovered that a large amount of taxes due for that year were past due and unpaid into the state treasury, and thereupon he sent some deputies to the county of Copiah, who made a careful investigation and audit of the books of the fiscal officers of that county and found therefrom on July 27, 1917, there were a large number of tax delinquents, a copy of which list is filed as an exhibit to the bill. It appears from the record in this case that this copy was made by the deputy of the revenue agent from a list of unsigned tax receipts already made out in the tax collector’s office. These receipts covered delinquent owners of real property, including in some cases all personal property of these real estate owners. No unsigned receipts had been made out for delinquents upon personal property alone, and no effort was made by this deputy to ascertain
It is shown by the testimony that the county tax collector had been actively engaged in the collection of taxes since they became due, and had sent out a number of notices to the delinquent taxpayers, urging them to pay their taxes, one of which notices was sent out several days before the notice of the revenue agent. The record further shows that there had been no sales of lands for delinquent taxes in Copiah county on April 1st, nor at any other date before the revenue agent attempted to intervene in the matter. It is undisputed, however, that the county tax collector during all this time was actively collecting taxes and actively attempting to collect these delinquent taxes. These delinquent taxes as a matter of fact were paid directly to the sheriff. There is no testimony in the record showing that any of these taxes were paid because of the notice sent out by the revenue agent. The bill expressly charges that the payment of these taxes made to the county tax collector was “a direct and proximate result of the investigation and service of complainant’s acting in his official capacity as aforesaid.” These receipts for delinquent taxes when issued were all dated February 1st, though some of the taxes as a matter of fact were not paid until August.
The appellant also attempted to show that the custom had existed in this county for many years not to advertise for sale the real property on April 1st, as provided by the statute. The testimony of the sheriff and other witnesses was to the effect that he did not prepare this list for sale at that time because of certain discrepancies in the assessment roll, but made an oral request of the board of supervisors that the sale be pretermitted to a later date. This, however, constituted no legal excuse for the postponement of the land sale.
The narrow issue presented to the chancellor of the court below was whether or not the investigation of the revenue agent was the proximate cause of the payment of these taxes to the tax collector. To state this contention in the language of the learned counsel for the appellant as contained in his splendid brief:
“Appellant claims that his investigation and activities resulted in a collection of the taxes, entitling him to his commission of twenty per centum upon a total delinquency of between seven thousand dollars and ten thousand dollars.
*368 “The revenue agent did not file any suits against the delinquents, nor did he personally collect the taxes, but he claims his commission by virtue of the fact that such delinquency was discovered by him the latter part of July, 1917, and he sent in due course of mail each delinquent a notice; further because said notices demanding payment were mailed at Jackson, Miss., on July 29, 1917, and that, beginning the next day and continuing on the subsequent days immediately thereafter, the delinquents paid the tax collector such delinquent taxes.
“That the presumption must be indulged that his investigation and the mailing of notices to the delinquents resulted in the taxes being collected, although the delinquents did not pay the money over to the appellant, but paid it to the indulgent tax collector, the appellee, who had, without warrant of law, failed to take any steps whatsoever as required by law to advertise the delinquent lands for sale, or in any respect to comply with the statute in such cases of delinquency.”
The chancellor held as a matter of fact that the investigation and activities of the revenue agent Avere not the sole and proximate cause of the payment of the taxes. In affirming the decision of the chancellor we are not here called upon to decide whether the state revenue agent is empowered under the statutes to attempt the collection of past-due and unpaid taxes when the uncontradicted record shows that the county tax collector is still attempting to collect these same taxes.
In this case the taxes were past due and unpaid. No effort had been made to advertise and sell the lands and no coercive measures had been taken by the sheriff to collect these taxes when the revenue agent made his investigation. Without setting out in detail, however, all' of the statutes relating to the duties of the county tax collector, it will be seen by an examination of them that he is required at all times to attempt to collect all past-due and unpaid taxes. He is chargeable with these taxes until he has presented to the board of supervisors at its August meeting a report
In this case no insolvency report had been made by the sheriff, and he had not asked for any credits as provided for in these two statutes. Under these statutes it is primarily the duty of the county tax collector to collect these taxes. It is further to be noted that under section 4326, Code of 1906 (section 6960, Hemingway’s Code), lands cannot be sold for delinquent taxes until the first Monday in April, while personal property liable for a tax may be sold after December 15th by the tax collector, as provided by section 4315, Code of 1906 (section 6949, Hemingway’s Code). In this case the revenue agent did not bring suit for the collection of these past-due and unpaid taxes; neither were the taxes paid directly to him.
By section 4739, Code of 1906 (section 7057, Hemingway’s Code), it is made the duty of the state revenue agent to investigate the books, etc., of all 'fiscal officers of the state, county, municipality, etc., and to sue for, collect and pay over all money improperly withheld by any of these officers; and, further, that if the delinquency appears by correct open account on the books, the right of the revenue agent to sue shall arise only after he shall have given thirty days’ notice to the delinquent officer to pay over the amounts and he fails to do so. Under section 4744, Code of 1906 (section 7062, Hemingway’s Code), in the discharge of his official duties, he is given the power to examine and investigate the books, etc., of any state, county, or other officer. Section 4748, Code of 1906 (section 7066, Hem
The first question presented to us, conceding, but not here deciding, that the revenue agent had a right to intervene and attempt the collection of these delinquent taxes, is whether or not, since he did not collect them by suit or any other coercive statutory method, he can claim that they were paid to the sheriff as a direct result of his investigation or activity. We think, unquestionably, that under our statutes the primary duty of collecting these taxes rests upon the county tax collector, and when he is aetivelv attempting to collect taxes,' and is collecting taxes, and these taxes are paid to him, then the revenue agent cannot claim that they were paid because of his investigation.
In the case of Railroad Co. v. West, 78 Miss. 789, 29 So. 475 (relied upon by appellant), the revenue agent had brought suit for the taxes before the county tax collector had made any attempt to collect them. As is shown on page 811 of 78 Miss., on page 476 of 29 So.:
“The revenue agent having begun his suit before the sheriff began his procedure, and that suit being necessary to determine whether the exemption was valid, every reason of laAV and of public policy maintains the right of the revenue agent to conduct these suits to conclusion, and collect the taxes without interference from the sheriff.”
• In that case it was also necessary for the court to pass upon the question of the validity of the exemption before the sheriff was authorized to collect any taxes from the railroad company.
The case mainly relied upon by appellant is that of Adams v. Bolivar Gounty, 75 Miss. 154, 21 So. 608. That was a case where there was a defaulting tax collector. He had failed to pay over at the proper time into the county treasury taxes collected by him and due the county. This defalcation appeared upon the face of his books. The revenue agent, proceeding under section 4739 above referred to,
And it was held that the revenue agent is entitled to his commission out of moneys 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.
“He is to be paid, when successful, for both his ‘expenses and his services.’ Expenses might be incurred by him both in an investigation and in a suit. Services he could ordinarily render, in the meaning of this statute, chiefly, at least,-in the making of the investigation alone; for, that made, he has no ‘services’ to render, when a suit is instituted, except the merely incidental one of attending to the suit in its progress, conducted for him by attorneys. The legislature meant to pay him for ‘his services’ — compensate him for work done by him resulting in the collection.”
“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.”
The revenue agent gave this notice, and the tax collector failed to pay the funds to the county within the thirty days, .after which the revenue agent placed the account in the hands of his attorney for the purpose of suing. In other Avords, every step as prescribed by section 4739 was taken by the revenue agent in that case except the actual filing of the suit. Though the time had passed for the tax collector to make settlement with the county, he had failed to do so, and neither the county nor any one was attempting to coerce a settlement from this delinquent tax collector at the time the revenue agent began his investigation.
In the case at bar the tax collector was not a defaulter under section 4739, Code of 1906 (section 7057, Heming-Avay’s Code). The investigation of the revenue agent was not made under this section. He was not proceeding under this section to try to collect the taxes from delinquent taxpayers. True he is given the authority to investigate the books of officers both under sections 4739 and 4744, Code
In the case at bar the investigation of the revenue agent resulted in nothing that ivas not already known by the tax collector — in fact this investigation verified the work of the tax collector. It further showed that the tax collector knew of these delinquencies, and corroborates the testimony, which is in fact uncontradicated, that he was trying to. collect the taxes, doing everything in fact short of coercive measures to enforce the collection. There had been no abandonment of the collection of these taxes by him. Neither the tax collector nor the revenue agent in this case resorted to coercive measures. It was primarily the duty of the tax collector to collect these taxes. The record shows that he was attempting to do so, and that the taxes were actually paid to him. These facts emphasize the difference between this and the Bolivar County Case. The opinion in the Bolivar County Case states that the decision of that case falls strictly within the principle of Miller v. Delta & Pine Land Co., 74 Miss. 110, 20 So. 875, because “the tax collector had entered upon the doing qf the acts which entitled him to damages, so here the revenue agent had entered upon and done all that he could ordinarily do.” In the Miller Case the tax collector had begun his advertise
“A collection by resorting to any of the plans named in the statute entitles the officer to the per centum, even though the proceeding is interrupted by payment of the taxes. . . . 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. The compensation is given as a unit; it cannot be apportioned. It is given Avhen the collection is made by distress or other proceeding provided by the law, and the proceeding is necessarily also to be viewed as a unit.”
In the Miller Oase, sufra, the “other proceeding” provided by the law clearly means some statutory coercive proceeding in the nature of distress proceedings. This is made manifest by examination of the case of Anderson y. Hawks, 70 Miss. 639, 12 So. 697, which is referred to in the Miller Case, wherein it was held that this ten per centum compensation allowed the tax collector was not in the nature of a penalty, but was allowed as compensation for additional services to be performed by the tax collector, and that when no action had been taken by the collector to coerce payment of the taxes he was not entitled to the per 1 centum. In the Anderson Case the taxes were paid to the collector after the delinquency had occurred, but before any coercive measures Avere taken by the collector. The collector claimed that he was entitled to the ten per centum because of the delinquency. The court denied this contention as follows:
“Keeping in vieAV the fact that the allowance is made as compensation for services, and that delinquent taxes may be collected: (1) By distress of personal property;*375 . . . (2) by sale of land; . . . (3) by certifying tbe assessment to other counties in which the delinquent may have property; . . . (4) by suit; . . . (5) by action on the bond required of transient traders . . . — it is not difficult to discover the meaning of the Avords ‘or otherwise/ which, upon familiar rules, are to be construed as applying to matters ejusdem generis as the preceding particular words, a pontrary intention not appearing.”
The Bolivar County Case cites Avith approval the Miller Case. The Miller Case cites Avith approval the Anderson Case. From the Miller and Anderson Cases it is perfectly manifest that the tax collector is not entitled to his ten per centum unless he resorts to some of the coercive methods specifically enumerated in the Anderson Case, and when the Bolivar County case is considered in connection with these íavo cases it is plain that the revenue agent is not entitled to his tAventy per centum, unless he resorts to some statutory coercive method which results directly in the payment of the taxes. The only thing he did in this case which is prescribed by the statute was to make an investigation. This investigation resulted in'nothing that was not already known to the tax collector and delinquent taxpayers. In fact the tax collector already knew the facts, and had actually made out a list of those delinquents. The revenue agent obtained this knowledge from the books of the tax collector, consequently this investigation revealed nothing that Avas not already generally known. Under none of our decisions is the revenue agent entitled to any fees or commissions merely for an investigation.
In the case of Garrett v. Robertson, 120 Miss. 731, 83 So. 177, the revenue agent actually instituted suits against two banks for past-due and unpaid taxes, and as a direct result of this coercive action of the revenue agent these taxes Avere paid. In that case we held that the revenue agent was entitled to his commission because he had instituted suit (a coercive proceeding), and as a direct result of the institution of these suits the taxes were paid, citing the Miller and Bolivar County Cases.
“The compensation provided by our laws for tax collectors was designed to cover cases where collections were actually made by those officers. The remuneration, whether upon taxes paid without default on the part of the taxpayer or upon taxes collected from delinquent taxpayers, is in the way of recompense for services actually performed. . . . The law never contemplated compensation for services never rendered. . . .
“An examination of our statutes shows clearly that there is no provision for commissions where no collections of taxes are made, with the one solitary exception hereinbefore noticed” — which is not in point in this case. This opinion concludes as follows: “We know of no such service by an officer as constructive service. There must be an actual collection of taxes, not a constructive collection, to entitle to compensation.”
In the Love Case, by statute, the railroad company could pay its taxes either to the levee board or to the tax collec
The only coercive measure by which the state revenue agent can collect past-due and unpaid taxes which have been assessed is found in section 4738, Code of 1906 (section 7056, Hemingway’s Code), which empowers him “to proceed by suit . . . for all past due and unpaid taxes of any kind.” He did not do so in this case. The sheriff was attempting the collection of these taxes. He had not made his insolvency report and asked to be credited with these delinquent taxes as provided by statute. Primarily it was his duty to collect these taxes. He actually did so. Under these circumstances it was not proper to consider the question as to whether or not the taxes were paid to the sheriff as a result of the activities of the revenue agent which were not coercive statutory activities.
If this question had been proper to be considered in the lower court the burden of proof would have rested upon
The chancellor rendered a decree in favor of the tax collector, and this decree is affirmed.
Affirmed.
Concurrence Opinion
(concurring specially). The majority opinion concedes, for the purpose of the decision, but does not decide, that the right of the revenue agent, and the right of the tax collector to collect the taxes in question were coequal, and holds that the revenue agent is not entitled to any commission because the taxes were actually collected by the tax collector at a time when the revenue agent had not taken any coercive measure to enforce payment. Assuming the soundness of that premise, I agree with the conclusion reached. But I am unable to concur in its soundness, for in my opinion they did not have concurrent authority to collect. Under the facts of this case the revenue agent had no right to act. He was without authority to collect these delinquent taxes either with or without suit. He had no right to supplant the tax collector, who had the primary light to collect, regardless of how derelict the latter was in his duties. The law has not set up the revenue agent as a censor over the tax collector in the performance of his duties. As long as the tax collector is “on the job,” the revenue agent is without authority to act. It is true the statute gives the revenue agent the right to sue for all delinquent taxes, but this statute must be construed in connection with all the other statutes covering his duties, as well, as those covering the duties of the tax collector, and, if possible a consistent, reasonable, scheme must be deduced therefrom.
• Furthermore, section 4738, Code of 1906 (section 7056, Hemingway’s Code), which confers the power on the revenue agent to sue for all past-due and unpaid taxes, expressly limits that power to such suits as under the laAV the state, county, municipality, or levee board has the right to bring. That qualifying clause of the statute is in this language:
“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.” '
Could the county have sued for these taxes while they were in process of collection by the tax collector, and before the latter’s delinquent list was due to. be filed for allowance by the board of supervisors? I think not. To permit such interference by the board of supervisors might mean frequent conflict of authority and great confusion in the financial affairs of the county. This view does not mean that where any one or more delinquent taxpayers had refused to pay their taxes, and proposed to contest their legality (as in the West Case, supra) the county or the
It is inconceivable that the legislature intended to give the revenue agent the power to sue every taxpayer in the state who has failed to pay his taxes on or before the 15th day of December, notwithstanding the tax collector may be performing their duties in the usual and customary manner, although not in strict compliance with the law.
I agree with the dissenting opinion that the revenue agent is entitled to his commission without suit where he is rightfully exercising the authority conferred on him by law, and that the power to sue carries with it the power to collect without suit.
I concur in the affirmance of the case, but not entirely in the reasoning of the majority opinion by which that result is reached.
Dissenting Opinion
(dissenting). I find myself wholly unable to agree with the opinion of the majority in this case. Some further statement of the case and reference to certain statutes Avill be necessary to make my conclusions understood clearly, and, as I think, make the case properly understood by the bar.
The suit was filed in 1917 for the taxes of the year 1916. The land roll upon which the present suit is based was made up and duly approved in 1915, and the taxes for that year collected partly by the outgoing sheriff, who went out of office on January 1, 1916, and partly by the defandant, who assumed office on that date and completed the collection for that year. The only assessment made in 1916, was the assessment of personal taxes. At the legislative session of 1916 the tax commission was created, and its duties prescribed by law, and under that act it was necessary for the tax commission to approve the assessment of personal property, but it had nothing to do with the assessment of real property. The • assessment roll was turned over to the sheriff prior to November 22, 1916, and be began collecting taxes upon that date. By the 1st of December, 1916,
The sheriff testified that people offered to pay their taxes, that checks were sent in letters, and said letters were unanswered, or many of them unanswered, on the 1st of April, 1917; that, after answering these /letters, they made up a list of tax receipts of the taxpayers involved in the present suit, and dated said tax receipts as of date February 1st, 1917, and that none of the taxes involved in the present suit were paid on - February 1st or at any other time prior to the demand of the revenue agent. The tax collector did not make any written report to the board of supervisors of these delinquencies, nor did he seek to secure an order to sell the said lands at a later date, and had taken no steps other than to send out a few notices prior to the date the investigation of the revenue agent was made, and notice served upon him of the delinquencies and demand made upon him by the revenue agent for possession of the office and books for the purpose of collecting the
The revenue agent obtained information from the auditor’s office in Jackson, Miss., that the tax collector of Copiah county had not settled with the state for the taxes charged against him, and about July 23, 1917,'the revenue agent sent his deputy to investigate the matter, he having at said time other persons and accountants working on the records of that county in other matters. The deputy revenue agent went to the sheriff’s office, called for the books which were turned over to him, and found a large number of tax receipts made out, but unsigned, dated February 1, 1917, and embracing lands assessed to the owners, and he took the cash-books and the other records of the office and checked them against the tax receipts, and found the charges about which the suit was instituted, and made up a list of the persons and the amounts due, and served it upon the sheriff on July 28, 1917, and also filed a copy.with the board of supervisors. While making the investigation, and on or before the 28th of July, 1917, the deputy revenue agent had notices printed in the county site of Copiah county to the several delinquent taxpayers, and returned to Jackson, Miss., with such notices, and they were mailed out on the 29th of July, 1917.
No report is shown to have been made to the board of supervisors in writing by the sheriff, and no corrected as
I desire to notice some of the statutes bearing on the controversy.
Section 4264, Code of 1906 (section 6898, Hemingway’s Code), requires the taxpayer to furnish a list of his taxable property to the tax assessor.
Section 4270, Code of 1906 (section 6904, Hemingway’s Code), prescribes the form to be furnished the taxpayers for their information and convenience in rendering their assessable property for taxation.
Section 4271, Code of 1906 (section 6905, Hemingway’s Code), requires the tax assessor to call attention to the oath appended to this list; and section 4276, Code of 1906 (section 6910, Hemingway’s Code), requires the assessor to report all persons to the board of supervisors who in his opinion have not made a correct assessment.
■ Section 4282, Code of 1906 (section 6916, Hemingway’s Code), requires the land of the county to be accounted for on the roll.
Section 4291, Code of 1906 (section 6925, Hemingway’s Code), provides that the assessor shall make oath appended to his roll showing that he has faithfully endeavored to assess all persons and property in his county.
Section 4293, Code of 1906 \section 6927, Hemingway’s Code), gives the board of supervisors power to extend the time for filing the roll if it finds the assessor capable, but that he has failed to complete and return his assessment, etc.
Section 4294, Code of 1906 (section 6928, Hemingway’s Code), requires the board of supervisors to examine the roll at its July meeting to see if the new assessment is necessary.
Section 4296, Code of 1906 (section 6930, Hemingway’s Code), provides a privilege of taxpayers to appear and object to the assessment roll, and provides that all persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity after its approval, excepting only minors and persons non compos mentis.
Section 4299, Code of 1906 (section 6933, Hemingway’s Code), provides what land may be reassessed and how.
Section 4301, Code of 1906 (section 6935, Hemingway’s Code), provides that this order for assessment shall be made on the first Monday of July, or the first Monday of August of the year, and that the new assessment, if made, shall be completed within such time as may be allowed, not exceeding ninety days.
Section 4303, Code of 1906 (section 6937, Hemingway’s Code, requires notice of the return and filing of the roll to be given by publication, and charges all persons with notice of the filing of the roll and with notice of the time within
Section 4308, Code of 1906 (section 6942, Hemingway’s Code), provides for the hearing of objections and the approval of the roll, and requires the board of supervisors at the time mentioned to make all corrections.
Section 4308, Code of 1906 (section 6942, Hemingway’s Code), provides for the roll to be sent to the auditor of public accounts for approval, and that if incorrect that he shall return it to the board of supervisors for correction.
Section 4312, Code of 1906 (section 6946, Hemingway’s Code), provides how changes in the assessment roll may be made.
Section 4314, Code of 1906 (section 6948, Hemingway’s Code), reads as follows:
“On receipt of the assessment rolls the collector shall immediately proceed to collect the taxes, adding the county tax due by each person to his state tax, and -collecting all together; and it shall be the duty of every person assessed to páy his taxes to the collector on or before the fifteenth day of December.”
Section 4315, Code of 1906 (section 6949, Hemingway’s Code), reads as folloAvs:
“All taxes remaining unpaid on the fifteenth day of December, shall immediately be collected by the collector, by distress and sale of any personal property liable therefor; and such sale shall take place at the courthouse door, unless the property distrained be too cumbrous to be removed; and five days’ notice of the time and place of sale shall be given by advertisements put up in three public places in the county, one of which shall be at the courthouse door; and the collector shall be allowed to collect and retain, in addition to the taxes, fees and costs, all necessary expenses of removing and keeping the property dis-trained.”
Section 4316, Code of 1906 (section 6950, Hemingway’s Code), provides that persons delinquent for poll taxes
Section 4323, -Code of 1906 (section 6957, Hemingway’s Code), provides for the keeping of a cashbook by the tax collector, in which he shall enter the number of each tax receipt issued by him, the name of the person being taxed, and the amount paid, etc.
Section 4324, Code of 1906 (section 6958, Hemingway’s Code), provides he shall present this cash book to the board of supervisors- when required, and upon final settlement with the auditor of public accounts, etc.
Section 4326, Code of 1906 (section 6960, Hemingway’s Code), reads as follows:
“After the fifteenth day of January the tax collector shall advertise all land in his county on which the taxes have not been paid, or which is liable to sale for other taxes, for sale at the door of the courthouse of his county on the first Monday of April following; such advertisement shall be inserted for three weeks in some newspaper published in the county, if there be one, but in counties having two court districts the land shall be advertised and sold in the district in which such lands are situated, and be put up at the courthouse door, and shall contain a list of the lands to be sold in numerical order as they are contained in the assessment roll, in substance as follows: Name of Owner. Division of section. Section. Township. Range. State Tax. County Tax . Total Tax — or by such other designation as it may be assessed. Land in cities and towns shall be described in the advertisement as it is described in the assessment rolls.” ■
Section 4328, Code of 1906 (section 6962, Hemingway’s Code), provides for the sale of land for taxes remaining unpaid.
Section 4350, Code of 1906 (section 6984, Hemingway’s Code), provides that the tax collector, if the taxes assessed
Section 4343, Code of 1906 (section 6977, Hemingway’s Code), provides that notice be given to the debtor of such taxpayer which shall bind the debt in his hands, etc.
Sections 4346-4348, Code of 1906 (sections 6980-6982,-Hemingway’s Code), provide for refunding erroneous payments and double payments.
Section 4350, Code of 1906 (section 6984, Hemingway’s Code), provides that the tax collector shall present to the board of supervisors at its meeting on the first Monday of August of each year a report of all insolvent and delin- ' quent taxpayers in his county, with the amounts due from each, which report shall be verified by affidavit of the collector that he has made in person or by deputy a legal demand for the taxes of all delinquent taxpayers in his county by going to their places of abode or business, and searching for something to seize and sell for taxes, and that the said taxpayers have not paid their taxes and have no effects known to him to pay the same, and that he has made diligent inquiry of such delinquents as have not been found, and cannot find them in his county, and that they have m> effects known to him which can be made to pay the taxes.
These statutes show absolutely that the tax collector was in default, and that no legal excuse existed therefor. It was clearly his duty to comply with these sections, and he had no right or power to change the assessment, and neither did the the board of supervisors, except as authorized by these sections, and there never was any attempt to comply with them. The tax collector had in legal effect abdicated the office to which he was elected so far as his tax-collecting duties were concerned. The taxes were to be paid on or before the 15th day of December. If not paid by that time the sheriff was inquired to distrain and sell per
When the assessment roll was made up by the assessing authorities and approved, the same became binding, and it was clearly the duty of the sheriff to conform to the law. No responsibility attached to him for any mistake in the roll. So in this case we say that the taxes were past due and unpaid, and that the tax collector was making no effort and had made no adequate effort to collect them; the state and county Avere entitled to the taxes due them.
Section 4738, Code of 1906 (section 7056, Hemingway’s Code), reads as folloAvs:
“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 contractors, persons, corporations, companies, and associations of persons for all past-due and unpaid taxes of any kind Avhatever, for all penalties or forfeitures for all past-due obligations and indebtedness of any character AArhatever 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 laAV 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.”
“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 proper levee board.”
It will be noted from these sections that the revenue agent is given poAver and it is made his duty to investigate the books, accounts, and vouchers of all fiscal officers of the state, and to collect, sue for, and pay over all moneys improperly withheld from either. The investigation is as much a part of his duty as the bringing of suits. - In section 4748, Code of 1906 (section 7066, Hemingway’s Code), his commissions are fixed, and the commission so given is not only to cover compensation for suits brought, but is also to compensate him for investigations made. When he investigated the books and found unpaid and uncollected taxes due to the default and negligence of the tax collector, he had done a service for the state and county for which he was entitled to compensation. It is the policy of the state that the revenue agent shall not have a salary, and that he shall not be paid anything except when the result
Section 4749, Code of 1906 (section 7067, Hemingway’s Code), provides that where a revenue agent sues delinquent taxpayers he shall make the tax assessor and tax collector parties to such suit, and if it appear that the failure of the taxpayer to properly pay his tax was caused by any willful default or negligence of the tax assessor or tax collector, judgment shall be rendered against the defaulter or defaulters for the amount of the compensation of the revenue agent.
In the present suit the revenue agent made demand upon the sheriff and upon the board .of supervisors, and upon the delinquent taxpayers. The proof shows to the reasoning mind that it was this demand of the revenue agent that produced the result, and not any activities of the tax collector. As soon as the demaiid of the revenue agent was made the taxes began to pour in. The sheriff had made demands from time to time, but with practically no results, and the deputy sheriff told the deputy revenue agent when he made demand for the books, stating that it was his purpose to collect the taxes, that in the opinion of the deputy sheriff the revenue agent would have no better success than they had had.
In Miller v. Delta & Pine Land Co., 74 Miss. 110, 20 So. 875, this court made plain that when an officer charged with
“A collection by resorting to any of the plans named in the statute entitles the officer to the per centum, even though the • proceeding is interrupted, by payment of the taxes. The sum given by the statute cannot be apportioned, and a larger or smaller amount, in proportion to the work done, be awarded as on a quantum meruit; the collector is entitled to all or none. 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. The compensation is given as a unit; it cannot be apportioned. ,It is given when the collection is made by distress or other proceeding provided by the law, and the proceeding is necessarily also to be viewed as a unit.”
A careful reading of the case of Miller v. Delta & Pine Land Co., supra, will convince the reader, it seems to me, that when an officer performs and is performing a part of his duty for which he is allowed compensation, he cannot be defeated of his just rights by the adversary person taking some steps before the full duty is performed. In that case the sheriff had merely advertised property for sale, and the question was whether he was to be allowed his full fee of ten per cent., where the taxpayer had come in and paid before the sale was consummated.
In the case before us now no suit could be brought until there was an investigation. The facts had to be ascertained before it could be determined what to sue for or whether any suit at all would lie. A suit when filed is merely a demand for the payment-of the taxes. Until the trial or judgment is entered, nothing more than a demand has been made. The revenue agent made demand, and also made the investigation, which disclosed to him, and through him
In Anderson v. Hawks, 70 Miss, 639, 12 So. 697, no action had been taken by the sheriff whatever; no investigation had been made; no fact had been determined; and the court said that the law did not pay gratuitous fees; that the officer’s compensation was for some duty done or performed.
In Adams v. Bolivar County, 75 Miss. 154, 21 So. 608, the court held that the state revenue agent was entitled to his fees for investigating and giving notice and preparing to file suit against a delinquent officer when the officer had before the filing of the suit paid the money, but had failed to pay it within the time prescribed by law for it to be paid. In this ease the court quoted from the Miller Case, supra, and then said (75 Miss. 162, 21 So. 610) :
“The investigation is as much a part of the proceeding for collection as the suit, and here, no more than there, can the compensation be made to depend upon the will of the delinquent.
“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.”
“In the execution of the legislative scheme the revenue agent is the directing, impelling agency provided for to put in action the officers and machinery contemplated by the Constitution. He is the state’s agent to compel action by other officers, in order that the constitutional scheme by which all property was intended to bear its equal portion of taxation shall be effectuated. To accomplish this purpose, it is as necessary that the machinery once set in motion shall be kept going until the end is reached, as it is that motion shall be inaugurated. By the Code provisions it was intended and provided that the desired result should be secured in the name and by the action of the revenue agent, and it could not be doubted that the agent was a 'party’ to whom the right of appeal was given by section 4193 of the Code. Section 3 of the act of 1894 is, as we have said, a mere change of the Code provisions to disembarrass the general plan and purpose of the legislature from constitutional objection pointed out in the decision in the Tonella Case [70 Miss. 701]. We cannot doubt that the appeal it provides was intended for the revenue agent on the one side and for the party whose property or calling was intended to be taxed.”
In Y. & M. V. R. R. Co. v. West, 78 Miss. 789, 29 So. 475, this court held specifically that taxes were due and unpaid on the 16th day of December, and that under the law making taxes a debt due by the taxpayer suit could be maintained on that date; that the act of 1894 removed the limitation of one year provided under the prior laws, and that the suit could be maintained as soon as the taxes were past due and unpaid; that the tax collector had from the time the rolls were, turned over to him until the 15th day of December in which to collect the taxes, and the taxpayer had that time in which to pay such taxes,, and if they were not paid within that time that suit could be maintained by the revenue agent; that the tax collector had no power
In Brougher v. Conley, 62 Miss. 358, the court specifically held that the board of supervisors had no authority to postpone the land sale for taxes provided by law, and that a sale made under such postponed sale ivas void notwithstanding section 558 of the Code of 1880. It was said in that case:
“This is a valuable provision, but was not intended to arm a board of supervisors with the dispensing power as to the laws enacted for the collection of public revenues. Such a construction would make it the instrument of incalculable mischief. The object and scope of the section is to provide for the case of a failure from any cause to sell land for taxes at the time ’prescribed by law.
“If after the time fixed by law for sale of land for taxes it appears that any land liable to such sale was not sold, as it should have been, it may be sold by order of the board of supervisors. The section sprang from the apprehension that by inadvertence or oversight some land might escape sale at the regular time, and was intended especially for such cases.”
In Garrett v. Robertson, 120 Miss. 731, 83 So. 178, it was held that the revenue agent was entitled to his commission where he had filed suit even though the tax was paid to the sheriff and not to the revenue agent.
In Harrison County v. Robertson, 121 Miss. 387, at page 396, 83 So. 617, at page 618, it is said:
“It is likewise true that the voluntary payment of taxes by delinquent taxpayers to the tax collector, instead of to the revenue agent, makes no difference in the right of the revenue agent to demand his commissions, provided only that the taxes were paid as a result of a demand and litigation instituted by the revenue agent.”
I think that the propositions announced in the majority opinion that the institution of suit is the only method by which the revenue agent can recover compensation is not only erroneous, but will result practically to the detriment of the taxpayer by forcing him to pay the court costs in addition to the demands of the state, county, and municipality for their taxes. Manifestly if the revenue agent must investigate the books in all cases without compensation unless he filed suit, and being charged by law with the making of investigations, he will necessarily be compelled to institute suits before making demands upon the taxpayers. It is contrary to the conception of the law as heretofore administered. The larger part of the collections through the revenue agent’s office have been made as a result of notice and demand without suit, but if suit must be filed to entitle the revenue agent to his commissions, necessarily he will have to bring suit, which itself is only a demand in all cases to obtain his compensation for the duties performed.
As stated above, I think the investigation is a necessary step, and that alone is sufficient to authorize the payment of the revenue agent’s commissions when the money is actually collected as a result of his investigations and activities. I cannot agree with the majority that it is incompetent to show by proper evidence that taxes were paid as a result of the revenue agent’s activities. Of course, in most cases you must judge from the facts. What the revenue agent did, and what the taxpayer did, and what the tax collector did, are to be taken and considered, and logical deductions drawn therefrom, but this does not preclude the showing by evidence that the taxpayer paid the taxes as the result of the investigation and demand of the revenue agent.
