State ex rel. Revenue Agent v. Thibodeaux

| Miss. | Oct 15, 1891

Woods, J.,

delivered the opinion of the court.

The act of the legislature of February 22, 1890, entitled “An act to provide for the collection of delinquent revenue in this state, and for other purposes, has for its leading purpose manifestly the coercion of delinquent tax-collectors, and, secondarily, its purpose is to secure collections of taxes due which the tax-collectors refuse or knowingly fail to collect. To carry out this scheme for the collection of unpaid taxes primarily from delinquent collectors, and secondarily from delinquent tax-payers, provision is made for the creation of a revenue agent. This revenue agent is clothed with certain powers, but the language employed in the act is not so well chosen as to put the real scope and extent of the agent’s duties and powers beyond controversy. 1

That the revenue agent is a collector simply, without any power to make assessments, has already been declared by this court in the case of State v. Adler, 68 Miss. It is equally .clear that he is not armed with power to collect taxes which may become due under the legal methods by which property may be placed on the assessment-rolls. Such taxes are to be collected and paid over by the tax-collector, the officer under our laws specially charged with that duty. It is clear, too, that the revenue agent may not sue for and collect license or privilege taxes until the tax-collector has refused or knowingly failed to collect such taxes.

In support of this view, it must be remembered that, as part of the machinery created by law for the safe, regular, and uniform collection of the public revenues of the state derivable from taxes, the tax-collector has imposed upon him the duty and responsibility of the collection of taxes, and we must not give that construction to the act creating the revenue agent which will deprive the regular'collector of the functions and emoluments of his office. The revenue agent is not only not to deprive the tax-collector of any of the duties and emoluments of his office, but, as was held in the ease of the State v. Taylor, 68 Miss., he shall notact in conjunction or co-operation with the collector, but rather adversely to him. He is to proceed against the collector primarily for any failure on his part to discharge his duty according to law in collecting and paying over taxes; and he is, secondarily, to proceed against tlie individual tax-payer who is delinquent for taxes due from him only when the collector refuses or knowingly fails to discharge his duty to collect such taxes from the individual tax-payer. We are not to suppose that the law may receive such construction as will devolve the same important public functions at the same time upon two distinct officers. The regular and orderly collection of the state’s revenues is not to be interrupted and imperiled by the struggles between rival officers and by the legal contests which would inevitably arise between the contending officials. The regular collector, with the moderate compensation provided by law for his official services in collecting the revenues in the usual way, is to collect without interference. When he refuses to do his duty in collecting, or when he knowingly fails to do his duty, then the revenue agent’s duty to proceed against the delinquent collector arises; and then, too, his duty arises to proceed against the individual tax-payer whose taxes the delinquent collector has refused or knowingly failed to collect. Any other view would involve the collection of the revenue in endless confusion.

Moreover, it is not to be supposed that the statute was designed to give to the revenue agent one-fourth of such taxes collected by him, when the regular collector is required and may be compelled to perform the same work for the usual small compensation.

Again, it is the right of the sheriff and tax-collector to ' make collection of taxes, and until he refuses or knowingly fails to do so, this right is Dot to be taken away from him. The case before us now will admirably serve to illustrate this view.

It is alleged that the appellee was a merchant who secretly sold spirituous liquors at retail at his place of business, and that he concealed such sales of liquor to evade the payment of the tax imposed by §1109, code of 1880; but that now his liability has been discovered, and hence the revenue agent sues to recover the tax clue under said section, the sheriff and tax-collector having failed and neglected to do so —neglected to do so because of the liability having been concealed, and not because of the tax-collector’s knowingly having failed. The knowledge of such liability now being known, it becomes the duty of the tax-collector to proceed to collect the tax due, and the presumption must be indulged that the collector will do his duty. If he shall refuse, or now’ knowingly fail to do so, the revenue agent should proceed against the collector and the sureties on his official bond, and against the delinquent tax-payer himself. Wherever the revenues of the state can be collected in'the ordinary mode provided by law, the interests of the public and the rights of the collector require that it be so done; and only when the ordinary machinery fails is it intended that the extraordinary agent shall interpose.'

In the construction of this statute creating the revenue agent, we must not overlook the very important fact that this court, in the case of French v. The State, 52 Miss., has determined that the sheriff and tax-collector has rights which cannot be taken from him; and this decision is to be regarded as approved and adopted by the constitutional convention of 1890, which ’continued in the new constitution substantially the provision as to sheriffs with reference to which this decision was made. In view of this, we are not to give the statute under consideration such construction as will authorize the collection of taxes, hitherto collectible only by the sheriff and tax-collector, by the revenue agent, except only in cases where the former officer refuses or knowingly fails in the discharge of his duty.

Furthermore, unless the view we are enforcing be the true one, we will be driven to concede that the legislature intended to arm the revenue agent with powers so extraordinary and sweeping as to put it in his power to vex every tax-payer in the state who may be thought not to have had all his property assessed at its full value, by a suit to collect the tax supposed to be due by reason of such undervaluation — a result so astounding aud so subversive of the existing order of the assessment and collection of taxes as to cause every thoughtful man to recoil from it. 1 " '

This suit is, confessedly, brought under § 1109, code of 1880, and is not‘maintainable.

The action of the court below in taxing the state toith the costs was error, and, for this cause only, the judgment of the court below toill be reversed and judgment entered here.