Rigby v. Stone

• Decision Date: 08 February 1943
• Docket Number: 35197.
• Citation: 11 So.2d 823,194 Miss. 775
• Court: Mississippi Supreme Court
• Parties: RIGBY v. STONE et al.

11 So.2d 823

194 Miss. 775

RIGBY v. STONE et al.

No. 35197.

Supreme Court of Mississippi

February 8, 1943

T N. Gore, of Marks, and W. E. Gore, of Jackson, for appellant.

J B. Boyles, of Batesville, J. H. Sumrall, of Jackson, and Greek L. Rice, Atty. Gen., by W. D. Conn, Jr., Asst. Atty Gen., for appellees.

SMITH Chief Justice.

The Honorable A. H. Stone, Chairman of the State Tax Commission issued a warrant to the Sheriff of Panola County for the collection from appellant of a stated amount of sales taxes said to be due by him and for the penalty thereon for the delay in payment. Appellant declined to pay the sheriff and he levied on and sold a stock of goods belonging to the appellant therefor. This action was brought by Rigby against Stone, two of his assistants and the sheriff.

The declaration states a ground for recovery against the sheriff different from that on which the liability of the other defendants is based and probably states a separate and distinct cause of action, but if so, no objection thereto is here made. At the close of the appellant's evidence, it was excluded by the court, and a verdict was directed for the appellees, the defendants in the court below, and these rulings of the court are assigned for error. As we understand the declaration, the appellant's complaints are that the warrant was issued without any previous assessment of sales made by him on which sales taxes could be collected, and that the sheriff sold his stock of goods without giving the required ten-day public notice thereof. The recovery sought is for both actual and punitive damages. The liability vel non of the sheriff will be discussed after that of the other appellees has been disposed of.

The burden of proving that no assessment of the sales made by him or that the governing statute was not complied with in the making thereof was on the appellant, and the record is barren of any evidence that such an assessment was not in fact made. On the contrary, the evidence discloses that the making of such an assessment was assumed throughout the trial and was referred to as such by the appellant himself when testifying. The appellant's real complaint, as we understand it, is: (1) That the statute requires the assessment to be made by the Chairman of the State Tax Commission himself, that the one here was made by one of his assistants to whom he had delegated, without authority therefor, the making of the assessment; and (2) that the assessment is erroneous.

The statute here governing is Chapter 113, Laws of 1938. Section 11 thereof amending Section 16, Chapter 119, Laws of 1934 expressly provides that its administration "is vested in and shall be exercised by the chairman of the state tax commission, except as otherwise herein provided". This provision of the statute, the appellant says, requires such an assessment, in all of its details, to be made by the Chairman of the State Tax Commission in person except mere clerical or ministerial acts requiring no exercise of judgment or discretion, and that Stone himself testified that he did not make this assessment himself, that such assessments are generally made by persons employed by him therefor. The answer to this contention of the appellant appears in the statute itself. Another of its provisions is that "The chairman of the state tax commission shall appoint, as needed, such deputies, agents, clerks and stenographers as authorized by law, who shall serve under him, and shall perform such duties as may be required by the commissioner, including the...