State For Use of Robertson v. Miller

• Court: Mississippi Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: State For Use of Robertson v. Miller, 144 Miss. 614, 109 So. 900 (Miss. 1926)
• Decision Date: 25 October 1926
• Docket Number: 25601
• Parties: STATE FOR USE OF ROBERTSON v. MILLER, STATE REVENUE AGENT, et al. [*]

109 So. 900

144 Miss. 614

STATE FOR USE OF ROBERTSON v. MILLER, STATE REVENUE AGENT, et al. ^[*]

No. 25601

Supreme Court of Mississippi

October 25, 1926

Division B

1 TAXATION.

Laws 1924, chapter 170, relative to revival of suits for unpaid taxes by successor to revenue agent, is retroactive entitling present revenue agent to share of commissions on suits brought by his successor before adoption of act.

2 STATUTES.

Statute will be construed to be prospective and not retroactive, where that can be done and preserve its meaning and purpose.

3. CONSTITUTIONAL LAW. Taxation.

Laws 1924, chapter 170, authorizing division of commissions on revival of suits for unpaid taxes by successor to revenue agent, held not in violation of Constitution, Mississippi, section 16, Constitution, United States, article 1, section 10, paragraph 1, because of retroactive effect as applying to suits instituted by successor before passage of act.

4. CONSTITUTIONAL LAW.

Laws 1924, chapter 170, relative to revival of suits for unpaid taxes by successor to revenue agent, held not in violation of Constitution, sections 1, 2, as conferring judicial power on revenue agent.

5. CONSTITUTIONAL LAW.

Statute, if reasonable construction will admit thereof, will not be held unconstitutional.

6. STATES.

Laws 1924, chapter 170, relative to revival of suits for unpaid taxes by successor to revenue agent, held not in violation of Constitution, section 100, as authorizing revenue agent to remit or extinguish lawful obligation of taxpayers.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of First district, Hinds county, HON. W. H. POTTER, Judge.

Action by the state, for the use of Stokes V. Robertson, against W. J. Miller, state revenue agent, and another. Judgment for plaintiff for less than the amount sued for, and he appeals. Affirmed.

Affirmed.

Thomas H. Johnston and Stokes V. Robertson, for appellant.

I. Under section 7068 of Hemingway's Code, and section 4750 of the Code of 1906, Stokes V. Robertson, former state revenue agent, having filed the suits mentioned in the declaration to recover past due and unpaid privilege taxes and damages and income taxes, was entitled to all the commissions allowed the revenue agent, such taxes and damages have been actually collected by his successor, except the amount contracted by him to his deputies and attorney. Chapter 170, Laws of 1924, does not abate any of these suits; nor does it attempt to repeal section 510 of Hemingway's Code.

II. Chapter 170, Laws of 1924 is not retrospective in its operation, but prospective only and hence cannot affect the rights of the former revenue agent to all the commissions not contracted away by him. 25 R. C. L., p. 786, sec. 35; 25 R. C. L., p. 795, sec. 43.

III. Chapter 170, Laws of 1924 is violative of the Constitution of Mississippi and the Constitution of the United States, in the following particulars.

(1) It violates sections 1 and 2 of the Constitution of Mississippi, in that it gives to the successor of the state revenue agent the right to investigate and determine the merits of all suits brought by his predecessor in office and the right to determine whether they are just and should be proceeded with, and prohibits the courts in which said suits are brought from proceeding with the cases in any way until such action is taken by the successor, and thus gives to an officer in the executive department powers that belong peculiarly and exclusively to the judicial department of the government. Secs. 1 and 2, Constitution of Miss.

(2) It violates section 100 of the Constitution of Mississippi, in two particulars, viz., (a) While the act in question provides that any suit which may be dismissed, or abated under the provisions of the act by the successor of the revenue agent, shall be dismissed or abated without prejudice to the state, county, city or town, it makes no such saving whatever in favor of the obligations or liabilities due the levee boards. (b) If the act in question does not provide in so many words that such liabilities or obligations shall be remitted, released, or in any way diminished or postponed, it certainly does place in the hands of the successor to the revenue agent the power, either by action or non-action to postpone indefinitely fixed obligations and liabilities due these taxing districts. Johnston v. Reeves, 72 So. 925, is not controlling in this case.

(3) It violates section 16 Constitution of Mississippi, and article 1, section 10, paragraph 1 Constitution of the United States, in that it impairs the obligation of contract. (a) In suing for past due and unpaid taxes, the state revenue agent's right to his commissions accrues when he files suit for such taxes, and thus accruing, his inchoate right to the commissions provided by law ripens into a contract--he has performed the service which, under the law entitles him to his commissions--the contract arises by implication of law. Garrott v. Robertson, 83 So. 177; Robertson v. Shelton, 127 Miss. 360; Miller v. Henry, 103 So. 203. (b) The constitutional inhibition against the passing of any law impairing the obligation of contract applies as well to implied contracts as to express contracts. Fisk v. Police Jury, etc., 116 U.S. 131; 6 S.Ct. 329; 29 Law Ed. 587.

Reporter's Note: Brief for the appellee is missing from the record.

OPINION

ANDERSON, J.

Appellant, Stokes V. Robertson, predecessor in office of the present state revenue agent, brought this action in the circuit court of Hinds county against the present state revenue agent, W. J. Miller, and the surety on his bond, the American Surety Company, appellees, for appellant's commissions on certain taxes and damages collected by the present state revenue agent from certain individuals and corporations, for which appellant had brought suits against such individuals and corporations before his retirement from office, and which suits were then pending. Appellant recovered judgment for two hundred forty-four dollars and sixty cents, being one-half of the amount sued for. From that judgment appellant prosecutes this appeal.

Appellant's declaration alleges that, while he was revenue agent, in the discharge of the duties of his office, and after the 1st day of August, 1923, he brought certain suits against certain corporations and individuals for past-due and unpaid privilege taxes and damages thereon, due the Yazoo Mississippi levee board, and against others for past due and unpaid income taxes due the state of Mississippi; that appellant, in his official capacity, had contracted with J. L. Davis, one of his deputies, to pay him one-half of the twenty per cent. commissions allowed the state revenue agent for the collection of income taxes, and with C. D. Ross, one of his deputies, to pay him one-half of such commissions for the collection of privilege taxes and damages thereon, and that he had contracted with Thomas H. Johnston, an attorney, to represent him in all cases brought by him as state revenue agent for the collection of the above-mentioned income taxes and privilege taxes and damages thereon, and had agreed to pay him one-fourth of such commissions; that appellee W. J. Miller was the present state revenue agent, and successor in office to Stokes V. Robertson, and the appellee, American Surety Company, was surety on the present state revenue agent's bond; that, after the present revenue agent had qualified and entered upon the discharge of his duties, appellant advised him of his contract with said deputies and attorney; that the present revenue agent, in the discharge of his duties as such, had collected certain privilege taxes and damages, as well as income taxes, for which appellant, as his predecessor, had entered suits before the expiration of his term of office. The declaration sets out the individuals and corporations sued, giving their names, the court in which the suits were pending, and the total amount of taxes collected from them, viz, nine thousand four hundred eighty-four dollars and seven cents, by the present revenue agent after he went into office. The declaration avers that appellant became, and was entitled to five per cent. of said sum, or the sum of four hundred eighty-nine dollars and twenty cents, which amount the present revenue agent had received for the use of appellant, and which amount the present revenue agent had failed and refused to pay over to appellant.

By agreement of parties a jury was waived, and the case tried before the court sitting as judge and jury. It was further agreed between the parties as follows:

"It is further agreed that Stokes V. Robertson, former state revenue agent, prior to the expiration of his term of office and subsequent to the 1st day of August, 1923, instituted the suits set out in the three declarations in the courts of the various counties as therein recited, and as a result of all of said suits, except that of the Merchants' Grocery Company and the Alabama & Vicksburg Railway Company, the taxes sued for were collected by W. J. Miller, state revenue agent, and the successor in office of the said Stokes V. Robertson, and that the twenty per cent. commissions for the fees due the state revenue agent for making such collections were deducted by him before said taxes were paid into the proper treasury; that, as, to the Merchants' Grocery Company and the Alabama & Vicksburg Railway Company suits, income taxes were collected for a portion of the period of time for which the said Stokes V. Robertson had instituted suit, in the amounts set out in the declarations herein, and that, before the said W. J. Miller, state revenue agent, paid over the amount of the income taxes so collected, he deducted or retained therefrom twenty per cent. commission thereon,...