194 So. 915 | Miss. | 1940
The declaration filed herein by the appellant railroad company alleges that on or before the 1st day of February, 1939, the appellant, in order to prevent the imposition of penalties and the seizure and sale of its property, paid under protest to the appellee Audley B. *360 Conner, as sheriff and tax collector of Adams County, the sum of $1,523.81 in ad valorem taxes, which is alleged, for reasons therein specifically set forth, to have been illegally levied and assessed. The said taxpayer seeks a recovery thereof from both the said County of Adams and the tax collector on his official bond on the ground that the said officer, after being advised that the taxes were paid under protest as aforesaid, made a distribution of said funds by paying the same over to the proper authorities. Separate demurrers interposed by the county and the tax collector were sustained, and the railroad company appeals.
The county invokes Section 3276 of the Code of 1930 as being the exclusive method of procedure for obtaining a refund of taxes paid under the circumstances set forth in the declaration, and contends that it was therefore necessary that the taxpayer should follow the method provided under said statute, as a condition precedent to its right to maintain this action against the county. This same ground of demurrer was set up by the tax collector, and he also assigned the further ground that the declaration shows on its face that, prior to the institution of this suit, he had already fully accounted to and settled with the County of Adams and the State of Mississippi for his collection of said taxes, as he was required by law to do.
The method prescribed by said Section 3276, supra, for obtaining a refund of taxes by having the Auditor of Public Accounts investigate such claims, and, if he shall find that taxes have been erroneously paid into the treasury of the state, county or levee boards, to audit the same against each separate fund in proportion to the amount paid over to such fund in each case, and submit such audit and the evidence on which the claim is based to the Attorney-General for his inspection and approval, was first adopted by the enactment of Chapter 76 of the Laws of 1900, which was brought forward in the Code of 1906 as Section 4346 thereof. There also *361 appears in that Code another statute, Section 311, which reads as follows: "A person having a just claim against any county shall first present the same to the board of supervisors thereof for allowance; and, if the board shall refuse to allow it, may appeal from the judgment of the board to the circuit court, or may bring suit against the county; and, in either case, if such person recover judgment, the board of supervisors shall allow the same, and a warrant shall be issued therefor."
In the case of Illinois C.R.R. Company v. Attala County,
In the case of Schmittler v. Sunflower County,
However, the second ground of demurrer assigned by the appellee tax collector was well taken. Having received the tax money in question under an assessment and levy against the property of the appellant, even though the same was paid to him under protest as alleged, it was his plain duty under the positive mandates of Sections 3289, and 3292 to 3297, inclusive, and also Section 1078, of the Code of 1930, to pay over the same to the proper authorities on the first day of the month immediately following such collection, or within twenty days thereafter, under the penalty of being subject to suspension from office by the Governor, and the payment of thirty per cent per annum damages, et cetera. The requirements of these statutes contain no exception as to taxes paid under protest, but are applicable to all taxes coming into the hands of the tax collector by virtue of his office. This being true, it does not accord with right and justice that a sheriff and *364 tax collector who has paid over funds under such circumstances, as expressly required by law, should be further liable for the refund thereof to the taxpayer; and in the absence of any statute imposing such liability, we decline to so hold.
It is true that in the case of Matthews et al. v. Rodgers et al.,
Then too, if a tax collector should be held to act at his own peril in paying over to the proper authorities all taxes paid to him under protest, and be required to withhold the same at the will of the taxpayer, a situation could frequently arise where such payments would become sufficient in number and amounts to seriously interfere with the proper and orderly functions of governmental subdivisions, pending the determination of the legality of the levies and assessments under which the same may have been collected without regard to the merit of such claims. Aside from this consideration, however, such collector should not be required to incur the risk of being suspended from office or subjected to other penalties provided by law for failure to promptly pay taxes into the proper treasuries when collected; and this is especially true since the taxpayer has adequate remedy against the county receiving the same, if the levy and assessment thereof should be declared illegal.
It follows from the foregoing views that the demurrer of the sheriff and tax collector should have been sustained, and that of the county overruled.
Affirmed in part; reversed in part; and remanded. *367