Anderson v. Hawks

• Decision Date: 10 April 1893
• Citation: 12 So. 697,70 Miss. 639
• Court: Mississippi Supreme Court
• Parties: A. E. ANDERSON, JR., v. AUGUSTUS HAWKS

12 So. 697

70 Miss. 639

A. E. ANDERSON, JR., v. AUGUSTUS HAWKS

Supreme Court of Mississippi

April 10, 1893

FROM the chancery court of Sunflower county, HON. W. R. TRIGG Chancellor.

The bill in this case was exhibited in January, 1892, by appellee, Hawks, a citizen of Great Britain, against Anderson, sheriff and tax-collector of Sunflower county, to enjoin him from proceeding, by distress or otherwise, to enforce the payment of the taxes on certain land owned by complainant, and especially to enjoin the collection of the ten per centum commission claimed by said tax-collector because of the alleged failure by complainant to pay the taxes before the fifteenth of December. The injunction was issued, and, on final hearing, was made perpetual, and the tax-collector prosecutes this appeal. The further facts necessary for an understanding of the questions passed on by the court are stated in the opinion.

Decree affirmed.

J Holmes Baker and C. C. Moody, for appellant.

Appellee had no right to assume that the tax-collector would accept as payment of taxes, a deposit in the bank at Jackson. Appellee was in no manner prejudiced because the assessment-roll was not placed in the hands of the tax-collector until November 14.

There was ample time for all persons to ascertain and pay the amount of their taxes before the fifteenth of December. The right of the tax-collector to the ten per centum on all taxes collected after December 15 is clear. The case of Railroad Co. v. Love, 69 Miss. 109, is not similar to this case. There the tax was paid to others, who had the same right to receive it as the tax-collector had. The same was true in Wynne v. Railroad Co., 45 Miss. 569. In this case, no one its authorized to receive the taxes except the tax-collector.

It is evident from the language of § 2021, code 1892, that the tax-collector does not receive this per centum as compensation for services. For every act he does towards levying distress, such as advertising, selling and conveying delinquent land and personal property, he is entitled to compensation as fixed in the fee-bill. It is evident therefore, that the ten per centum is a penalty to induce tax-payers to pay promptly, and it is given to the tax-collector as a perquisite of his office. Any other construction would necessarily postpone the collection of taxes on land, and collectors would be powerless to enforce payment.

Nugent & Mc Willie, on the same side.

The language of § 2021 of the code is too plain to admit of construction. The money would come into the collector's hands as certainly as collected. The words "or otherwise" are broad enough to cover taxes collected in any manner, and there is no reason, either from the language or policy of the statute, to narrow its application to money collected by compulsory process. Prior to the tax-sale in March, there is no way the officer can collect taxes on land other than by distress, save through voluntary payments, and to such payments alone can the words "or otherwise" attach. The date from which the right to damages begins is fixed, and the damages accrue on all delinquent taxes. While it is true, as held in Wynne v. Railroad Co., 45 Miss. 569, that a sheriff is not entitled to commissions where the defendant pays a judgment to plaintiff, it is there said that the sheriff would be entitled to his commission if the money was received by him under authority of the execution. The assessment roll in the hands of the tax-collector is as good a warrant for collection as the execution in the hands of the sheriff.

In Railroad Co. v. Love, 69 Miss. 109, the intimation is that the collector would be entitled to his commission if the taxes had been paid to him.

The ten per centum is as much a penalty upon the delinquent as a compensation to the officer, and is imposed to hasten payment. Cooley on Taxation, 309. It is just that the officer shall have extra compensation in such cases, since he is compelled to keep open his office and keep the tax-books after the time of payment has elapsed, solely to accommodate delinquents. In analogy with this view, the auditor is allowed, by § 3805 of the code, commission on taxes paid by non-residents.

The words "or otherwise" cannot be construed to refer only to proceedings ejusdem generis. There is here no other proceeding the appellant can resort to. Even the remedy by distress is ineffectual, as the appellee has no personal property.

The words "or otherwise" have been variously construed according to the manner of their employment. For cases where these words are not construed as referring to things of the same kind as those enumerated, see 31 Ch. D. (Eng.), 638; 8 Ib., 148; 2 Ib., 251; 4 Ib., 395; 2 Ib., 431; 4 Ex. D. (Eng.), 317; 44 L. R., 19; 21 Q. B. D., 246; Dwarris on Stat., 673; Suth. on Stat. Con., §§ 268-282. To deny any word or phrase its known or natural meaning in any instance, the court ought to be quite sure that it is following the legislative intention. Endlich on Int. Stat., § 34. Under a statute authorizing a corporation to take "by direct purchase or otherwise," it was held that the words "or otherwise" were broad enough to include every mode of acquiring real estate. 23 N.Y. 388. See 2 Atkins (Eng.), 601.

The construction contended for has been the practical construction of the section by officers of the revenue department and the public for about twelve years. It would seem that if this were erroneous, it would have brought about a different expression of the legislative intent. Long and general usage may clear away ambiguities and have a potent influence in the interpretation of statutes. Chrisman v. Brookhaven, ante, p. 477; Plummer v. Plummer, 37 Miss. 185; Suth. on Stat. Con., §§ 137, 308, 309; Endlich on Int. Stat., §§ 351-368; 5 Crauch, 22; 1 La. Ann., 419; 21 How., 35; 17 Mass. 122; 5 McLean, 9.

The fact that the collector is given separate compensation for each step taken in making the collection, is persuasive that the ten per centum is not compensation for services. His services are otherwise compensated.

J. L. McCaskill, for appellee.

1. It is not contended that payment into bank was a technical tender, but it was a substantial compliance with the invariable custom of appellant in receiving taxes. The money was in the bank to the credit of the collector before the fifteenth of December. In equity and fair dealing, appellant ought to be bound by this payment.

2. The ten per centum is not a penalty on the tax-payer, but is compensation to the collector for extra services in collecting by distress or otherwise. To entitle him to this compensation, he must be more than simply a receiver of taxes. It is not usual for the legislature to give penalties entirely to an officer. They are usually divided with the school or other public funds. It would have been easy for the legislature to have provided for damages on all taxes collected or paid after December 15, but the statute does not so read. Railroad Co. v. Love, 69 Miss. 109. I deny that it has been the custom of tax-collectors to collect this per centum. It is an exception where it is done.

The words "or otherwise" must be construed in connection with the whole section. Following the word distress, they must be construed as referring to proceedings ejusdem generis. Anderson's Law Dictionary, 394.

Argued orally by J. L. McCaskill for appell...