Miller v. Coahoma County
| Decision Date | 12 May 1930 |
| Docket Number | 28407 |
| Citation | 157 Miss. 404,128 So. 348 |
| Court | Mississippi Supreme Court |
| Parties | MILLER, STATE TAX COLLECTOR v. COAHOMA COUNTY |
1 TAXATION. State tax collector cannot maintain suit against county to recover amount due city for ad valorem, taxes collected (Hemingway's Code 1927, section 9115).
Laws 1926, chapter 286, section 2, Hemingway's Code 1927 section 9115, provides that state tax collector shall have power to proceed by suit against all Persons, corporations companies, and associations of persons for all past-due and unpaid taxes, but suit against county for money derived from collection of taxes is not a suit for past-due and unpaid taxes.
2. TAXATION.
Statutes requiring state tax collector to sue for money improperly withheld by fiscal officers or depositories did not confer right to maintain suit for city against county to recover taxes collected (Hemingway's Code 1927, sections 9116, 9131).
APPEAL from circuit court of Coahoma county, Second district HON. W. A. ALCORN, JR., Judge.
Action by W. J. Miller, state tax collector, against Coahoma county. From a judgment dismissing the suit, plaintiff appeals. Affirmed.
Judgment affirmed.
W. C. Roberts and Walter Sillers, Jr., both of Rosedale, and E. W. Smith, of Clarksdale, for appellant.
Chapter 286 of the Laws of 1926, changing the name of the officer from state revenue agent to state tax collector and somewhat abridging his authority did not intend to nor did it in fact deprive the state tax collector of the authority to sue on behalf of a municipality against a county, for the purpose of compelling the county to pay to the municipality taxes collected by the county on behalf of the municipality and unlawfully withheld.
Robertson v. Monroe County, 118 Miss. 520; Secs. 7055 and 7068 of Hemingway's Code 1917; Secs. 9113, 9137, Hemingway's Code of 1927; Robertson v. Monroe County, 118 Miss. 541.
This suit is maintainable under section 9116, Hemingway's Code 1927, making it the duty of the state tax collector to investigate the books, accounts and vouchers of all fiscal officers and depositories of the state and of every county, municipality and levee board and taxing district of every kind, and to sue for, collect and pay over all money improperly withheld by such fiscal officer or depository.
Section 9116, Hemingway's Code 1927.
J. M. Talbot and Roberson & Cook, all of Clarksdale, for appellee.
The state tax collector has only such powers as are given to that officer by the legislature. No suit not authorized by the statute to be brought by the state tax collector can be maintained by him.
State v. Taylor, 68 Miss. 730; McBride v. State, 70 Miss. 716; Robertson, State Revenue Agent, v. Thomas, 118 Miss. 423, 79 So. 289; Robertson v. Monroe County, 118 Miss. 520, 79 So. 184; Robertson v. Monroe County, 118 Miss. 543, 78 So. 187.
The case of Robertson, State Revenue Agent, v. Monroe County, 118 Miss. 542, 79 So. 187, is in principle, identical with the facts in the present case, and the power of the state tax collector to maintain the present suit would be unquestioned except for the fact that, since the decision of that case, another statute has been enacted which takes away, from the state tax collector, the very power which enabled the state revenue agent to maintain the suit against Monroe county on behalf of the cities of Aberdeen and Amory.
Hemingway's Code of 1927 relates to the duties of the state tax collector to collect from fiscal officers or depositories. The words fiscal officer, when occurring in this act, shall be held to mean an officer having the custody of public money or securities owned by the public.
Section 6, chapter 286, Laws of 1928.
Argued orally by Lake Roberson and J. M. Talbot, for appellee.
W. J. Miller, as state tax collector, filed this suit in the circuit court of Coahoma county against the county, seeking to recover for the use and benefit of the city of Clarksdale, Mississippi, the sum of thirty-five thousand one hundred forty-two dollars and twenty-one cents, alleged to be due the said city on account of ad valorem taxes collected by the sheriff and tax collector of Coahoma county for the years 1925, 1926, and 1927, and paid into the county treasury. The declaration alleged that, in pursuance of its authority in such case made and provided by law, the county of Coahoma levied an ad valorem road tax on property lying wholly within the municipal limits of the city of Clarksdale for the years 1925, 1926, and 1927, and, as a result of these levies, collected the sum of seventy thousand two hundred eighty-four dollars and forty-two cents in taxes; that by virtue of sections 8409, 8420, and 8427, Hemingway's 1927 Code, the said county should have rendered to the city of Clarksdale fifty per cent of the taxes so collected, but had refused so to do after proper legal demand; that the streets of the city of Clarksdale are worked at the expense of said municipality under and by virtue of municipal authority, and that, as in such case made and provided, the said state tax collector served due notice and demand on the county to forthwith pay to the city of Clarksdale the sum so unlawfully withheld from it.
To this declaration a demurrer was filed on behalf of the county assigning several grounds, one of which challenged the right and authority of the state tax collector to institute and maintain the suit. The court below held that the state tax collector was without authority of law to bring and maintain the suit, and sustained the demurrer, and, the plaintiff declining to plead further, the suit was dismissed; and from the final judgment entered, this appeal was prosecuted.
The sole question presented for decision by this record is whether or not the state tax collector has authority to institute and maintain the suit. It is conceded that the state tax collector has only such powers and authority as are conferred upon that officer by statute, and that his authority to institute and maintain this suit must be found in chapter 286, Laws of 1926, which created the office of state tax collector, and fixed and defined the powers and duties of the office. Prior to the enactment of the said chapter 286, Laws of 1926, by virtue of which the office of state revenue agent was abolished and the office of state tax collector created and substituted therefor, the authority of the revenue agent to maintain suits of this character was upheld and established by numerous decisions of this court, and particularly by the cases of Robertson v. Monroe County, 118 Miss. 520, 79 So. 184, and Robertson v. Monroe Co., 118 Miss. 541, 79 So. 187; and an analysis of these two cases is important to determine the exact provision of the statute then in force, which conferred upon the state revenue agent the power to maintain such suits. In the case reported in 118 Miss. 520, 79 So. 184, there was involved the right of the revenue agent to sue a county for an accounting and for the proper disposal of the income from sixteenth section lands, and it was held that under section 4805, Code 1906, section 3375, Hemingway's 1927 Code, the state could maintain such a suit; and, therefore, under sections 4738, 4739, Code 1906, sections 7056, 7057, Hemingway's 1917 Code, providing that the state revenue agent may sue persons, etc., and shall have a right of action, and may sue in all cases where the state, or any county, municipality, or levee board has a right of action, or may sue, the state revenue agent could maintain the suit. The parts of sections 4738, 4739, Code 1906 (sections 7056, 7057, Hemingway's 1917 Code), which confer upon the revenue agent the power to sue in any case, read as follows:
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