Robertson v. Shelton

• Decision Date: 12 December 1921
• Docket Number: 21943
• Citation: Robertson v. Shelton, 127 Miss. 360, 90 So. 83 (Miss. 1921)
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, STATE REVENUE AGENT, v. SHELTON, TAX COLLECTOR

90 So. 83

127 Miss. 360

ROBERTSON, STATE REVENUE AGENT, v. SHELTON, TAX COLLECTOR

No. 21943

Supreme Court of Mississippi

December 12, 1921

1 TAXATION.State revenue collector held not entitled to twenty per cent commission on taxes actually paid to county tax collector.

When the state revenue agent in the month of July, 1917, made an investigation of the books of the county tax collector, and found thereon tax receipts made out in blank by the tax collector for delinquent taxes upon real and personal property which had been properly assessed, and attempted to collect these taxes by sending out written notices to these delinquent taxpayers from his office in Jackson, Miss., to pay the taxes to him, and the testimony shows that the county tax collector had ben collecting taxes since they became past due and unpaid, and had collected a great amount of taxes and was actively collecting taxes at the time of this investigation and notice of the revenue agent, and the taxes were actually paid by the delinquent taxpayers to the tax collector, though no coercive statutory measures had been taken by either the state revenue agent or the county tax collector to collect these taxes, the county tax collector was the one who actually collected the taxes and the state revenue agent is not entitled to the twenty per cent commission provided for in section 4748, Code of 1906(section 7066, Hemingway's Code).

2.TAXATION.Only coercive measures by revenue agent entitling him to commission is statutory suit to collect exclusive.

The only coercive method by which the state revenue agent may proceed to collect taxes duly assessed is by suit as provided for in section 4738, Code of 1906(section 7056 Hemingway's Code).

3.TAXATION.In revenue agent's action for commission, proof held inadmissible to show that taxes were paid to the collector because of the agent's activities.

When the testimony shows that the county tax collector was attempting to collect delinquent taxes, and that the taxes were actually paid to him, in the absence of any resort to any statutory coercive measures by the state revenue agent proof is inadmissible to show that the taxes were actually paid to the tax collector as a direct result of the activities of the state revenue agent.The county tax collector is the one who actually collected the taxes.

4 TAXATION.Officer to whom taxes are paid is the one who actually collects them.

In the absence of a resort to coercive measures for the collection of taxes, and when the taxes by statute may be paid to two different officers, the officer to whom the taxes are paid is the one who actually collects them.

HON. V. J. STRICKER, Chancellor.

Appeal from chancery court of Copiah county, HON. V. J. STRICKER, Chancellor.

Suit by Stokes V. Robertson, State Revenue Agent, against Burnell Shelton, Tax Collector.Decree for defendant, and plaintiff appeals.Affirmed.

Decree affirmed.

G. G. Lyell, for appellant.

The authorities upon which the appellant relies are the following: Chapter 131, State Revenue Agent, and especially section 4738(Bowers of State Revenue Agent); 4739 (Duties); 4744 (Power to Examine Books); 4748 (Compensation); Parties to suit by); 4295, assessment; 2456 (Taxes a debt recoverable by action); 4312 (Collection of taxes); 4315 (Taxes collected by distress); 4326 (Sale of land for taxes); 4341 (Taxes collected in certain cases by sale of debts); 4350 (Report of insolvency); 4351 (How allowed, etc.); 4352 (Report to be carefully scrutinized); 4352 (Notwithstanding the allowance taxes to be collected); 4357 (Tax collectors reports and taxes paid over monthly, and final settlement);Laws 1912, chapter 242, amending this last section; 4366 (Liability of assessor and tax collector); 4367.(How land not sold at regular time may be sold);Delta and Pine Land Company v. Adams,93 Miss. 340, 48 So. 190;Miller v. Land Company,74 Miss. 110, 20 So. 875;Railroad Company v. West,78 Miss. 789;Adams v. Bolivar County,75 Miss. 154;State v. Kuhn,72 Miss. 276, at page 280;Brougher v. Conley,62 Miss. 358;Garrett v. Robertson, Rev. Agent,120 Miss. 731, 743, 83 So. 178;Johnson v. Yazoo Co.,115 Miss, 528, 76 So. 543;Brougher v. Conley, 62 Miss. 358.

Wilson & Henley, for appellees.

Has the state revenue agent earned his commission according to law?Section 7066, of the Hemingway Code provides: "He shall be entitled to retain for full compensation for his services and expenses twenty per cent of all amounts collected and paid over by him."

If the state revenue agent has rendered the services required by law, that is, the collection of taxes, he is entitled to recover.But if the taxes involved in this controversy were collected solely by the tax collector of Copiah county and the efforts of the revenue agent were not the moving cause of the collection, then the court below is correct and this case should be affirmed.This is the only issue and all other matters are superfluous.

The court below logically determined the issue in this cause in the following language: "The revenue agent claims that as a result of his intervention and mediate activities, culminating with the notice mailed at Jackson, the taxes were paid, and that thus he collected it, and though such collection was not actual it was constructive and the result of his proceedings to that end."Indeed, the bill alleges, and, "Complainant expressly charges and shows to the court that the payment of taxes made by the delinquents listed in Exhibit 'A' since July 27, 1917, have been made as a direct and proximate result of the investigation and services of complainant, acting in his official capacity as aforesaid.Defendant denies that the payment of taxes made by the delinquent listed in Exhibit 'A' since July 27, 1917, has been made as the direct and proximate result of the alleged investigation and services of complainant, acting in his official capacity, or otherwise."

The issue is plain.It simply alleges and denies an implied, or constructive collection by the revenue agent.It presents therefore a question of fact.

We quote the above excerpt from the opinion of the court in this case, upon bill, answer and proof, at this place in our argument merely for the purpose of justifying the elimination of every other issue.In the case at bar, it is conceded that both the tax collector and revenue agent had a right to, and it was the duty of each to collect the delinquent taxes, and it being difficult to distinguish just what moves any certain taxpayer may make to pay his taxes at a particular time, our courts have very wisely refused to enter into an endless examination of cause and effect in the payment of the taxes for each and every individual citizen, but give full credit to the public officer who produces the goods.

This doctrine was first announced in the case of Wynne v. Railroad Company,45 Miss. 569.

There is no compensation for official services where no official services are in fact rendered.The case is analogous to that of Wynne v. Railroad Co.,45 Miss. 569.The question in that case was whether a sheriff was entitled to commissions on money paid directly to the judgment creditor by the debtor, execution having already been levied upon the debtor's property, by the sheriff.The court held, in an opinion never since questioned in this state, that the officer was not entitled to the commissions.Commissions are given as a compensation for services really performed; and when these are not performed, compensation cannot be justly claimed.We know of no such service by an officer as constructive service.There must be an actual collection of taxes, not a constructive collection, to entitle to compensation.

The court will note that we quote slightly more of the opinion in the above case than appears in the chancellor's opinion.The revenue agent does not claim to have performed any act conducive to the collection of the delinquent taxes except mailing notices and demanding that they pay the taxes to him.The statutes nowhere provide for the issuance of such notices.This was not the commencement of a coercive course for the collection of taxes.It was not a matter ejusdem generis to a suit.

Until appellant shows that he had begun some coercive course of action prescribed by statute, in an effort to collect the taxes, there is no foundation upon which to base his contention that the collection was a direct and proximate result of his activities.Appellant, therefore, cannot recover upon the theory of a constructive collection without first showing that he is instituting some proceedings prescribed by law.Anderson v. Hawkes,70 Miss. 639;Railroad Company v. Love, 69 Miss. 109.

But leaving out of consideration this legal question the court below decided this controversy in appellee's favor upon a question of facts.We were quite surprised at the statement in appellant's brief that there was no finding of facts against appellant in this cause.The original bill alleged that the collection of delinquent taxes was made as a direct and approximate result of the activities of the state revenue agent and his deputies, which was specifically denied in appellee's answer.In fact, the question of whether appellant's efforts resulted in the collection of the taxes, was the whole issue in this case and all the testimony introduced revolved about this pivotal point.We also invite the court's attention to the distinction in the case at bar and the case of Adams v. Bolivar Counties,21 So. 608, so ably set forth in the opinion of the court in pages 39 to 41 of the record.

In conclusion, we respectfully submit that; first, the appellant has not entered upon any coercive course of action prescribed by statute for collection of taxes,...