State ex rel. Potter v. Welch

• Decision Date: 28 January 1924
• Docket Number: 23933
• Citation: 134 Miss. 315,98 So. 851
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. POTTER, Atty. Gen., v. WELCH, Sheriff

98 So. 851

134 Miss. 315

STATE ex rel. POTTER, Atty. Gen., v. WELCH, Sheriff

No. 23933

Supreme Court of Mississippi

January 28, 1924

Division B

Suggestion of Error Overruled Feb. 25, 1924.

APPEAL from chancery court of Jones county, HON. G. C. TANN Chancellor.

Suit by the state, on the relation of Clayton D. Potter attorney-general, against W. E. Welch, sheriff and tax collector, Jones county. From a judgment for defendant plaintiff appeals. Reversed and judgment rendered.

Reversed.

H. T. Odom, Assistant Attorney-General, for appellants.

This is an appeal from a final decree of the chancery court of the second judicial district of Jones county dismissing a bill of complaint of the state of Mississippi, and Jones county, on the relation of the attorney-general, wherein it was alleged that W. E. Welch, tax collector of Jones county, wrongfully and unlawfully retained as his commission for collecting state and county taxes in said county, sixteen hundred dollars in excess of the compensation fixed and allowed him by law, by treating each judicial district as a separate county.

The appellants contend that the commission of all tax collectors is absolutely fixed and limited by the sliding scale set out in the provisions of section 2, chapter 160 of the Laws of 1922, and that tax collectors should be governed thereby, regardless of whether or not the county is composed of two judicial districts.

The appellee, on the other hand, defends on the ground that section 2205 of the Code of 1906, same being section 1891 of Hemingway's Code, is his authority for his retaining the sixteen hundred dollars in controversy. I shall endeavor to show that the defense is without merit and that the foregoing statute does not apply.

The statute relied on by appellee, tax collector, was first enacted by the adoption of the Code of 1892, and appears in said Code as section 2027-a thereof, being brought forward in the subsequent Codes without change, as section 2206 of the Code of 1906, and section 1891, Hemingway's Code.

Our court construed the foregoing section to apply to county auditors in the case of State v. Brame, 112 Miss. 665, 73 So. 721. I shall not here question the correctness of the foregoing decision for the reason that in my judgment it has no application or bearing on the case at bar as to the proper compensation of tax collectors. It becomes evident that the foregoing statute could not, and never has applied to tax collectors when we note that in adopting the Code of 1892 the legislature simultaneously provided in a separate section for extra compensation of tax collectors in counties having two judicial districts. Section 2020 of the Code of 1892.

In the face of the foregoing statute especially providing for the extra compensation of tax collectors in counties having two judicial districts, it would have been indeed presumptuous to have argued that resort could have been had either to section 2206 of the Code of 1906, or the Brame case, supra, in order to determine how tax collector's commissions in counties having two judicial districts should have been computed, because to have proceeded in such a manner would have been a direct violation of section 2020, Code 1892, and section 2196, Code 1906, which expressly provided how the calculations must be made to determine the compensation for tax collectors in counties having two judicial districts.

This being true, we are committed to the proposition that prior to the amendment of section 2196 of the Code of 1906 by our legislature in 1922, neither section 2206 of the Code of 1906 nor the Brame case, supra, had any connection whatever with, or offered any aid in determining the compensation of tax collectors in counties having two judicial districts, because, as above stated, in plain and unmistakable terms the legislature had prescribed the rule for computing same in section 2196 of the Code of 1906, which alone controlled.

Section 2196 of the Code of 1906 was expressly amended by our legislature in 1922, as will be seen by reference to section 2 of chapter 160 of the Laws of 1922. Having seen conclusively that prior to the amendment of section 2196 of the Code of 1906, as shown above, that section 2206 of the Code of 1906, providing for extra compensation for certain officers in counties having two judicial districts does not apply to tax collectors, we must next determine the effect of the amendment of section 2196 of the Code of 1906 by section 2 of chapter 160 of the Laws of 1922, which was in force when the tax collections involved herein were made.

The first observation of the amendment when compared with the original section is that the old provision in section 2196 of the Code of 1906 as to extra compensation for tax collectors in counties having two judicial districts was entirely omitted from the amendment. This fact lends aid in ascertaining the intent and purpose of the legislature in changing the statute with reference to extra compensation of tax collectors in counties having two judicial districts, and in my judgment is a solution to the following pertinent inquiry: Why did the legislature exclude from the amendment a provision for extra compensation theretofore expressly allowed to tax collectors in counties having two judicial districts?

It seems to me that the purpose of the legislature is apparent; that is to say in revising the statute the legislature concluded that the compensation of tax collectors in counties having two judicial districts would be ample without providing additional compensation. It is apparent that the legislature intended section 2, chapter 160, Laws of 1922, as a complete and full schedule of fees allowed to tax collectors. This is seen from section 3 thereof.

In conclusion I desire to call the court's attention to the rule requiring a strict construction of statutes involving fees and compensation of officers. Sutherland on Statutory Construction, section 714.

Deavours & Hilbun, for appellee.

At the time of the enactment of section 2, chapter 160 of the Laws of 1922 the supreme court of the state of Mississippi had construed section 2206 of the Code of 1906, section 1891 of Hemingway's Code, and had held in Johnson, State Revenue Agent, v. Brame, 112 Miss. 665, 73 So. 721, that under said section:--"We are clearly of the opinion that it was the legislative intent that section 2206 should apply to all county officers in the allowance of compensation for their services in counties composed of two judicial districts."

So when the legislature had before it for consideration and passage said section 2, in chapter 160 of the Laws of Mississippi of 1922, it knew, or must be presumed to have known that section 2206 of the Code, as construed by the court in Johnson, State Revenue Agent, v. Brame, was still in full force and effect. Section 333, Sutherland on Statutory Construction.

Following out this rule the legislature, at the time it had under consideration, the passage of section 2, chapter 160 of the Laws of 1922, had before it and understood fully the effect of the provision of said section 2206, as construed by this court in Johnson, State Revenue Agent, v. Brame.

It is true that in section 2 of chapter 160 of the Laws of 1922 there is no specific reference to commissions to be allowed tax collectors for making collections in counties having two judicial districts. There was absolutely no need for such reference or such provision. There was already a law in full force, section 2206 of the Code, that took care of counties having two judicial districts. So it is manifest that no reference is needed in this latest enactment as to the compensation to be received by tax collectors in double district counties for the most obvious reason that there was already such a statute to take care of...