Miller v. White

• Citation: 160 Miss. 32,133 So. 144
• Decision Date: 23 March 1931
• Docket Number: 29115
• Court: United States State Supreme Court of Mississippi
• Parties: MILLER, STATE TAX COLLECTOR, v. WHITE, AUDITOR OF PUBLIC ACCOUNTS

133 So. 144

160 Miss. 32

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

No. 29115

Supreme Court of Mississippi

March 23, 1931

Division B

1 EQUITY. Suit by state tax collector against auditor of public accounts to determine right to commissions held within jurisdiction of equity on ground it would prevent multiplicity of suits.

Equity has jurisdiction to entertain a bill on the sole ground that it would prevent a multiplicity of suits in a case where the compensation of the state tax collector is involved in settlement with numerous county tax collectors and the auditor of public accounts in which the right to compensation of the state tax collector is in litigation. Separate suits as to each of the settlements would constitute a needless number of suits, all of which may be settled in one suit in chancery.

2. APPEAL AND ERROR. Questions of law presented by demurrer to bill will not be determined by supreme court, where chancellor merely dismissed bill.

The supreme court will not decide questions of law presented by a demurrer, where the chancellor has not decided them, but has dismissed the bill for want of jurisdiction. On reversing the case, the court will remand the demurrer to be decided by the chancellor.

HON. V J. STRICKLER, Chancellor.

APPEAL from chancery court of Hinds county, First district, HON. V J. STRICKLER, Chancellor.

Suit by W. J. Miller, State Tax Collector, against C. C. White, Auditor of Public Accounts. From a judgment dismissing the bill, complainant appeals. Reversed, and cause remanded, with directions.

Reversed and remanded.

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

The institution and maintenance of legal proceedings, otherwise proper and adapted to the end in view, may work injury by reason of the very number of suits involved. Jurisdiction to avert such an evil has been declared 'co-eval with equity proceedings,' a favorite object with courts of equity. Its exercise has been declared to serve both public and private interests, and to be on the increase. Its basis is the duty of affording an 'efficient and economical administration of justice.' The equity is an independent one, not requiring the presence of any other distinct ground of equitable relief.

Lawrence on Equity Jurisprudence, section 1022.

The separate remedy at law for each of several trespasses would not be adequate to relieve the injured party from the expense, vexation and oppression of numerous suits against the same wrongdoer in regard to the same subject-matter. The ends of justice require in such case, that the whole wrong shall be arrested and concluded by a single proceeding. And such relief equity affords, and thereby fulfills its appropriate mission of supplying the deficiencies of legal remedies.

Warren Mills v. New Orleans Seed Co., 65 Miss. 391; Guice v. I. C. R. R. Co., 111 Miss. 36, 71 So. 259; Railroad Co. v. Garrison, 61 Miss. 257, 32 So. 996; Bishop v. Rosenbaum, 58 Miss. 84; Crawford v. M. J. & K. C. R. R. Co., 83 Miss. 708, 36 So. 82; Pollock v. Okolona Savings Bank, 61 Miss. 293.

To an ever-increasing degree the modern state seeks to surround its governmental machinery with safeguards to insure the minimum of injury and the maximum of protection, but there must inevitably remain a considerable field of potential harm from its operation which only the judicial arm of the government may avert or alleviate, and with which a court of equity is particularly well qualified to deal. Every department of organized government, legislative, executive and judicial, is subject to the exercise of this power, though in varying degrees, and subject to important limitations imposed by public policy and constitutional law.

Lawrence on Equity Jurisprudence, "Injuries Inflicted Through Governmental, Official, or Judicial Agency."

Equally well settled is the doctrine that public office, no matter what its character or rank, confers no immunity from liability for abuse of official power, and when acting in excess of the authority conferred by law, or abusing authority in matters not entrusted to their discretion, such officials are subject to judicial control, both of courts of law and equity, regardless of their official status.

Lawrence on Equity Jurisprudence, section 964.

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

I do not deem it necessary to file a brief in reference to the jurisdiction of the trial court to entertain the bill filed in this cause.

This court has repeatedly held that it cannot determine issues not determined by the trial court.

Robertson v. Bit. Co., 129 Miss. 453; Brown v. Sutton, 121 So. 835; Bridges v. Frisco, 125 So. 423.

OPINION

Ethridge, P. J.

W. J Miller, the state tax collector, filed a bill seeking an injunction against the state auditor, alleging that it was the duty of the state collector to examine the books, accounts, and vouchers of all fiscal officers, and depositories of the state, and of every county, municipality, levee board, and taxing district of every county, municipality, levee board, and taxing district of every kind, and to sue for, collect, and pay over all money improperly withheld by such fiscal officer; that included in these duties is the duty of collecting privilege taxes from persons who have failed to pay the privilege tax within the time provided by law; and that for many years, in fact ever since the creation of the office of state revenue agent, who was the predecessor of the state tax collector, it has been the custom of that office to send out agents to investigate and check the public records, and, when they located delinquent privilege taxes in any county, they gave a notice on forms provided by the state tax collector to both the county tax collector and to the delinquent taxpayer of such delinquency and the amount then due, and, unless the same was paid, suit would be brought therefor; that customarily after receiving such notice the money was paid to the county tax collector, and the deducts the commission of the state tax collector, or the state revenue agent prior to the changing of the name, and settles with the auditor of public accounts, showing the deduction of the commission of the revenue agent or state tax collector from the amount collected; that through long years of practice and the construction of departmental offices the state auditor has approved the county tax collector's settlements, deducting, the commission of the revenue agent, and also the commission of the county tax collector, and paying the balance into the state treasury, after such settlement, etc., with the state auditor of public accounts. It was further alleged, however, that recently the present state auditor, conceiving that he had the power and right to judge of such matters, had refused to allow the county tax collectors to deduct the twenty per cent. commission allowed by law for the state tax collector where the county tax collector had also deducted a commission or fee for himself, and that he would not receive a report containing or showing deductions in favor of the state tax collector and the county tax collector for their respective commissions, and threatened to enforce penalties provided by law, which are heavy in their nature, for failure to file a proper report of commissions and pay the proper...