State Revenue Agent v. Hill

• Decision Date: 23 May 1892
• Citation: 11 So. 789,70 Miss. 106
• Court: Mississippi Supreme Court
• Parties: STATE REVENUE AGENT v. C. J. HILL ET AL

11 So. 789

70 Miss. 106

STATE REVENUE AGENT v. C. J. HILL ET AL

Supreme Court of Mississippi

May 23, 1892

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

This action was instituted December 21, 1891, by Wirt Adams, state revenue agent, under the act of February 22, 1890, against Carter J. Hill, late assessor of Warren county, and the sureties on his official bond, to recover certain taxes which, it is claimed, were lost to the state and to Warren county, by reason of his failure to assess the Vicksburg Bank and the Mississippi Home Insurance Company during the years 1888 and 1889, as required by § 498, code 1880.

Section 557, code 1880, referred to in the opinion of the court, is as follows:

"The assessor and collector, with their sureties, shall be severally held liable, and bound to pay on their bonds, to the county or state, the full amount of all sums lost to the state or county, respectively, from the failure or neglect of such assessor to assess, return or otherwise faithfully to complete his assessment, or from any neglect of the collector to collect the taxes assessed."

From a judgment sustaining the demurrer of defendants and dismissing the suit, this appeal is prosecuted.

The opinion contains a further statement of the case.

Affirmed.

Calhoon & Green, for appellant.

1. The language of the act of 1890 is broad, enough to include this action, which was brought after the decision of this court in State v. Vicksburg Bank, 69 Miss. 99, wherein it was decided that the remedy in a case like this is against the assessor's bond.

2. The serious question is whether chapter 126, code 1892, repealed the act of 1890 so far as it gave the revenue agent the right to recover from assessors under § 557, code 1880; and if so, whether a pending action was abated thereby. Said chapter 126 gives the right to sue for "revenue improperly withheld." Section 557, code 1880, creates a liability against the assessor for taxes lost through his neglect. The assessor is made liable in place of the tax-payer, who escapes. This is revenue due the state. Upon the principle that it is a present, fixed liability without assessment, the court, in the case above cited, held the action maintainable.

3. But if the act of 1890 was repealed by the adoption of the code chapter, it did not abate this suit, which was duly commenced under said act of 1890. The suit is saved by the express provisions of § 4, code 1892.

Martin Marshall, for appellees.

1. Under the act of 1890, the authority of the state revenue agent to sue extended to only three classes of cases: (1) where the officer charged with the duty of collecting had collected and failed to pay over; (2) where he had obtained improper credits in settlements of his accounts; (3) where there is public revenue due under any law of this state which is delinquent. It did not include this case.

2. The right to maintain the suit was not given by chapter 126, code 1892, if it be in force, because, in the first place, it was adopted after the suit was instituted, and in the next place the chapter does not specifically authorize a suit of this kind. Statutes granting powers are to be strictly construed. Sutherland on Stat. Con., § 392. Statutory remedy or proceeding is confined to the very case provided for, and extends to no other. Ib., 392, 393.

3. Said chapter 126, code 1892, repeals the act of 1890 by implication. Sutherland on Stat. Con., § 137 et seq. It makes no provision for pending suits.

4. It seems that this suit was brought upon the dictum of this court in State v. Vicksburg Bank, 69 Miss. 99. It was not intended by the language there used to declare that the revenue agent could maintain the suit on the officer's bond under § 557, code 1880. This case is an illustration, however, of the "tendency of such dicta to uphold a doctrine or point, which, perhaps, on examination, cannot be sustained, while the support which the doctrine derives from the dictum is sufficiently powerful to invite litigation."

Dabney & McCabe, on the same side.

1. The legislation creating the office of state revenue agent is unconstitutional. The constitution of 1890 provides for various state and county officers, prescribes their qualifications, and fixes the term of office of each. The law providing for the appointment of the revenue agent was in force when the constitution was adopted, yet that instrument nowhere mentions such an officer. There was an implied silent abolition of the office and officer, and the duties he had performed were parceled out among designated constitutional officers.

2. An inspection of the act of 1890, under which this suit was brought, will show that the suit was unauthorized. By a curious oversight the revenue agent was not authorized to sue the assessor. The language used by this court in State v. Vicksburg Bank, 69 Miss. 99, will not support the position that the revenue agent may bring suit against the assessor under § 557, code 1880. That section provides for suit, but it must be brought by the person expressly authorized. French v. State, 53 Miss. 651.

3. If the act of 1890 authorized this suit, it was repealed by the adoption of chapter 126, code 1892, approved April 2, 1892. As the suit was brought December 21, 1891, under the act of 1890, it went with the repeal of that act.

Section 4, code 1892, which provides for the maintenance of pending suits in cases of repeal by the adoption of the code, does not save this suit, for that section was not to go into effect until November 1, 1892. The suit was left without authority on the adoption of the code chapter, April 2, 1892.

4. We are informed that the act relating to state revenue agent, chapter 126, code 1892, was passed within five days next before the close of the legislative session, in violation of § 68 of the constitution, and without a three-fifths vote of the members of each house, required by § 70. This being so, it failed to become a law. We make this point with some diffidence, however, as we have not a copy of the journals.

OPINION

CAMPBELL, C. J.

This action was brought under the act of 1890, creating the office of state revenue agent, before it was superseded and repealed by the act of April 2, 1892, on the same subject. There is no question of the right of the state, or any county, to maintain an action by virtue of § 557 of the code of 1880, but the question is as to the right of the revenue agent to do it, and its solution depends on whether it is conferred by law. Undoubtedly the act of 1890 was repealed by the code chapter taking its place on April 2, 1892, and the fourth section of the code of 1892, invoked by counsel for the appellant to save pending suits from abatement by the repeal of the law sustaining them, did not take effect until November 1, 1892. The blunder was committed of causing a number of acts, constituting parts of the code, to take effect immediately, without any saving clause, except one to become operative on November 1, 1892, after the mischief was done in some instances; but, while no saving clause was adopted as to these acts, where the old law was re-enacted by the new, actions pending by virtue of the old did not fall because the law, being continued as before, there was no instant when it was not in force, and no gap into which the suits previously begun would fall. Anding v. Levy, 57 Miss....