Miller v. White

• Decision Date: 17 March 1930
• Docket Number: 28698
• Citation: 126 So. 833,157 Miss. 114
• Court: Mississippi Supreme Court
• Parties: MILLER, STATE TAX COLLECTOR, v. WHITE, AUDITOR PUBLIC ACCOUNTS

126 So. 833

157 Miss. 114

MILLER, STATE TAX COLLECTOR, v. WHITE, AUDITOR PUBLIC ACCOUNTS

No. 28698

Supreme Court of Mississippi

March 17, 1930

Division B

1 STATUTES. Statutes, requiring taxes and other moneys collected by tax collector and others, to be paid to state treasurer, must be construed together (Laws Ex. Sess. 1928 chapters 30, 84). Laws Extra Session 1928, chapter 30 requiring all taxes, fees, and penalties collected in name of state to be paid direct to treasurer, and all fees and commissions due state officers to be paid such officers by state treasurer, and chapter 84, requiring state officials forthwith to pay into state treasury moneys collected and belonging to state or subdivisions, are to be construed together, since they treat of same subjectmatter in part.

2. STATES. It is mandatory on state auditor to honor state tax collector's requisitions against commission fund for expenses and salaries (Laws 1924, chapter 330; Laws 1926, chapter 286, as amended by Laws Ex. Sess. 1928, chapter 71; Laws Ex. Sess. 1928, chapters 30, 84).

Under Laws 1924, chapter 330, and Laws 1926, chapter 286, as amended by Laws Ex. Sess. 1928, chapter 71, it is mandatory on state auditor to honor state tax collector's requisitions against twenty per cent commission fund to pay expenses and salaries of his office, to full amount thereof if necessary, since Laws Ex. Sess. 1928, chapters 30, 84, do not authorize state auditor to act in quasi-Judicial capacity in passing on such requisitions.

3. TAXATION. State tax collector is only allowed twenty per cent of all public funds collected, whether belonging to state or to political subdivisions, for expenses and salaries (Laws 1924, chapter 330; Laws 1926, chapter 286, as amended by Laws Ex. Sess. 1928, chapter 71; Laws Ex. Sess. 1928, chapter 30).

Under Laws 1924, chapter 330, relating to twenty per cent commission allowed revenue agent, and requiring balance of commission \not paid out for expenses of office to be paid into state treasury, and Laws 1926, chapter 286, abolishing office of state revenue agent and creating office of state tax collector, as amended by Laws Ex. Sess. 1928, chapter 71, and under Laws Ex. Sess. 1928, chapter 30, requiring taxes and other moneys collected to be paid direct to treasurer, except taxes collected by Attorney-General and tax collector belonging to counties and other political subdivisions, state tax collector is only allowed twenty per cent of all public funds collected, regardless of whether they belong to state or any of its political subdivisions, out of which to pay expenses of his office, and his own maximum salary and those of his deputies, as fixed by law.

HON. W. H. POTTER, Judge.

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

Petition by W. J. Miller, state tax collector, against Carl C. White, auditor public accounts, for writ of mandamus, requiring respondent to honor petitioner's requisitions for commissions and expenses of his office as state tax collector, and to issue warrants therefor on the state treasurer. From the judgment, petitioner appeals. Reversed and remanded.

Judgment reversed and cause remanded.

J. H. Sumrall, of Jackson, for appellant.

Statutes must receive that construction which takes into view the evil they seek to remedy, and the remedy sought to be applied.

Adams v. Bolivar County, 75 Miss. 154.

Under the statute, the revenue agent is entitled to recover for the state eighty per cent of the amount due by the defaulting officer, and for himself twenty per cent of the amount. The state has no interest in his commission of twenty per cent.

Miller v. Henry, 139 Miss. 651.

The law regulating the compensation of the office of state tax collector has not been changed in any particular, so as to render the established construction improper. There is no provision in any way affecting the right of the state tax collector to retain control of the commissions which he is entitled to receive for making any collection, nor disturbing the discretion given him for properly disbursing and accounting for the commissions collected by him.

Chapters 30, and 84, Laws Ex. Session, 1928.

If the construction placed upon chapter 30, Laws of Ex. Session, 1928, by the auditor, which would deprive the state tax collector, his employees and deputies of these commissions, after services are performed, is correct, then said law would violate the constitutional protection against the impairment of contracts, under the holding of the Supreme Court of the United States, in the case of State of Mississippi, for the Use of Robertson v. W. J. Miller et al., 276 U.S. 174, 72 L.Ed. 517.

J. A. Lauderdale, Assistant Attorney-General, for appellee.

Mandamus will not lie where the petitioner has a plain, adequate and speedy remedy at law.

Section 2709, Hemingway's Code of 1927; McHenry v. State, 911 Miss. 562, 44 So. 831, 16 L.R.A. (N.S.) 1062; Carroll v. Tishomingo County, 28 Miss. 38; Beaman v. Leake County, 42 Miss. 237; Board of Education v. West Point, 50 Miss. 638; Board of Supervisors v. Lee, 147 Miss. 99.

If, as alleged by the state tax collector, the auditor is improperly withholding money from him, then under the provisions of section 7057, chapter 71, Extraordinary Session 1928, the state tax collector is fully authorized to sue the auditor on his bond and recover such funds.

Gulf Export Company v. State, 112 Miss. 452, text 458; Hall v. State, 79 Miss. 38, 29 So. 994; State v. Dinkins, 77 Miss. 874, 27 So. 832.

This statute evidently clothes the auditor with a discretion which he must exercise in the issuance of each warrant. The law is well settled that mandamus will not lie to control the discretion of an officer.

Pearl River Co. v. Lacy Lumber Co., 128 Miss. 885; Board of Supervisors v. Lee, 147 Miss. 99; Vicksburg v. Rainwater, 47 Miss. 547; Board of Education v. West Point, 50 Miss. 638; Attala County v. Grant, 9 S. & M. 77; Swann v. Gray, 44 Miss. 393.

It is necessary that the petition for mandamus allege that the state tax collector is not indebted to the state before the writ could issue.

Bogan v. Holder, 76 Miss. 597.

It is not alleged that the public interests are involved, and the allegations in the petition do not necessarily imply that the public interests are involved. Therefore, the petition will not lie.

Sunflower County v. State, 134 Miss. 180.

The petition alleges that the funds in question were paid into the state treasury, but does not allege that they were paid into any special fund as contended in brief for appellant, but simply that they were paid into the state treasury. This being true, the auditor would not be authorized to issue a warrant thereon unless authorized to do so by an appropriation of the Legislature.

Section 3740, Hemingway's Code of 1927; Section 63, of the State Constitution; Colbert v. State, 86 Miss. 769.

OPINION

Anderson, J.

Appellant filed his petition against appellee in the circuit court of Hinds county, praying for a writ of mandamus, requiring appellee to honor appellant's requisitions for the commissions and expenses of his office as state tax collector, and to issue warrants therefor on the state treasurer.

Appellee demurred to the petition, setting up several grounds, which, taken together, mean that appellee claims that there is no law authorizing appellee to honor appellant's requisitions for the commissions and expenses of his office, and to issue to appellee warrants on the state treasurer therefor.

Appellant's petition for mandamus is rather vague and indefinite. As we construe it, we get from it the following grounds upon which the writ was sought. Under the law, neither appellant nor his office force or deputies, are paid salaries out of the state treasury. They are all compensated for their services out of the twenty per cent commissions on collections of public revenues made through the office. All such collections, including the twenty per cent commissions, are by appellant paid into the state treasury; therefore, in order for appellant and his deputies to be compensated for their services out of the twenty per cent commissions on such collections, it is necessary that appellant in some manner be permitted to withdraw from the state treasury a sufficiency of such funds for that purpose. From time to time appellant has made requisition on appellee for warrants on the state treasurer, out of the twenty per cent commission fund, for that purpose, which requisitions appellee has refused to honor.

After appellee's refusal to honor such requisitions, appellant claimed the right to withdraw, and demanded of appellee that he issue his warrant on the state treasurer for the entire twenty per cent commission fund, paid by appellee into the state treasury, to enable appellee himself to take out of such fund a sufficiency to pay the expenses of his office, and to compensate himself and his deputies for their services in making the collection of public funds, out of which the twenty per cent was set aside as a special deposit in the state treasury.

Prior to the adoption of chapter 330 of the Laws of 1924, the state revenue agent received twenty per cent of all public funds collected by his office, out of which he paid his deputies and office force, retaining the balance for his services. That act provides that out of the twenty per cent commissions allowed by law, the revenue agent shall pay all the expenses incident to the discharge of the duties of his office, and all attorney's fees, and retain the sum of five thousand dollars per annum for his salary; the compensation of his deputies to be paid out of the amount collected, as a result of their services, not to exceed five thousand...