Garrett v. Robertson

• Decision Date: 24 November 1919
• Docket Number: 20856
• Citation: Garrett v. Robertson, 120 Miss. 731, 83 So. 177 (Miss. 1919)
• Court: Mississippi Supreme Court
• Parties: GARRETT, TAX COLLECTOR, v. ROBERTSON, STATE REVENUE AGENT

83 So. 177

120 Miss. 731

GARRETT, TAX COLLECTOR, v. ROBERTSON, STATE REVENUE AGENT

No. 20856

Supreme Court of Mississippi

November 24, 1919

TAXATION.Right of revenue agent to twenty per cent of taxes collected by suit.

Section 4738,Code 1906(Hemingway's Code, section 7056), makes it the duty of the state revenue agent to proceed by suit in the proper court on past due and unpaid taxes of any kind and where, as a direct result of the activity of the revenue agent and the institution of two suits, two banks owing past due taxes under an assessment of the board of supervisors paid the sheriff and tax collector of the county the full amount of the assessments, the revenue agent is entitled to recover from the tax collector twenty per cent of the amount paid by such banks.In such case it is not necessary that the revenue agent should first present his claim to the board of supervisors since his commission on such taxes so collected is not a trust fund belonging to the county, but funds belonging to the revenue agent, merely held by the sheriff.

HON. H H. ELMORE, Judge.

APPEAL from the circuit court of Leflore county, HON. H. H. ELMORE Judge.

Suit by Stokes V. Robertson, state revenue agent, against T. C Garrett, sheriff and tax collector of Leflore county.From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Gardner, McBee & Gardner, for appellant.

We have just received, and read with much interest, the reply brief of appellee, and note that counsel say that the assessor proceeded under section 4277 of the Code of 1906, at the instance of the board of supervisors, to assess these banks for property that had escaped taxation for the year 1916.

There is nothing in the record that we have seen that shows or even tends to show, that this action was taken at the instance of the board of supervisors; but, for the sake of argument, assume it was, we still insist that appellant should not be prejudiced in any way by the action of the board of supervisors in any way trying to protect the interests of the county.

In its last analysis, the facts in this case show that, after this court, in response to the suggestion of error said: "The judgment of the lower court and the affirmance thereof by this court, in no way precludes the tax collector from collecting taxes assessed at the regular September meeting of the board above referred to."This second suit was brought by the revenue agent against these banks on his own volition, and before any effort had been made, as the record shows, by the tax collector, to collect these taxes, which this court held could be collected by the tax collector for the assessment made at the September meeting.

We therefore say that the action of the revenue agent in bringing this second suit before any effort was made, or could be made, to collect the taxes under the assessment made at the September meeting, was unnecessary, uncalled for, and assuredly the county should not be held responsible for any fees on account of this second suit.

The answer to this, of course, will be that the attorney for the banks refused to pay unless the revenue agent consented.We submit that it was not within the power of the attorney for the banks, nor was it in the power of the revenue agent, to bring about a settlement of the taxes and charge the county (for the fees collected will have to come out of the county) for the collection of taxes that should have been collected by the tax collector, under what this court held under the suggestion of error, was a valid assessment.

This court will bear in mind that after the opinion was rendered holding that the assessment at the adjourned meeting of the board was void, by reason of the board not giving notice of its meeting, that the assessor gave the notice referred to under section 4277, as required by law, to collect the taxes for the year 1916, upon the idea that the property of the banks had escaped taxation for that year.Before any definite action was taken by the board, this court responded to the suggestion of error, and held that the September assessment was a valid one, and that the tax collector could collect the taxes based on that assessment.After this, and while this notice from the assessor to these banks was pending, the revenue agent brought this second suit, wholly without any authority, to collect taxes, the collection of which, had never been attempted by the tax collector, the duly authorized officer, required by law to collect these taxes.

We submit that for the revenue agent to bring this suit and then collect fees for his attempted collection, would permit him to usurp the duties and powers of the tax collector.We confidently submit that no suit should have been brought, or could have been brought by the revenue agent, for which any fee could have reasonably been charged, until after an honest effort had been made by the tax collector to collect these taxes, which the testimony shows was never attempted.

Claim should have been presented to board of supervisors.Counsel for appellees seem to rely upon four cases cited by them, which were decided by this court, to wit: Tuttle v. Everett,51 Miss. 27, 24 Am. Rep. 622;Vicksburg v. Butler,56 Miss. 72;Huntley v. Bank of Winona,69 Miss. 633;Zemurray v. Bouldin,87 Miss. 583, as authority for the right to bring suit against the tax collector in this case instead of the county.

The four cases relied upon are not in point at all, and do not sustain their contention.By reference to these cases it will be found in each case, the tax collector collected an illegal tax, and in nearly every case, the payment was made under protest, which gave the tax collector notice that it was claimed he was wrongfully collecting a tax, and in every case as we recall, the court held that the tax was illegally collected, and therefore being illegally collected, the taxes did not belong to the county, and the suit was legally brought against the tax collector.

In this case, there was a valid assessment, and the taxes collected were legally due the county, the state and levee board.In other words, not one cent, so far as the testimony shows, was improperly charged or collected from the banks; that being the case, this money belonged to the county, the state and levee board under the assessments, which were in the hands of the tax collector and on which he was charged by the state, county and levee board for the taxes collected.

The fact that the tax collector may have settled with the revenue agent for his fees for the state and levee board, cannot prejudice the interests of Leflore county.The contention of appellant is that this fund in his hands is a fund that belongs to Leflore county; that he is charged by Leflore county with it that he is expected to settle with Leflore county and under sections 4350,4351and4352 of the Code of 1906, he is not entitled to any credit, unless it can be shown that these amounts cannot be collected on account of the insolvency of the banks.

We again assert, that under section 4748, appellee is not entitled to any remuneration, for he has never collected nor paid over anything, as required by law, in addition to the fact that he has never presented his claim to the board of supervisors for allowance, as he should have done, before he would have been authorized to bring any suit.

Monroe McClurg, for appellee.

The appellant predicates his defense upon the false theories that it was incumbent upon the revenue agent to deal with the board of supervisors, and that because this court, on the suggestion of error, said in explanation of its opinion in the main case, 115 Miss. 840, that the tax collector was not precluded from collecting the taxes assessed at the September, 1916, meeting.

The state revenue agent had authority, and the sole authority, to sue for the delinquent taxes in the first instance.It was his duty to do so, especially on being notified by the county tax collector, appellant, that the banks had positively refused to pay the taxes; nor is there any law that required him to apply to the board of supervisors to bring prosecute to judgment and collect the taxes and the payment of the amount collected for the county, after deducting his commissions, into the county treasury.The tax collector was not precluded then from collecting the full amount demanded except by the unequivocal refusal of the banks to pay a cent of it.

So, it may be conceded for the sake of argument, that after this court was compelled to eliminate the amount of the raise in the assessment by the state tax commission of about three thousand dollars because of the blundering carelessness of the board of supervisors in not publishing notice of its special October, 1916, meeting, the tax collector was not precluded from collecting the taxes assessed at the regular September meeting, 1916, except that the banks again positively refused to pay them.Then, it was the duty of the state revenue agent to sue for that September assessment, and he alone should do it, and he did so, and upon that suit a settlement was forced and the full amount of the taxes paid.True, it was not handed physically over to the revenue agent or his attorney in person, but as a mere matter of convenience, and to expedite the settlement by saving the tediousness and trouble of red tape proceedings the attorney for the revenue agent and the attorneys for the banks agreed that the banks might pay the money to the county tax collector.Notwithstanding that agreement was in writing and the tax collector given a copy, the attorney for the banks actually required the attorney for the revenue agent to be personally present and consent to...