Jefferson Davis County v. Berry

• Decision Date: 18 February 1929
• Docket Number: 27716
• Citation: 120 So. 572,152 Miss. 578
• Court: Mississippi Supreme Court
• Parties: JEFFERSON DAVIS COUNTY v. BERRY, SHERIFF, et al. [*]

120 So. 572

152 Miss. 578

JEFFERSON DAVIS COUNTY v. BERRY, SHERIFF, et al. ^[*]

No. 27716

Supreme Court of Mississippi

February 18, 1929

Division B

1. EQUITY. No part of answer can be considered in case heard on bill and demurrer.

Though demurrer and answer may be filed at same time, or even in the same pleading, nevertheless it yet remains true that, when a case is heard on bill and demurrer, no part of answer can be looked to as regards any fact or facts alleged therein.

2. CONSTITUTIONAL LAW. Prerogative of fixing compensation of public officers belongs to legislative department, unless limited by Constitution.

Except as limited by constitutional provisions, prerogative of fixing compensation of public officers is one that belongs to legislative department, and that power, when exercised whether wisely or unwisely, whether justly or unjustly and discriminatory, does not come within jurisdiction of courts.

3 ATTORNEY-GENERAL. Attorney-general is entitled to fifteen per cent, on amount recovered in tax assessment appeals (Hemingway's Code 1927, sections 61, 2010).

Under Laws 1922, chapter 159 (Hemingway's Code 1927, section 2010), attorney-general is entitled to fifteen per cent, on amount recovered through his efforts in tax assessment appeals in accordance with provisions of Laws 1918, chapter 120 (Hemingway's Code 1927, section 61).

4 ATTORNEY-GENERAL. Attorney-general effecting compromise on tax appeals was entitled to commission only for completed difference in favor of state (Hemingway's Code 1927, sections 61, 2010).

Where attorney-general, after filing appeals from tax assessments in accordance with authority of Laws 1918, chapter 120 (Hemingway's Code 1927, section 61), effected a compromise whereby the tax was increased for years covered by appeal and decreased for years as to which appeals had been taken by taxpayers, he was entitled to commission in accordance with Laws 1922, chapter 159 (Hemingway's Code 1927, section 2010), only for the completed difference in favor of state.

HON. T. P. DALE, Chancellor.

APPEAL from chancery court of Jefferson Davis county, HON. T. P. DALE, Chancellor.

Suit by Jefferson Davis county against R. R. Berry, sheriff, and others. Judgment of dismissal, and complainant appeals. Reversed and remanded.

Reversed and remanded.

Livingston & Milloy, for appellant.

The bill of complainant stated positively that the net gain to the state, county and taxing districts under the settlement amounted to only twelve thousand four hundred fifty-five dollars and fifty-six cents. The attorney-general was not then and is not now willing to accept fifteen per centum on this amount, but insist that he is entitled to fifteen per centum on this amount of taxes raised for the years 1923-24 and should not be required to take into account the reduction of taxes for the years 1926 and 1927. It will be noted by the court that the J. J. Newman Lumber Company was permitted to take appeals as well as others out of time, and of course this could be done only by agreement of all parties and was done in this instance for the purpose of getting a settlement of all the matters mentioned in the bill of complaint, and actually resulted in the reduction of the taxes of Denkman Lumber Company, J. J. Newman Lumber Company, and the other companies named in the bill of complaint for the years 1926 and 1927. There is no question but that the pleadings in this case show the net gain to the state, county and taxing districts amounted only to the sum of twelve thousand four hundred fifty-five dollars and fifty-six cents, and we think and sincerely urge that the attorney-general was only entitled, if to anything, to fifteen per centum on the actual net gain.

Next we contend that the attorney-general was not entitled to a fee of any kind in this case, as the law required him to take tax appeal cases without providing for any fee at all. Chap. 120, Laws 1918, provides that the county attorney, the district attorney, or the attorney-general, if the state, county or municipality be aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village as to the assessment of taxes may, within twenty days, etc., appeal, etc., etc. . . . No provision is made for any commission or fee for county attorney, district attorney or the attorney-general. We cannot find any statute or law which provides any fee for any of these officers to receive a fee in taking appeals in tax cases, and we do not believe that it was contemplated or intended by the legislature that any fee should be paid either of these officers in such appeal cases.

Certainly in tax appeals no action for the recovery of money is sought or contemplated. They are only proceedings to correct the orders and the decision of the boards of supervisors and municipal boards, fixing the valuation of tax assessments upon which tax levies are made. This court so held in Robinson Land & Lumber Co., 126 Miss. 535, 89 So. 160. The trial is simply a substitution of the circuit court for the board of supervisors or municipal boards for valuation purposes. No money is recovered as a result of a favorable judgment on the appeal. If the attorney-general is successful in increasing the valuation of property on the assessment roll, it is not a recovery of money. No judgment or money is sought and none is entered. It is just what it is termed to be, a proceeding to determine the valuation of the property upon which a levy is made for the collection of taxes.

E. C. Sharp, for appellee.

The only question presented in this case is whether or not the attorney-general is entitled to fifteen per cent on the amounts recovered as a result of the appeals prosecuted by him which resulted in an increased valuation and increased collection on the part of the sheriff, no commission being claimed except upon the taxes collected on the increased assessment. By chap. 159, Laws of 1922, the salary of the attorney-general is fixed at three thousand three hundred dollars per annum, and in addition thereto he shall receive fifteen per centum of all sums that he may recover by suit or otherwise. Certainly it cannot be contended that the increased collections were not the result of the activity of the attorney-general and that same were not recovered as a result of suits instituted by the attorney-general, the entire amounts having been collected as a result of the increased assessments for the years 1923 and 1924. The contention of the appellee is that he is entitled to fifteen per centum of the amount that was collected as a result of his efforts. Adams v. Bolivar County, 75 Miss. 154; Miller v. Delta & Pine Land Company, 74 Miss. 110.

There is no merit in the contention raised by the appellant that the net collection to the county was reduced approximately twenty-eight thousand dollars. Had it not been for the appeals taken and prosecuted by the attorney-general no increase in assessment would ever have been made by the board of supervisors, and what amounts would have been collected by the county for the year 1927 could not possibly have been ascertained at the time of the filing of this suit. All of the timber concerns against which appeals were pending were actively engaged in removing timber from the soil, and there is no possible way by which it could have been ascertained how much of the timber would have been removed, or destroyed, prior to February 1, 1927, and for all timber removed, or destroyed, the defendants would have been entitled to a reduction in the assessment for the year 1927. Neither could it be known what the tax levy would have been for the year 1927, as that was not and could not have been made until long after the filing of this suit. The rate could have been either increased or diminished. The Denkman Lumber Company might have been successful, and therefore secured the same reduction that was agreed upon, or possibly a greater one. The other defendants might have instituted proceedings in the Federal court, or other court, and enjoined the collection of the taxes for those companies, or secured a reduction as great, or greater, than that agreed upon, but certainly such uncertainties as existed as to the amount that would have been collected by the county for the years 1926 and 1927 could not be charged against or offset against the commissions earned by the attorney-general in instituting and prosecuting to a successful determination the appeals from the 1923 and 1924 assessments. See Garrett v. Robertson, 120 Miss. 731; Tutt v. Everett, 51 Miss. 27, 24 Am. Rep. 622; Vicksburg v. Butler, 56 Miss. 72; Huntley v. Bank of Winona, 69 Miss. 663, 13 So. 832; Zemurray v. Bouldin, 87 Miss. 583, 40 So. 15; Miller v. Henry, Insurance Commissioner, 139 Miss. 651.

OPINION

GRIFFITH, J.

The original bill in this case was filed by the county of Jefferson Davis, on March 10, 1927, against Rush H. Knox attorney-general, and R. R. Berry, tax collector of said county, and the Bank of Blountville, the county depository, upon which bill an injunction was issued and served. On April 25, 1927, an answer was filed by the attorney-general, and also at the same time a general demurrer, as is allowed by our reformed chancery practice statutes. On April 29, 1927, an amended bill was filed, to which on June 10, 1927, the attorney-general filed a general demurrer and on June 14, 1927, an answer. The attorney-general, on April 25, 1927, had moved to dissolve the injunction on "original bill, demurrer, answer and testimony in open court," but it appears that nothing was done with this motion until the June, 1927, term of court, when an order was made taking the case under advisement, the order reciting that the cause had come on "for hearing upon...