Selig v. Price

• Decision Date: 06 June 1932
• Docket Number: 30085
• Citation: 167 Miss. 612,142 So. 504
• Court: Mississippi Supreme Court
• Parties: SELIG v. PRICE, AUDITOR OF PUBLIC ACCOUNTS, et al

142 So. 504

167 Miss. 612

SELIG v. PRICE, AUDITOR OF PUBLIC ACCOUNTS, et al

No. 30085

Supreme Court of Mississippi

June 6, 1932

(Division B.)

1 MANDAMUS.

Attorney General, in examining into merits of claim against state and determining whether it is meritorious or legal claim exercises discretion (Code 1930, section 3276).

2 MANDAMUS.

Where bank voluntarily paid taxes and did not avail itself of statutory remedies to cure alleged errors, receiver of bank held not entitled to mandamus to compel Attorney General to approve refund (Code 1930, sections 62, 420, 3138, 3191, 3276).

3 TAXATION.

Taxes, when voluntarily paid, become property of state and county, though erroneously assessed, subject to discretion of legislative body in making appropriations for refund and Attorney General in approving claim therefor (Code 1930, section 3276).

4. MANDAMUS.

Mandamus is discriminatory remedy and not one of absolute right.

5. MANDAMUS.

Mandamus may be refused on ground of petitioner's failure to make necessary allegations for relief.

Division B

APPEAL from the circuit court of Hinds county.

HON. W. H. POTTER, Judge.

Mandamus proceeding by Louis J. Selig, receiver of the Commercial National Bank of Hattiesburg, against Joe S. Price, auditor of public accounts of the state of Mississippi, and others. From a judgment sustaining a demurrer to the petition, the petitioner appeals. Affirmed.

Affirmed.

Hannah & Simrall, of Hattiesburg, for appellant.

The taxation of banks, both state and national, by the state of Mississippi during all of the time under consideration in this case was regulated by the statute now appearing as section 3138 of the Code of 1930.

The machinery provided by the laws of Mississippi under which a taxpayer may obtain a refund of taxes erroneously or illegally collected from him is that provided in section 3276 of the Code of 1930. This statute was originally enacted as chapter 196 of the Laws of 1926.

An examination of the first and primary question presented by this record involves not only the construction of section 548 of title 12 of the United States Code Annotated and section 3138 of the Mississippi Code of 1930, but also involves the application of these statutes to the assessments made against the Commercial National Bank.

The taxing authorities have entirely disregarded both the federal statute and the Mississippi statute and have taxed the bank on its own property. The tax is levied against the Commercial National Bank. The property assessed is the property of the bank, namely, its capital stock, surplus and undivided profits. There is no intimation in this record that the taxes levied and collected and now sought to be recovered were imposed upon the shareholders of the bank or levied against the shares of stock of the bank.

First National Bank v. Adams, 258 U.S. 362, 66 L.Ed. 661.

It cannot be doubted that, as a general principle, it is certain that the taxation of the property, franchises and rights of a corporation is one thing and the taxation of the shares of stock in the names of the shareholders is another and different one.

Owensboro National Bank v. Owensboro, 173 U.S. 664, 43 L.Ed. 851.

As to the refund of state taxes, it is quite clear that the relief sought in this case is in no way in conflict with the statute. The statute requires the auditor to audit the claim and refer it to the attorney general. This was done in this case. It next requires the attorney general to inspect the claim and to approve the same if he finds that the same should be paid. It next requires the auditor to file the claim in his office, and, as respects the state taxes, to issue a warrant on the state treasury, and, as respects the county taxes, to certify the amount of the claim to the clerk of the board of supervisors so that the board of supervisors may cause a warrant therefor to be issued on the county treasury. The declaration in this case only prays for a writ of mandamus to compel the auditor and the attorney general to audit, allow and approve the claim. It does not ask for a writ of mandamus against the auditor to compel him to issue a warrant on the state treasury for the amount of the state taxes.

The third issue presented by this record is the contention of the state auditor that mandamus will not lie to compel him to audit, allow and approve the claim for refund of taxes because the attorney general has disapproved the claim. This contention of the state auditor was answered adversely to him in the case of Riley v. Ammon, 143 Miss. 861, 108 So. 296.

The writ of mandamus shall be issued by the circuit court commanding any inferior tribunal, corporation, board, officer or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust or station.

Section 2348, Code of 1930.

The duty imposed upon the attorney general by the statute is to examine the claim and determine whether or not it is in point of fact and in point of law a claim for erroneously paid or illegally paid taxes. It is his positive duty to disapprove the claim if it be not legally due and to approve the claim if it be legally due. From his demurrer the attorney general seems to take the position that he is acting in a judicial capacity and vested with sole and final discretion in performing his duty under this statute. Not only does the statute itself answer this contention of the attorney general in the negative, but this court has expressly set this contention at rest.

Pearl River County v. Lacey Lumber Company, 124 Miss. 85, 86. So. 755.

W. W. Pierce, Assistant Attorney-General, for the state.

Mandamus will not lie to control the acts of the attorney general as to the manner of exercising his judgment and discretion in approving or disapproving tax refunds under section 3276, Mississippi Code of 1930.

Sec. 1, art. 1, Constitution of Mississippi.

The following authorities support the contention of the attorney general that he cannot be coerced and forced by mandamus to perform an act in a particular manner about which he has the right to exercise judgment and discretion.

Woodbury et al. v. Monroe McClurg, Attorney General, 78 Miss. 831; Robinson et al. v. The Board of Supervisors, 105 Miss. 90; Pearl River County v. Lacey Lumber Company, 128 Miss. 885; State Board of Education v. City of West Point, 50 Miss. 638; State ex rel. v. Lamb, 237 Mo. 437; State ex inf. v. Kansas City Gas Company, 254 Mo. 515; State ex rel. v. Hudson, 226 Mo. 1. c. 265 et seq.; State ex rel. v. Francis, 95 Mo. 1. c. 57; State ex rel. v. Governor, 39 Mo. 388; People v. Attorney General, 41 Mich. 728; Lewright v. Bell, Attorney General (Tex.), 63 S.W. 623; Goodloe v. Lanier, 47 La. Ann. 1. c. 569; State of Mississippi v. Andrew Johnson, President of the United States, 4 Wall. 1. c. 498; State ex rel. Doud v. Lesuerr, 136 Mo. 452; State ex rel. v. Williams, 99 Mo. 291; State ex rel. v. Boonville Bridge Co., 206 Mo. 74; State ex rel. v. McIntosh, 205 Mo. 1. c. 610; Redfield v. Windon, 137 U.S. 643; Boynton v. Blaine, 139 U.S. 1. c. 319.

The general rule is that mandamus will not lie to control the discretion of public officers but will only lie to require the performance of ministerial duties.

State ex rel. v. Bourne, 151 Mo.App. 104; State ex rel. v. Ford, 180 Mo. 97; State ex rel. v. City of Willow Springs, 208 Mo.App. 1. c. 4; Thompson v. Watson, Attorney General, 48 Ohio St. 522; People v. Fairchild, 67 N.Y. 334.

In order that a writ of mandamus may be available, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of respondent to perform the act required.

38 C. J. 691; Ex parte Thompson, 52 Ala. 98.

The only acts to which the power of the courts by mandamus extends, are such as are purely ministerial, and with regard to which nothing like judgment or discretion, in the performance of his duties, is left to the officer, but that wherever the right of judgment or discretion exists in him, it is he and not the courts, who can regulate the exercise.

U. S. v. Guthrie, 17 How. (U. S.) 285; State ex rel. v. Cook, 174 Mo. 1. c. 118.

As pointed out in the foregoing authorities, writ of mandamus never lies against a head of an executive department to control his conduct in matters where discretion and judgment is vested in the officer by law.

Marcum v. Ballot Commission, 42 W.Va. 263; State ex rel. v. City of Willow Springs, 208 Mo.App. 1. c. 4; State ex rel. v. Bourne, 151 Mo.App. 104; State ex rel. v. Ford, 180 Mo. 97; Redfield v. Windom, 137 U.S. 643.

Mandamus will not lie to compel the attorney general and the auditor of public accounts to approve, audit and allow a refund for taxes paid into the state treasury through error or otherwise, under section 3276, of Mississippi Code of 1930 without an appropriation first being made to pay such refund.

A petition for a writ of mandamus cannot be maintained to compel the auditor of public accounts to audit a claim for a refund of taxes by virtue of section 3276, Mississippi Code of 1930, and issue a warrant therefor on the treasury in favor of the claimant until the same has been approved by the attorney general.

OPINION

Ethridge, P. J.

This is an appeal from a judgment of the circuit court sustaining a demurrer to a petition for mandamus filed by the appellant to compel Joe S. Price, state auditor, and Greek Rice, attorney general, to audit, allow, and refund to petitioner taxes paid for the years 1925, 1926, 1927, 1928, 1929, and 1930 by the bank on an assessment made against its capital stock undivided profits, and real estate. It was alleged that the assessment made was in violation of the...