Miller v. Henry, Ins. Com'r

• Decision Date: 16 March 1925
• Docket Number: 24634
• Citation: 103 So. 203,139 Miss. 651
• Parties: MILLER, STATE REVENUE AGENT, v. HENRY, INS. COM'R, et al. [*]
• Court: Mississippi Supreme Court

103 So. 203

139 Miss. 651

MILLER, STATE REVENUE AGENT, v. HENRY, INS. COM'R, et al. ^[*]

No. 24634

Supreme Court of Mississippi

March 16, 1925

(In Banc.)

1 INTERESTS. State's claim against insurance commissioner for license taxes an "account."

The claim of the state against its insurance commissioner for license taxes collected and not paid into the state treasury he being required by Code 1906, section 2628 (Hemingway's Code, section 5094), to monthly furnish the auditor a detailed statement of the taxes received by him during the previous month, and to pay the same to the treasurer, held to consist of an "account" within Code 1906, section 2678 (Hemingway's Code, section 2075), providing for interest on "accounts;" the term not being limited to a debt arising from contract, but embracing one arising from fiduciary relation.

2 INSURANCE. Insurance commissioner liable for interest on account, though default due to deputy.

That insurance commissioner's failure to pay collected license taxes in to the state treasurer, when required by statute resulted solely from fault of a deputy, does not relieve him from liability for interest; it being allowed on accounts for money overdue, irrespective of good faith.

3 INSURANCE. Insurance commissioner liable for interest only on taxes collected from time settlements were due therefor.

Accounts not bearing interest till due, the insurance commissioner, required by Code 1906, section 2628 (Hemingway's Code, section 5094), to make monthly accountings and settlements for license taxes received during the previous month, is liable for interest only from the time such settlements were due, and that only on collections actually made for the previous month, though there were other taxes which could and should have been collected.

4. STATES. Revenue agent entitled to commission though insurance commissioner paid whole sum sued for into state treasury.

The revenue agent, required by Code 1906, section 4739 (Hemingway's Code, section 7057), to sue for and collect moneys improperly withheld by fiscal officers, and by Code 1906, section 4748 (Hemingway's Code, section 7066), declared entitled to retain as compensation twenty per cent. of all amounts collected and paid over by him, is entitled to recover his commission, though the insurance commissioner, after being sued, paid the whole amount into the state treasury.

MCGOWEN and HOLDEN, JJ., dissenting.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER, Chancellor.

Action by W. J. Miller, state revenue agent, etc., against T. M. Henry, insurance commissioner, and others. From a judgment for less than claimed, plaintiff appeals. Affirmed in part, and reversed in part, and remanded.

Affirmed in part, and reversed in part, and remanded.

H. T. Odom and Stokes V. Robertson, for appellant.

The insurance commissioner paid over certain amounts to the state treasury on March 1, 1923. This could absolve him from liability to the complainant, whose suit for these amounts was filed prior to that time. Adams v. Bolivar County, 75 Miss. 154, 21 So. 608; Garrott v. Robertson, 120 Miss. 731, 83 So. 177; Robertson v. Shelton, 127 Miss. 360, 90 So. 883.

In the above cases our court holds that it is the duty of the parties being sued by the revenue agent, to pay such amounts as are due to the revenue agent, and that in cases where moneys are paid over to other parties after the revenue agent has filed his suit, the revenue agent is entitled to his commissions on said moneys. I, therefore, respectfully insist that there is no escape from liability as to these amounts, and furthermore that the defendant is liable for six per cent interest on these amounts from the time said sums were paid to the state treasurer.

The charges and evidence against Deputy McNair were improperly injected into this case, and seem to have beclouded the issues. As I understand the law, it is wholly immaterial as to whether or not the shortage and irregularities lie at the door of the insurance commissioner himself or his deputy. In either instance, the legal liability of the insurance commissioner is the same. It is no protection to the insurance commissioner to say that McNair got the money, or that McNair, and not he, was guilty of gross neglect in the handling of the affairs of the insurance department. The principal is responsible for all wrongful and negligent acts of his deputy. The rule is stated in 9 Ency. of Law, Second Edition, 390.

Our court spoke of the liability of the circuit clerk for the actions of his deputy in McNutt v. Livingston, 7 S. & M. 641. Again our court in Hemingway v. State, 68 Miss. 371, 8 So. 317, held that a public officer charged with the custody of public moneys and with keeping public records was liable criminally for the acts of his deputy.

The INSURANCE COMMISSIONER IS LIABLE FOR INTEREST AT LEGAL RATE FROM DATE MONEYS WERE DUE STATE. Interest on those items collected by the insurance commissioner prior to the revenue agent's demand and not paid to the state treasurer on the 10th of the month following such collection. Section 5094, Hemingway's Code, section 2628, Code 1906, provided: "The commissioner of insurance and banking shall furnish to the auditor on or before the 10th day of each month a statement in detail of the taxes and licenses received by him under this chapter during the previous month, and shall pay to the treasurer the amount in full of such taxes and licenses."

No authorities are necessary except our interest statute, which is section 2075, Hemingway's Code, section 2678, Code 1906. The foregoing statute fixes the legal rate of interest on all notes, accounts and contracts at six per cent per annum. That the amounts owing by the insurance commissioner to the state and demanded by the revenue agent are accounts within the statute, is clear, and cannot be successfully controverted. The moment the insurance commissioner defaulted in paying over to the state the collections which he had made by virtue of his office, such sums became then and there a debt collectible by suit. The words "accounts and debts" are synonymous and used interchangeably. Counsel for the insurance commissioner did not undertake to argue in the lower court that the amounts sued for were not accounts within the statute. The correct rule as to this proposition is stated in 29 Cyc. 1439, as follows: "If the liability is recognized, a claim against an officer is treated as a private claim accrued."

The insurance commissioner is only a medium, through which funds are collected and paid into the state treasury. Each collection made by the insurance commissioner becomes a debt collectible by suit if not paid over to the state treasury on the 10th of the month following said collection, which the statute says shall be done. This requirement of the statute is mandatory, and when the insurance commissioner retains moneys in his hands after the time designated by the statute for paying same to the state treasury, he is delinquent to the state of Mississippi in this regard.

Furthermore, I think that the insurance commissioner in this case and his bondsman occupy a contractual relation with the state. The official bond of the insurance commissioner in this case is an express contract with the state of Mississippi, guaranteeing the faithful performance of every official duty of the insurance commissioner. In other words, the insurance commissioner and his bondsman solemnly covenanted with the state of Mississippi to do various things pertaining to the official duty of the insurance commissioner. And the most important of all of these duties was to pay over promptly on the tenth of each month all moneys collected by the insurance commissioner by virtue of his office. This being true, it follows that interest could be allowed under the statute because of the express contractual relation.

The rule applicable to the facts in this case is well stated in 22 R. C. L. 507. I next insist that since the money was wrongfully withheld from the state, the law implied a contract on which interest should be allowed. The rule to this effect is stated in 33 C. J. 203.

To the same effect see, Mechem on Public Officers, 911; McPhillips v. McGrath, 23 So. 721; 11 Am. & Eng. Ency. Law, 398, note; Perry, Trusts, sec. 468.

Among the many authorities supporting the foregoing rule, I cite the following: 16 Am. & Eng. Ency. (2 Ed.), 1012; 29 Cyc., 1439, 1456; 1 Sutherland on Damages (4 Ed.), pars. 353, 1132; 11 Dec. Dig. on Insurance, par. 12; 29 Cent. Dig. on Insurance, par. 23; U. S. v. Curtis, 100 U.S. 119, 25 L.Ed. 571; Stern v. People, 102 Ill. 540; Cassedy v. Trustees, 105 Ill. 560; People v. Gosherie (N. Y.), 9 Johns. 71; Havre de Grace v. Fohly, 108 Md. 533.

Counsel for the insurance commissioner argued that interest is a creature of the statute and cannot be allowed unless specifically provided for by statute. On this proposition in the lower court, he relied on Warren v. Klein, 51 Miss. 807.

A further investigation along this line discloses that our court in the recent case of Drainage District v. Sillers et al., 91 So. 693, cited the Klein case, supra, and, in addition thereto, the case of Anderson v. Issaquena County, 75 Miss. 873, 23 So. 310, on the proposition that drainage district was not liable for interest on an attorney's fee. I have no quarrel to make with any of the foregoing decisions. In my judgment they are all sound in principle and in reason. The trouble with these authorities is that none of them are applicable to the question at issue here. They all involve the question of whether or not the sovereign, or any governmental division, would be liable for interest in the absence of an...