McKenzie v. Adams-Banks Lumber Co.

• Decision Date: 19 May 1930
• Docket Number: 28703
• Court: Mississippi Supreme Court
• Parties: MCKENZIE et al. v. ADAMS-BANKS LUMBER CO

128 So. 334

157 Miss. 482

MCKENZIE et al. v. ADAMS-BANKS LUMBER CO

No. 28703

Supreme Court of Mississippi, Division B

May 19, 1930

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

(Division B.)

1 STATUTES.

Tax laws are to be strictly construed against taxing power.

2 STATUTES.

Statute relating to tax collector's fees and statute relating to refund of taxes improperly collected should be construed together in such manner as to work out consistent scheme (Hemingway's Code 1927, sections 1951, 8229).

3. TAXATION. Where court reduced assessed Valuation on appeal tax collector was entitled to ten per cent penalty only in so far as assessment was legal (Hemingway's Code 1927, sections 1951, 8229).

Code 1906, section 4310 (Hemingway's Code 1927, section 8229), provides that appeal from judgment of board of supervisors in matter of assessment shall not delay collection of taxes due, but that any money improperly collected shall be refunded, and Laws 1920, chapter 294, amended (Laws 1924, chapter 206), Hemingway's Code 1927, section 1951, provides for tax collector's fee of ten per cent on all taxes collected, and provides that no penalty shallattach until thirty days "after legal assessment has been approved."

4. TAXATION.

Where appeal is decided in taxpayer's favor, taxpayer is entitled to refund of taxes illegally collected and also ten per cent penalty collected (Hemingway's Code 1927, sections 1951, 8229).

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W. H. POTTER, Judge.

Action by the Adams-Banks Lumber Company against Floyd McKenzie and others. From a judgment for plaintiff, defendants appeals. Affirmed.

Affirmed.

May, Sanders, McLaurin & Byrd, of Jackson, for appellants.

Under section 6944, Hemingway's Code 1917, the duty rests upon the taxpayer to pay the taxes on the basis of the judgment of the board of supervisors, even when an appeal is perfected and obtained from the county a refund of his taxes in case the appeal is decided in his favor.

When the tax collector was forced to resort to coercive methods to collect the taxes he was entitled to his fees.

Tunica County v. Tate, 78 Miss. 294, 29 So. 74; Darnell v. Johnson, 109 Miss. 570, 68 So. 78; Roberson v. C. & G. R. R. Co., 92 So. 233.

This fee is a part of the emoluments of the collector's fees. It is not a penalty imposed on the taxpayer.

Darnell v. Smith, 115 Miss. 547, 76 So. 547.

Green, Green & Potter, of Jackson, for appellee.

The tax collector is only entitled to ten per cent penalty when the assessment whereunder collection was made is valid.

Section 6944, Hemingway's Code; Robertson, State Revenue Agent, v. Harrison County, 127 Miss. 281, 90 So. 8; Board of Levee Commissioners v. Howze, 149 Miss. 843, 116 So. 92; Pan-American Petroleum Corporation v. Miller, 154 Miss. 565, 122 So. 393; Vicksburg & Meridian R. Co. v. State, 62 Miss. 105; State v. Simmons, 70 Miss. 485, 12 So. 477.

Laws imposing privilege taxes approximate an abridgment of the liberty of the citizen guaranteed to him by the Fourteenth Amendment of the Constitution of the United States, and should receive the strictest construction.

Wilby v. State, 93 Miss. 787, 47 So. 465, 23 L.R.A. (N.S.) 677; State v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137; Sperry & Hutchinson Co. v. Harbison, 123 Miss. 674, 86 So. 455; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Cuevas v. Cuevas, 145 Miss. 456, 110 So. 865; Miller v. Illinois C. R. Co., 146 Miss. 422, 111 So. 558; Board Levee Com'rs v. Howze Mercantile Co., 149 Miss. 843, 116 So. 92; Moore v. Standard Oil Co., 151 Miss. 300, 117 So. 370; Harrison County v. Robertson, 121 Miss. 387, 83 So. 619; 25 R. C. L., sec. 307; Hecht v. Malley, 265 U.S. 156, 68 L.Ed. 949; United States v. Merriman, 263 U.S. 187, 68 L.Ed. 244.

The law looks with hostility on penalties.

Thornton v. Natchez, 88 Miss. 19, 41 So. 498.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Hinds county against appellant, the sheriff, and tax collector of Scott county, and the United States Fidelity & Guaranty Company, surety on his tax collector's bond, to recover the sum of two thousand three hundred four dollars and three cents, alleged to have been illegally collected from the appellee by appellant as a penalty of ten per cent for delinquency by appellee in the payment of its state and county taxes for the year 1924. There was a trial before the judge of the circuit court, sitting as both judge and jury, on agreed facts, which facts were embodied in a written stipulation, signed by the parties, and made part of the record. There was a judgment in favor of appellee in the sum of nine hundred eighty-eight dollars and twelve cents, with six per cent interest thereon from January 1, 1925, aggregating one thousand three hundred forty-nine dollars and seventy-six cents. From that judgment appellant prosecutes this appeal.

The following is deemed a sufficient statement of the case to develop the questions involved: Appellant was the sheriff of Scott county. Appellee owned a large amount of lumber and sawmill machinery in the county; the assessment on which for the year 1924, as approved by the board of supervisors, was fixed at one hundred fifty thousand dollars on the lumber and one hundred eighty thousand dollars on the machinery. After the approval by the board of supervisors, the state tax commission made an order, which the board of supervisors carried out resulting in the assessment of appellee's lumber at three hundred thousand dollars instead of one hundred fifty thousand dollars, and its machinery at three hundred sixty thousand dollars instead of one hundred eighty thousand dollars. When this raise was ordered by the state tax commission, appellee appeared before the board of supervisors and protested against the raise. Nevertheless, the board approved the raise as directed by the state tax commission. From that order of the board appellee appealed to the circuit court, giving the bond provided by the statute in the sum of seventy thousand dollars.

Before the next term of the circuit court, and while this appeal was pending, appellant conceived it to be his duty to collect by distraint of appellee's personal property the state and county taxes based on the increased assessment of appellee's property, so ordered by the state tax commission, and approved by the board of supervisors amounting to twenty-three thousand forty dollars and thirty-six cents. Appellant demanded that sum, and, in addition, ten per cent penalty, making a total of twenty-five thousand three hundred forty-four dollars and thirty-nine cents. In order to prevent its property from being sold for the taxes, appellee paid appellant the amount demanded by the latter, at the time protesting against such payment. Thereafter the circuit court heard appellee's appeal from the action of the board of supervisors in increasing the assessed values of its property; that trial resulting in a judgment in favor of appellee, reducing the assessed values of its property to substantially those sums at which they stood when first approved by the board of supervisors, and before the increase was ordered by the tax commission. The judgment of the circuit court fixed the assessed value of the lumber at one hundred fifty-four thousand four hundred twenty-six dollars, and of the machinery at one hundred ninety-one thousand eight hundred eighty-three dollars and eighty-two cents; and the result of this judgment was that, instead of appellee's taxes amounting to twenty-three thousand forty dollars and thirty-six cents, they only amounted to thirteen thousand one hundred fifty-nine dollars and twelve cents. Appellant thereupon returned to appellee the difference between the two sums, but retained ten per cent of the twenty-three thousand forty dollars and thirty-six cents, claiming that he was entitled so to do under the statute allowing tax collectors ten per cent of all taxes collected by distress. The court allowed appellant's claim as to the amount of taxes appellee was legally due, to-wit, the sum of thirteen thousand one hundred fifty-nine dollars and twelve cents; but denied it as to the difference between that sum and the amount of taxes claimed and collected by appellant by distress. The result was that appellee recovered a judgment against appellant and the surety on his official bond in a sum equal to ten per cent of the...