Coker v. Wilkinson

• Citation: 142 Miss. 1,106 So. 886
• Decision Date: 08 February 1926
• Docket Number: 25374
• Court: United States State Supreme Court of Mississippi
• Parties: COKER v. WILKINSON. [*]

106 So. 886

142 Miss. 1

COKER v. WILKINSON. ^[*]

No. 25374

Supreme Court of Mississippi

February 8, 1926

Division B

APPEAL from chancery court of Bolivar county, second district, HON S. I. OSBORNE, Special Chancellor.

Suit by J. L. Wilkinson against R. L. Coker. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed.

Clark, Roberts & Hallam, for appellant.

The appellee filed his original bill in this cause, whereby he sought to recover from the appellant all amounts received by the appellant as compensation for collecting taxes and for issuing privilege licenses for the town of Shelby during the years 1923 and 1924. Coker, the defendant, answered the bill and the cause came on for trial, resulting in a decree for the complainant for the sum of one thousand five hundred twenty-four dollars and forty-six cents, with interest thereon at the rate of six per cent per annum from January 5 1925. From this decree Coker appeals.

I. The position assumed by the complainant in the court below was that under section 5903, Hemingway's Code (section 3375 Code of 1906) the marshal of a town in this state is, by virtue of his office, ex officio tax collector of the town and as such entitled to discharge the duties and receive the emoluments of the office of tax collector. The evolution of this statute may be seen by reference to Code 1892, section 2978; Laws 1896, chapter 168; Laws 1904, chapter 156; Code 1906, section 3375; Laws 1910, chapter 201; Hemingway's Code, section 5903.

It is the contention of the appellant, first, that the provision of the statute, which provides that the clerk or marshal may be the tax collector if the mayor and board of aldermen shall so elect, repeals the former provision to the effect that the marshal in towns and villages shall be the tax collector. The two provisions are irreconcilable, as are all of the provisions of the statute; so that it was within the power of the mayor and board of aldermen of the town of Shelby to elect, as they have done, that the clerk of the municipality should be the tax collector.

And, second, if the court should not think this position tenable, that the still later sentence of the statute which provides that "all of the said municipal officers shall be elected by the people"--referring to the officers mentioned in the first clause of the section; viz., the mayor, aldermen, marshal, tax collector, clerk and street commissioner--repeals both of the former provisions, as it is equally true that this provision cannot be reconciled with either that clause of the section which provides that the marshal shall be the tax collector in towns and villages, or the other which provides that the mayor and board of aldermen may elect that either the clerk or the marshal shall be the tax collector.

If the appellant's first position is correct, then the appellant, having been elected as tax collector by the mayor and board of aldermen, was certainly legally entitled to the office and its emoluments and the appellee was not, for he was never at any time elected by the board to the office of tax collector.

If the second position is true, and it was necessary that the tax collector should be elected by the people, then neither the appellant nor the appellee was entitled to the office of tax collector, as neither was elected tax collector by the people of Shelby; but the appellant has as good title to the office as the appellee, neither having any. The appellant was an officer de facto.

Under either of these two views of the statute, the appellee was not entitled to the office any more than any other citizen of Shelby; and, therefore, has no more cause of action against appellant than would any such citizen.

That it is the law that, where two clauses of the same statute present an irreconcilable conflict as here, the latter clause prevails, is held in the case of Gibbons v. Brittenum, 56 Miss. 232.

Construing the statute under consideration in the light of the foregoing must make it clear that that clause of the statute which declares that the marshal shall be the tax collector is in conflict with and repealed by the later provision that the clerk or marshal may be the tax collector in the event the mayor and board so elect; and that both of these provisions are in conflict with and repealed by the still later provision that the tax collector and marshal, with the other officers enumerated shall be elected by the people.

The titles to the various sections of the codes mentioned fully sustain our contention that it was the purpose and intention of the legislature in enacting that amendment upon which we lay particular stress; to-wit, that "all of said municipal officers shall be elected by the people," etc., to include therein all (the act says all) of the municipal officers, including the tax collector, in every municipality in the state. The title of the Act of 1904, by which act this amendment was inserted in the law, expressly so declares in these words, "To provide for the election of clerks, tax collectors and street commissioners of municipalities" (which last word embraces cities, towns and villages) "by the people." Being the last word of the legislature on the subject, passed after the other provisions referred to were enacted, in conflict with such provisions, and speaking a general rule, this provision must be held to repeal the former provisions and to prescribe the only rule that should govern. Gibbons v. Brittenum, 56 Miss. 232; Swann v. Buck, 40 Miss. 308; State ex rel. Knox v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11.

If we are right in either of the foregoing contentions, then the decree of the court below cannot be upheld.

II. The appellee was not entitled to recover because he never qualified as tax collector by taking the oath prescribed by law and the Constitution and executing bond to the municipality as such tax collector; and, therefore, even if he had been entitled to the office of tax collector in the first instance, a vacancy existed in the office of tax collector under chapter 230, Laws of 1917, as amended by chapter 230, Laws of 1924. If a vacancy existed in the office, the complainant was not the tax collector and had no rights in the premises, either to the office or to the emoluments thereof. Under section 268 of the Constitution, all officers elected or appointed to any office in this state shall take the oath there prescribed.

It is nowhere intimated in this record that the appellee took the oath as tax collector. In order to qualify he must take the oath. It is doubtful from this record that he ever took the oath as marshal even. Under section 5828 of Hemingway's Code, it is made the duty of the mayor and board of aldermen "to require bonds with sureties for the performance of duties from all officers and employees." It will be presumed that the mayor and board of aldermen performed this duty, nothing appearing to the contrary. The appellee executed no bond as tax collector. He did not execute a bond as marshal until December, 1923, and this bond was not approved by the mayor and board of aldermen until the first meeting of the board in January, 1924. This bond was conditioned for the faithful performance of the duties of marshal only. The appellant executed a bond as clerk and also a bond in the penalty of three thousand dollars as tax collector and these two bonds were approved at the same time that the bond of the marshal was approved. If the board had not previously fixed the penalty of the bond of the tax collector as it will be presumed to have done, then the act of the board in approving the three thousand dollar bond of the tax collector is tantamount to fixing the penalty in the first instance. The appellee has never offered to take the oath of office as tax collector, and he has never even tendered a bond as tax collector, much less has he had a bond as tax collector approved by the board. He has never even offered to make a bond as tax collector, much less tendered one. Andrews v. Covington, 69 Miss. 740, 746, 747. Section 2992, Code of 1892, expressly declared that the tax collector should give bond, not as marshal but as tax collector; and under section 5917 of Hemingway's Code, all officers authorized by section 5903 "shall take the oath of office and execute bond to the municipality."

A suit on the bond of the marshal, given in view of these provisions of the statute, would not lie because of the failure to perform some duty of the office of tax collector. The duty to collect taxes was not included in the terms of the condition of the bond of the marshal or in the contemplation of the law requiring the bond. Furlong v. State, 58 Miss. 717; Denio v. State, 60 Miss. 949; Fidelity & Guaranty Co. v. Yazoo City, 116 Miss. 358; Robertson v. Sanders, 132 Miss. 848, 96 So. 750. Not having given the bond, the appellee was not entitled to compensation. Com. v. Slifer (Pa.), 64 Am. Dec. 680, 684.

Shands, Elmore & Causey and Lucy Somerville, for appellee.

I. The particular provisions of section 5903, Hemingway's Code, are: "The marshal may be the street commissioner; and in towns and villages he shall be the tax collector, and may be in a city. The street commissioner and clerk may be an alderman, and the clerk or marshal may be the tax collector or assessor, as the mayor and board of aldermen shall so elect."

It is appellant's contention that these two sentences are irreconcilable, and that one or the other must be ignored by the court in construing this section of the code. We submit that no such conflict is apparent, that the two sentences read together and properly interpreted, may each be given its full force and effect. It will be seen that this particular section of the code is...