National Life & Accident Ins. Co. v. State ex rel. Mitchell, Attorney-General

• Decision Date: 16 February 1931
• Docket Number: 29224
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. STATE ex rel. MITCHELL, ATTORNEY-GENERAL
• Court: Mississippi Supreme Court

132 So. 549

159 Miss. 513

NATIONAL LIFE & ACCIDENT INS. CO. v. STATE ex rel. MITCHELL, ATTORNEY-GENERAL

No. 29224

Supreme Court of Mississippi

February 16, 1931

Division A

Suggestion Of Error Overruled March 2, 1931.

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

Action by the National Life & Accident Insurance Company against the State, on the relation of George T. Mitchell Attorney-General. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Virgil Howie and W. B. Fontaine, both of Jackson, for appellant.

A claim against the state for which suit may be brought must be such as the auditor of public accounts must audit, as the ministerial officer of the state for that purpose.

State v. Dinkins, 27 So. 832, 77 Miss. 874; Chapter 196, Laws of 1926, Code of 1930, section 3276 justifies the refusal asked.

Section 5997, Code 1930, of the Code defines and measures the right of any one to sue the state in its sovereign capacity. This section of our Code has been judicially interpreted by our court, and it only remains for us to follow the path which our legislature and court has surveyed and blazed out. To support a suit against the state, the claim must be a claim which the auditor has authority to audit and to allow.

Gulf Export Company v. State, 73 So. 281, 112 Miss. 452; Brown, Land Com. v. Ford, 73 So. 722, 112 Miss. 678.

The words approval and approve cannot in any wise be construed to have the force and effect of the meaning of the "allow" and these words are not synonymous and may not be used in an equivalent sense.

Thurman v. Adams, 82 Miss. 204, 133 So. 944; Long v. Board of Commissioners, 80 N.E. 188; Baker v. Hammett, 100 P. 1114; 4 C. J. 1463; People v. Matthies, 72 N.E. 103; State v. Thein, 127 N.W. 1079.

In both sections 3276 and 5997, of Code of 1930, the opening sentences are almost identical in that the claimant must first present their petition to the auditor of public accounts. In section 5997, Code of 1930, if the auditor refuses to pay the claim suit may be brought against the state thereon but in section 3276 Code of 1930, the phrase that the same must be approved by the attorney-general is now used by counsel for appellee as the reason why the state should not be sued in this instance. To thus deny the claimant herein his right to recover erroneous tax payments from the state because of the phrase that the same must be passed upon by the attorney-general, would be to deny the claimant the right given him to recover from the state taxes erroneously paid to it. There is no other method by which taxes erroneously paid can be recovered than by suing the state after first complying with the statutory provisions and upon the refusal of the auditor to issue his warrant.

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

Section 4800, Code of 1906, section 3370, Hemingway's Code of 1927, section 5997, Code of 1930, does not authorize appellant to sue the state in this cause for two reasons:

First, because the state auditor is not authorized to audit and allow said claim without the approval of the attorney-general.

Second, because chapter 196, Laws of 1926, section 3276, Code of 1930, provides the method for refunding privilege taxes erroneously paid.

Hall v. State, 79 Miss. 38, text 41; State v. Dinkins, 77 Miss. 874; Gulf Export Co. v. State, 112 Miss. 452, text 458.

Argued orally by W. B. Fontaine and Virgil Howie, for appellant, and by J. A. Lauderdale, Assistant Attorney-General, for appellee.

OPINION

McGowen, J.

The appellant filed its declaration against the state of Mississippi seeking to recover from the state a refund of excess privilege tax amounting to two thousand thirty-one dollars and sixty cents, alleged to have been wrongfully collected from it by the state of Mississippi. The facts upon which the refund is claimed, and the principle of law involved, is to be found in the case of Universal Life Insurance Co. v. State ex rel. W. J. Miller, 155 Miss. 358, 121 So. 849. The declaration showed that the refund here sued for was actually paid to the state on the 11th day of July, 1923; that a claim for refund was filed with the auditor of public accounts on the 3d day of July, 1929, where it remained on file until January, 1930, at which time it was referred to the attorney-general. The claim for refund remained with the attorney-general until June 7, 1930. The declaration alleges that this cause of action did not accrue until June 7, 1930. The suit was filed July 7, 1930. There was a demurrer to the declaration, mainly on three grounds: (1) That chapter 66, Hemingway's 1927 Code, section 5997, Code of 1930, does not authorize the suit set out in the declaration; (2) that it was not alleged that the legislature of the state of Mississippi had appropriated sufficient funds to pay said claim; and (3) that the cause of action was barred by the six-year statute of limitations.

In view of the conclusion we have reached in this case, we will consider only the first stated ground of demurrer. We are of the opinion that the cited chapter authorizing suits against the state does not apply to this case.

Section 3370, Hemingway's 1927 Code, is brought forward as section 5997, Code of 1930, and is in the following language: "Any person having a claim against the state of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject-matter which holds its sessions at the seat of government; and if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be." Chapter 196, Laws of 1926, being section 3276, Code of 1930, provides the method for refunding to the taxpayer privilege taxes erroneously collected, which, in substance, says that the auditor of public accounts shall make a careful investigation of such claim and submit the audited claim to the attorney-general for his (the attorney-general's) inspection and approval; and authorizes the...