Boyd v. Coleman

• Decision Date: 07 March 1927
• Docket Number: 26405
• Court: Mississippi Supreme Court
• Parties: BOYD v. COLEMAN, SHERIFF AND TAX COLLECTOR. [*]

111 So. 600

146 Miss. 449

BOYD v. COLEMAN, SHERIFF AND TAX COLLECTOR. ^[*]

No. 26405

Supreme Court of Mississippi

March 7, 1927

Division A

1 LICENSES. Legislature held not to have intended automobile owners to assume risk of arrest for failure to comply with registration laws when impossible (Laws 1924, chapter 116 sections 2, 4, 5, 10, 11, as amended by Laws 1926, chapter 120, sections 1-5, respectively).

Intention of legislature, under Laws 1924, chapter 116, sections 2, 4 5, 10, 11, as amended by Laws 1926, chapter 120, sections 1-5, respectively, relative to registration tax on automobiles, held not to require automobile owners to assume risk of possible arrest and punishment for violation of act as required by section 5, when conditions arose out of practical operation of law which rendered it impossible for owners of vehicles to comply with provisions thereof.

2. STATUTES. Statutes should not be construed to require performance of duties rendered impossible of performance.

The law does, not require doing of an impossible thing, and statutes should not be construed to require performance of duties which are rendered impossible of performance by reason of causes for which person is in no way responsible and powerless to change or remove.

3. LICENSES. Penalty for noncompliance with automobile registration laws cannot be enforced when state was unable to furnish license tag and certificate (Laws 1924, chapter 116, sections 2, 4, 5, 10, 11, as amended by Laws 1926, chapter 120, sections 1-5, respectively).

Where state agents were unable to furnish license tag and certificate of ownership on payment of fee prescribed by Laws 1924, chapter 116, sections 2, 4, 5, 10, 11, as amended by Laws 1926, chapter 120, sections 1-5, respectively, penalty of one hundred per cent prescribed by the act for failure to promptly comply with provisions, cannot be enforced.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Application for mandamus by W. E. Boyd against J. B. Coleman, sheriff and tax collector, to require collection of penalty from petitioner for failure to pay fees and procure license tag and certificate of ownership for automobile. Judgment of dismissal, and petitioner appeals. Affirmed.

Judgment affirmed.

B. F. Worsham, for appellant.

This suit involves the construction and application of chapter 120, Laws of 1926, which is the new automobile license tag and certificate law. The appellant did not pay the privilege and procure the license tag and certificate before the first day of January, 1927, the sheriff claiming that he did not have the tags and certificates to give to the taxpayer until about January 6, 1927, and that he did not then have more than enough tags and certificates to furnish to about half the automobile owners in the county.

The appellant contends that it was the duty of the sheriff to collect, not only from him, but from all automobile owners within his county, the penalty of one hundred per cent, the appellant being interested in this position not only because of the fact that he was anxious to pay the full amount due by him, but also in order that the county and state might be able to collect from all automobile owners in the county and state the amount due by them. Section 4, chapter 120.

The appellant is not only interested in paying whatever amount he is lawfully required to pay under the laws of the land, but under his construction of the law he is subject to the payment of the fine as provided by section 18 whenever he fails or refuses to comply with the requirements of the statute.

We know of no precedent that we might cite which would be of any benefit to the court in determining this issue, but we are content in relying upon the act itself, and its provisions as to the collections of the penalty provided.

Rush H. Knox, Attorney-General, for appellee.

The question is whether or not a taxpayer of Mississippi shall be called upon to perform an impossible thing, and in his failure so to do will be penalized civilly and criminally by the operation of a statute such as the one under review before this court. State v. Gish, 168 Iowa 70 Ann. Cas. 1917B 135. See, also, First Nat'l Bank of Belle Plain v. McConnell, 103 Minn. 340, 14 Am. & Eng. Cas. 396; Litchfield v. County of Webster, 25 L.Ed. 925.

Argued orally by Rush H. Knox, Attorney-General, for the state.

OPINION

COOK, J.

The appellant, W. E. Boyd, filed a petition in the circuit court of Alcorn county, Miss., alleging substantially the following facts: That the petitioner is a resident citizen and taxpayer of said county and state, while the defendant, J. B. Coleman, is the duly elected, qualified, and acting sheriff and tax collector of said county; that petitioner is the owner of a Chevrolet automobile; that by chapter 120, Laws of 1926, it is provided that during the month of December, 1926, the license fees or taxes and registration fees therein provided should be paid in the county where the automobile owner resides; that it is also provided in said act that, if the taxes and fees therein provided for are not paid during the month within which liability therefor accrued, an additional amount of one hundred per cent. of the said taxes and fees should be paid as damages or penalty; and that the tax collector is authorized and required to seize and sell any personal property of any person liable for this tax or penalty in the same manner that he is required by law to seize and sell such property for other delinquent taxes.

The petition further alleged that petitioner did not pay this registration and license fee during the month of December, 1926, but that on the 21st day of January, 1927, he applied to the sheriff and tax collector for the proper license tag and certificate of ownership; that the sheriff and tax collector demanded of him the regular cost or price of said license tag and certificate of ownership, and failed and refused to demand anything of him, as required by law, by way of a penalty for the failure and refusal of petitioner to procure his license for the year 1927 in the month of December, 1926; that it was the duty of said sheriff and tax collector to collect from petitioner, not only the regular fees or taxes prescribed by law for the year 1927, but it was his duty to also collect a corresponding amount as a penalty for his failure and refusal to pay said fees and procure the proper license tag and certificate of ownership during the month of December, 1926, as provided by law.

Petitioner alleged that he is a citizen of the state of Mississippi, and, as such, vitally interested in the enforcement of the laws of the state, and particularly in the laws having to do with the public revenue thereof; that he was advised that the sheriff and tax collector was failing and refusing to collect said penalty from any automobile owners, although all of said automobile owners had incurred the penalty; that the said sheriff and tax collector claimed that no penalty had accrued to the state, and consequently, as a result of this action of the sheriff and tax collector, the state was being deprived of a large amount of revenue rightfully belonging to it.

Petitioner further alleged that, when he tendered to the sheriff and tax collector the license and registration fees, as fixed by law, he also tendered a corresponding amount as the penalty of one hundred per cent. provided by law for his failure to pay such fees or taxes during the month of December, 1926, but that the said sheriff and tax collector failed and refused to accept the said penalty, claiming that no penalty had accrued to the state on account of the petitioner's failure to pay said fees or taxes in the month of December, 1926, as required by law.

The petitioner further alleged that, by reason of the said conduct of the sheriff and tax collector, the state of Mississippi was losing, and would continue to lose, a large sum of money that rightfully belonged to it; that, unless the petitioner procures said license tags and certificate of ownership, as provided in said act, and displays the same on his car, as required by said act, paying therefor the proper privilege and penalty, he may be subjected to arrest and punishment therefor, and be held liable for the fine provided in such cases.

The prayer of the petition was for the issuance of a writ of mandamus directing and commanding the said sheriff and tax collector to collect from the petitioner the penalty provided by the act for his failure to pay the fees and procure the proper license tag and certificate of ownership during the month of December, 1926, in addition to the regular fees and taxes prescribed by the Act of 1926.

To this petition, the defendant interposed the following plea:

"Comes now J. B. Coleman, the regularly elected, qualified, and acting sheriff and tax collector in and for Alcorn county, of the state of Mississippi, who is the defendant in this suit and for plea in this behalf, says and admits that he is and was on January 21, 1927, and for about three years prior thereto, the said sheriff and tax collector of said county and state aforesaid, and that, by virtue of his office, it is and has been his duty under the law to collect a road and bridge privilege license due by the owners of motor vehicles in Alcorn county, Miss., and by virtue of the terms of chapter 120, Laws of 1926, and more especially by section 2 of said act it is the duty of the said sheriff and tax collector, during the month of December of each year, to collect from all owners of motor vehicles the tax prescribed by said chapter; said section providing, among other things that any person becoming liable for such tax after the 1st day of January...