Adams v. Bolivar County

• Decision Date: 15 March 1897
• Citation: Adams v. Bolivar County, 75 Miss. 154, 21 So. 608 (Miss. 1897)
• Court: Mississippi Supreme Court
• Parties: WIRT ADAMS, STATE REVENUE AGENT v. BOLIVAR COUNTY

21 So. 608

75 Miss. 154

WIRT ADAMS, STATE REVENUE AGENT v. BOLIVAR COUNTY

Supreme Court of Mississippi

March 15, 1897

March 1897

FROM the circuit court of Bolivar countyHON. F. A. MONTGOMERY Judge.

The appellant, plaintiff, sued the county of Bolivar.The averments of the declaration are sufficiently stated in, or are inferable from, the opinion.The defendant, appellee demurred to the declaration; the court below sustained the demurrer and dismissed the suit.The plaintiff appealed.

Judgment reversed, the demurrer overruled, and the cause remanded.

F. C. Larkin and Jas. R. Yerger, for appellant.

If section 2, chapter 34, of the acts of 1894 means anything at all, it must be construed to mean tat, after the revenue agent has made his investigation and discovered a sum in default, he has the right to collect that sum with or without suit, and where the indebtedness appears by correct open account, then, after the thirty days' notice, given as required, has expired, he has the right to collect, with or without suit, the indebtedness discovered, and which he has notified the official to pay over.If, then, he has this right of collection, it must necessarily follow that when he undertakes to exercise this right by performing some act on his part, showing an effort to collect, that he has earned his compensation whenever payment of the sum claimed by him has been paid into the proper treasury.There is no difference in principle between the construction asked for by us and the principle announced in the case above cited.Miller v. The Delta & Pine Land Co.,74 Miss. 110.

O. G. McGuire and Brame & Alexander, for the appellee.

The very fact that section 2, chapter 34, laws 1894, provides that where an officer is delinquent and his books show the amount due, the revenue agent shall give thirty days' notice, when read in connection with § 4199 of the code of 1892, that the officer shall only be entitled to commissions on the actual amount collected by him, and shall not be entitled to any compensation for investigation, is the strongest argument against the claim now propounded.The object of the law is to give the delinquent officer thirty days, after notice, within which to pay over the amount due by him, and to debar the revenue agent from proceeding against him during that time.

The act of 1894, when construed with the provisions of the code, makes it absolutely certain that the revenue agent is not entitled to any compensation where the books of the delinquent officer show the amount due and he pays over the amount within thirty days after notice or before suit is brought.The revenue agent has no vested right to compensation merely because an officer, at any given time, is delinquent; the only right he acquires by giving the notice in the case of an officer whose delinquency appears by his books, is to bring suit and collect the money and get his commissions, if the amount is not paid within the thirty days, or before suit.

Argued orally by L. Brame, for appellee.

OPINION

WHITFIELD, J.

The declaration avers that the appellant"did, during the months of June, July, and August, 1894, make an investigation of the books, accounts, and vouchers of George P. Melchior, then the sheriff and tax collector of said Bolivar county, and as the result of said investigation, discovered that the said Geo. P. Melchior, tax collector, was indebted to the county of Bolivar, in the sum of $ 7, 409.57, for taxes due said county and collected by said Melchior, as tax collector of said county; that, at the time of the discovery of said indebtedness by appellant, the time fixed by law for the payment of said money into the treasury of said county had long since passed, and said Melchior had failed to make payment of said taxes, . . . and was in default for the same;" that appellant completed his investigation August 4, 1894, and, the indebtedness appearing by correct open account on the books of the said Melchior, as tax collector, he presented a statement thereof to him on August 4, 1894, and notified him to pay the same into the treasury of the county, and that, if that was not done within thirty days, he would claim the right to collect the same, and would proceed legally to enforce such payment, unless payment should be made within the thirty days to the treasurer of the county, or, after that, to appellant; that Melchior did not pay within the thirty days; that on the expiration of the thirty days' notice so given, appellant"proceeded to collect the indebtedness, . . . and placed the same in the hands of his attorneys, with instructions to institute suit therefor, to the first ensuing term of court in said county; and that, while said account was in the hands of his attorneys, and while said attorneys were preparing to institute suit to collect said indebtedness, and before any steps were taken on the part of the authorities of said county to collect the same, the said Melchior, on September 14, 1894, paid the same into the treasury of said county; that at the time said payment was made, his right to collect the same had accrued, and he was proceeding to enforce the collection of said sum of money, . . . and that the payment of said sum of money was the result of his investigation and the performance of his duty, under the law;" and that he had presented a claim for twenty per cent. of the same to the board of supervisors of said county, which it had rejected, Wherefore he sued.The suit is to recover this sum, $ 1, 481.91, not out of the general county funds, but out of the $ 7, 409.57 so paid into the county treasury.

The decision of the case involves the construction of § 4199, code of 1892, andsection 2 of the act of February 7 1894[Laws, p. 29].Compensation for two things, an "investigation made" or a "suit instituted, " is provided for by § 4199, when either results in the collection of the money.The revenue agent is to have no salary, but his compensation is contingent wholly upon the moneys being collected and paid over to the proper authorities.Neither the state nor any governmental subdivision of it is to be liable to him upon any quantum meruit for "fees or expenses incurred in any investigation made or suit instituted, " no matter how large the fees or expenses by him incurred, where no collection is made; and when it is made his compensation is fixed by the statute, to be carved out of the fund so collected--"retained" by him, when paid to him, and when 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, then to be paid to him by the proper authorities out of that fund so collected.He is to be paid, when successful, for both his "expenses and his services."Expenses might be...