Miller v. Delta & Pine Land Co

• Citation: 20 So. 875,74 Miss. 110
• Parties: R. P. MILLER v. DELTA & PINE LAND CO
• Decision Date: 23 November 1896
• Court: United States State Supreme Court of Mississippi

20 So. 875

74 Miss. 110

R. P. MILLER v. DELTA & PINE LAND CO

Supreme Court of Mississippi

November 23, 1896

October 1896

FROM the chancery court of Sunflower county HON. A. H. LONGINO Chancellor.

The facts are stated in the opinion of the court.

Decree reversed and bill dismissed.

Mayes &amp Harris, for the appellant.

We contend, in the first place, that, in case of actual and indisputable delinquency, such as is shown in this cause, the lan guage of the statute is clear and explicit; that for taxes collected by the officer he is entitled to his ten per centum commission, even though he performs no other service than the reception of the money and the receipting therefor. And we contend, in the second place, that if the court shall not adopt this view, then whenever the tax collector, in the discharge of the duty imposed upon him by law, shall have performed any service whatever towards the actual collection he becomes entitled to his commission; and his right to his commission is not postponed until the completion of the service by a perfected collection by adverse process. We claim that the action of the tax collector in this case, by making out the tax list, and placing the same in the hands of the printer, and posting notice at the courthouse door, was such action as entitled him to his commission for money actually received by him. The line must be drawn somewhere and We submit that the safest and best place to draw the line is just where the clock strikes twelve on the night of December 15, because that is the place indicated by the statute. The next best place for the line is just where the tax collector, in case of settled delinquency, begins to bestir himself in the exercise of his ministerial duties to enforce the law.

We observe that counsel for the appellee indulge some criticism of the tax collector in this case, on the idea that his action in making out his tax list of delinquents and handing the same to the paper for publication on January 15, was precipitate and censurable. We deny that. We deny it, in the first place, on the ground that his action was authorized by law, and that no public functionary is to be criticised or censured for doing that which the law authorizes. We deny it, in the second place, on the ground that his action, being authorized by law, was justified further by the ordinary consideration of prudence and discretion. He himself states that he did it in order to guard against the always possible dangers of mistakes and miscarriages; and even in the absence of such a statement, the course adopted by him would be manifestly the wise and prudent course, for the reason that an early advertisement gives opportunity to correct any errors and mistakes; whereas, if the course suggested by counsel as being the only justifiable one to adopt, was pursued (which is to postpone the advertisement until the last three possible weeks before the sale), a typographical error in the advertisement could not be corrected at all.

Baker & Moody, on same side.

In the case of Anderson v. Hawks, 70 Miss. 639-645, in construing § 2021, code 1892, this court say: "The language of the law is that the collector shall be entitled to receive from the delinquent taxpayer ten per centum on all taxes collected after the fifteenth of December, by distress or otherwise. The words 'distress or otherwise' obviously relate to the taxes on which the per centum is to be calculated, and not to the ten per centum only. The collector is entitled to ten per centum on such taxes as shall be collected by him after the fifteenth of December, by distress or otherwise. Keeping in view the fact that the allowance is made as compensation for services, and that delinquent taxes may be collected (1) by distress and sale of personal property (code 1892, § 3802); (2) by sale of land (Ib., §§ 3811-3815); (3) by certifying the assessment to other counties in which the delinquent may have property (Ib., § 3822); (4) by suit (Ib., § 3747); (5) by action on the bond required of transient traders (Ib., § 3871), it is not difficult to discover the meaning of the words 'distress or otherwise, ' which, upon familiar rules, are to be construed as applying to matters ejusdem generis as the preceding particular words, a contrary intention not appearing."

Did appellant, therefore, in this case, perform the labor necessary to entitle him to the ten per centum damages? We think so. He posted the notice of sale at the courthouse door, as the law required, and gave the same to the printer to be advertised in his paper, all of which was done before any tender of the money had been made to appellant. So far as the appellant was concerned, there was nothing more for him to do except sell the land when the day for sale arrived. For making the sale he was allowed additional fees, and if, after advertising the land, the taxes had been paid to him, such collection would be all that the law expected to accomplish by having the same sold, and we see no reason why, under such circumstances, appellant would not be entitled to the additional compensation allowed by law of ten per centum upon the amount thereof.

Counsel for appellant relies upon the case above cited to maintain his position, but we submit that the case at bar and that case are not at all analogous. In that case, Hawks, the taxpayer, was endeavoring all the time to ascertain the amount of his taxes, in order that he might pay the same, but the tax collector did not have the assessment roll at the time the law required it to be in his office, so the taxpayer failed to ascertain the amount thereof, and it was for this reason that he was delinquent at all. In the case at bar, however, appellee not only failed to pay its taxes on or before the fifteenth of December, the time in which the law made it its duty to do so, but it was in default for near thirty days before it made any effort whatever to pay the same, and then, at that time, it wholly disregarded the law as to that in which it should pay its taxes. Again, appellee never made any effort to ascertain from appellant the amount of its taxes, neither did it make any effort to ascertain if a check would be accepted. By such action appellee was not only guilty of negligence, but acted in utter disregard of the plain requirement of the law. It seems to us, therefore, that such action on the part of the appellee is not such as would commend itself to a court of equity. Again, in the above cited case, Anderson, the tax collector, had performed no service whatever by which he could ask the court to allow him the ten per centum damages as compensation therefor. In this suit it is different. Here appellant was not only put to the trouble of listing appellee's lands, but he, in fact, had the same advertised before any money had been tendered to him, and, so far as he was concerned, there was nothing else he could do, as we have stated, but sell the land, for which service he was allowed additional compensation.

Frank Johnston, for appellee.

1. The ten per centum damages is not a penalty, but compensation for the services enumerated in ...