State ex rel. District Attorney v. Greer
| Decision Date | 07 June 1915 |
| Docket Number | 16660 |
| Citation | 109 Miss. 558,68 So. 778 |
| Court | Mississippi Supreme Court |
| Parties | STATE EX REL. DISTRICT ATTORNEY v. GREER, TAX COLLECTOR, ET AL |
APPEAL from the chancery court of Lincoln county. HON. G. G. LYELL Chancellor.
Suit by the state of Mississippi and Lincoln county, on the relation of the district attorney against J. F. Greer, tax collector and the United States Fidelity & Guaranty Company. From a decree sustaining a demurrer to the bill interposed by the United States Fidelity & Guaranty Company, complainants appeal.
The facts are fully stated in the opinion of the court.
Decree reversed, and cause remanded.
Lamar F. Easterling, Assistant Attorney-General, for appellants.
This case, presents sharply the question of whether or not a surety by paying the amount a sheriff is actually short into the court, can prevent the state and country from collecting the thirty per cent damages and interest provided by law. The statute plainly says that: I am unable to see how it is possible to have a clearer statement of the law than this. The delinquent tax collector should pay damages of thirty per cent thereon and interest on said amount of principal and damages at the rate of six per cent per annum from the time the same shall be due until paid. Toppan v. The People, 67 Ill. 340.
"In general, the liability of the surety follows that of the principal, and if the obligation is valid against the principal it is valid against the surety." 27 Am. & Eng., Ency. Law (2 Ed.), 454; 27 Am. & Eng. Ency. Law, (2 Ed.), 542.
Can it be said that the failure of the auditor and the county clerk to charge said interest and damage would cancel the debt to the state and county? Can it be contended that the failure of these officers to do what the law imposed upon them would release the tax collector and his surety? This charge of thirty per cent when incurred could only be released in one way, if at all, that is upon the certificate of the governor and the attorney-general that they are satisfied that the delay had not been wilful or avoidable by the collector. But in no case was the interest to be remitted. If there ever was a case in which, clearly within the statute, this damage was incurred this is certainly one. I believe one would search long before he would come to a case where the failure to pay over was so persistent, systematic, flagrant and wilful, as in this case.
In such cases the interest and damages could not be released or remitted, but are due and collectible from the tax collector on his bond.
This statute was before this court in the case of Adams v Sanders, 89 Miss. 784 and 93 Miss. 520. In the second appeal of this cause, 93 Miss. page 533, the court speaking through WILLIAMSON, Special Judge, said: "It stands decided in this cause that the tax collector, Saunders, and the sureties on his official bond must pay into the county treasury the money collected by him as tax collector in the years 1890 and 1891. As a general principle of law, the liability of the surety is that of the principal and is measured by that of the principal.
It is stated in Thropp on Public Officers, section 292 as follows "It has been said, and correctly, as a general proposition, that there is no distinction between the liability of a surety and that of the principal in the bond; and that the same act or neglect which will charge the principal, will also charge the surety."
The bond given by the tax collector in this case, a copy of which is attached to the original bill, is conditioned as required by law.
In the case of State v. Lewenthall, 55 Miss. 589, which was a suit by the county of Lincoln against the tax collector and the sureties on his bond under section 1726, of the Code of 1871, which provides that in suits on tax collectors' bonds to recover state taxes, judgment shall be given for the amount due by the collector with thirty per centum per annum damages, etc., and section 1727, of the Code of 1871, provides that like proceedings shall be instituted for nonpayment of county taxes, the point was made by the sureties that the thirty per centum damages could not be recovered by the county for the reason that the damages were not claimed in the declaration. On this point, the court, on page 592, said:
From this case, it seems manifest that recovery for the damages under the sections mentioned would run against both the principal and the sureties on the bond; in fact, if we read this correctly, that is precisely what the court held in this case.
In the case of Boykin, et al v. State, 50 Miss. 376, the statutes of 1857 being almost identical were brought into review. The court, after reviewing the statutes and the law applicable to the facts of the case which was a suit on a tax collector's bond, said: "For this sum" (that is, the amount due by the collector), "judgment should be given with thirty per cent damages per annum according to the foregoing provisions of the Code, after deducting all legal allowances." etc.
We therefore, submit that on this feature of the case that the learned chancellor erred in his construction of the statute and in holding that the state was not entitled to recover the interest and damages to be computed by law on the various amounts and collections collected by the sheriff and withheld by him not paid over for the various periods particularly set forth in said bills.
We submit that a decree should have been rendered for the complainants in the court below for the total amount of interest, damages and principal amounts computed according to law as was decreed against the sheriff, the principal in the bond. We submit that the measure of liability as against the sheriff for failing to perform the duties of his office in the manner pointed out by the statute was the measure of the liability of the surety on his official bond.
H. Cassidy and Wm. M. Hall, for appellees.
I respectfully urge that these statutes being highly penal, there is nothing contained therein to authorize or justify the holding of the bond for the penalty. The surety could only be held, in the event suit was brought for the taxes due and unpaid, for the penalty, by restoring section 4359 to the Code.
It is settled in this state that nothing can be added to penal statutes by construction in favor of the penalty. I quote from Mississippi Digest Annotated: "Penal statutes cannot be extended by construction so as to bring within their provisions cases not embraced in their plain letter."
The gist of this text is supported by numerous cases numbered among which are: Merrell v. Mechoir, 30 Miss. 516; Johnson v. State, 63 Miss. 228; Satfford v. State, 44 Miss. 801; Foote v. Vanzant, 34 Miss. 40; Wortham v. State, 59 Miss. 179; State v. Austin, 23 So. 34; British etc. Co. v. Burke, 80 Miss. 643; Hatton v. State, 92 Miss. 651; Stewart v. State, 95 Miss. 627; McInnis v. State, 52 So. 634.
The foregoing argument is based upon the idea that the surety is not liable on the bond of the collector for the penalties pronounced against the collector, unless it is plainly and unequivocally provided by the letter of the law that the surety shall be liable also.
If, perchance, the court should be of opinion that as an abstract proposition the surety would be liable for the penalty, then the statutes being highly penal, the state and county should have proceeded in strict compliance therewith, none of which was done as appears on the face of the bill and amended bill. There are certain conditions precedent to the bringing of such a suit as provided by the statutes: 1. The collector must fail to report or pay over; 2. The auditor or clerk must charge the damages to the collector; 3. The auditor or clerk must immediately notify the district attorney and furnish him a statement of the amount due by the collector; 4. The district attorney shall forthwith commence suit on the bond of the collector for the taxes due; 5. If the auditor does not know the amount, he shall so state. This suit is for the penalty alone, the thirty per cent damages and the interest on principal and damages at six per cent per annum.
No penalty was charged to the collector. The auditor did not immediately notify the district attorney, nor did the district attorney forthwith file suit when the collector failed to settle on the 10th of the month. The reason for the haste in the statute was the evident necessity of suing for the principal so that the penalty could be added. Had such a suit been filed...
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