State v. Adler

• Decision Date: 27 April 1891
• Court: Mississippi Supreme Court
• Parties: STATE EX REL. ETC. v. JACOB ADLER

9 So. 645

68 Miss. 487

STATE EX REL. ETC. v. JACOB ADLER

Supreme Court of Mississippi

April 27, 1891

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

The case is fully stated in the opinion.

Judgment affirmed.

Calhoon & Green, for appellant.

1. The act of 1890 authorized the revenue agent to sue for delinquent revenue. The evil to be remedied was the then existing delinquent revenue which could not be collected by reason of the time having passed for the use of the special remedies provided by law. The statute covers delinquencies prior as well as subsequent thereto. The method for collecting taxes is entirely discretionary with the legislature. In the absence of any provision for additional remedies, that by distress and sale is exclusive. If the statute creating the tax is silent as to the remedy, suit will lie. Piazza v. State, 66 Miss. 426.

The act of 1890 added to the existing remedy the right in the revenue agent to bring suit for delinquent revenue. Under this statute the same remedy now lies for the collection by suit of the license due under § 1109, code 1880, as was given by § 594 in other cases. This is a case of a remedy created where the obligation precedently existed. The obligation to pay the license was personal. "The applicant for license must pay the collector the taxes," etc. Code 1880, § 1104.

If the legislature in the beginning could have authorized suit there is no reason why it may not do so afterwards. The legislature has entire control of remedies. Vaughn v Swazye, 56 Miss. 704.

It is fully within the power of the legislature by retroactive legislation to cure irregularities in regard to the levy and collection of taxes. Cooley on Con. Lim. 371, 709.

The act of 1890 giving a right of action is remedial, and will be retrospectively construed so as to cure the evil.

2. If the case requires discussion of the right to collect delinquent revenue upon property which has escaped taxation, we say: (1) there is no necessity for any particular form of assessment either for current or delinquent revenue. Vaughn v. Swazie, supra. The method in use for assessments is one provided by legislation. There can be no difference in principle between the methods heretofore adopted in subjecting property which has escaped taxation and that prescribed by this revenue act. The legislature has the power to confer the right to assess property on one who is not the constitutional assessor where he is in default. Wolfe v. Murphy, 60 Miss. 1. (2) The legislature has the power to adopt a system for collecting delinquent revenue different from that in use for collecting current revenue, and has done so in the code. If the power exists to provide a special remedy, it is immaterial whether the remedy is created before or after delinquency. The delinquent cannot complain.

J. M. Gibson, on the same side,

Filed a lengthy brief, in which he reviewed at length the several sections of the act of 1890 in connection with the code provisions, seeking to show that the right of action in this case had been conferred upon the revenue agent, and in addition making the following points:--

1. Under the code the liability of the retailer in a case like this is fixed, but there is clearly a casus omissus as to the remedy. By § 1109 it is provided that the sheriff shall assess and collect the taxes, but as to the method of assessing and collecting the code is silent. But there was no constitutional obstacle in the way of supplying this omission afterwards, and this was done by the act of 1890.

2. There is no inhibition in our constitution against retrospective laws. Where a moral obligation to pay exists, the legislature can give legal effect by a retroactive statute. Wade on Retroactive Laws, § 2421; Chaffe v. Aaron, 62 Miss. 29; 95 U.S. 644; 15 Pa. 166; 21 F. 97; 1 Tex. 250; Cooley on Con. Lim. 371.

It is no objection to the existence of this remedy for the debt that punishment is in addition inflicted upon the unlawful retailer. One may be guilty of a crime and yet be under civil liability to the person injured by the crime. So one voluntarily engaged in a business on which the law imposes a license, and who does not pay the tax, cannot plead his own wrong.

Blackwell, McLaurin & McLaurin, on the same side.

Henry & Thompson, for appellee.

The act of 1890 cannot have a retrospective operation. The legislature may vary remedies, cure irregularities and defects, and validate imperfect contracts, etc. But it cannot by retroactive statutes impair contracts or disturb vested rights. 10 S. & M. 100; 50 N.H. 50; 20 Blatch. 341; 26 Pa. 432; 61 Ib. 327. Nor create a liability where none before existed. Cooley on Con. Lim. 369; 16 Mass. 215; 43 N.Y. 130; 18 N.H. 547.

The act of 1890 cannot be given the operation contended for by appellant without varying the effect of a past transaction. It cannot create a demand against one not before that bound.

No civil liability rested upon appellee to pay the privilege license. State v. Piazza, 66 Miss. 426.

If the obligation to pay the privilege tax was a civil liability or debt, then the punishment, fine and imprisonment, imposed by sections 1109 and 1112 of the code would be unconstitutional as being imprisonment for debt. But convictions in such cases have been repeatedly sustained, because the taxes are not debts. Taxes do not rest upon contract, but operate in invitum. If they were debts, their recovery by imprisonment would be unconstitutional. Cooley on Taxation, 18; 5 Gray, 530; 6 T. B. Mon. 641; 16 S.C. 47; 53 Ala. 511.

The act of 1890 creating the office of state revenue agent, and the revenue act of that year, although passed at different dates, are to be construed as in pari materia. When this is done the conclusion must be reached that the liability created by the later act was prospective only. The plainest declaration is necessary to give any statute a retroactive effect. McIntyre v. Ingraham, 35 Miss. 25; Brown v. Wilcox, 14 S. & M. 127; Garrett v. Beaumont, 24 Miss. 377.

It is true, as claimed for appellant, that a criminal act may cause a civil liability to arise also, but in such case the right of the plaintiff and of the state are different, based on distinct considerations. Here the civil and the criminal liability are both in favor of the state, and if both prevail, must subject the citizen to a double penalty

OPINION

COOPER, J.

This suit is brought by the revenue agent of the state to recover from the appellee the sum of four hundred dollars, as the license fees due by him to the state for conducting the business of retailing intoxicating liquors during the years 1888 and 1889--two hundred dollars for each year.

The declaration alleges that during the said years the defendant exercised the privilege of carrying on the business of a retailer of vinous and spirituous liquors in less quantities than one gallon in the 5th supervisor's district of Warren county, without having first obtained a license so to do or paying the price thereof as required by law, the same having been before and during that time fixed by law at $ 200 per annum, wherefore, etc. The defendant demurred to the declaration, assigning many causes of demurrer; but, for the purpose of this examination, the grounds of demurrer may be sufficiently stated as resting upon the objection that the facts alleged do not show that any debt, duty or obligation to the state existed, for which the revenue agent was authorized by law to sue.

The demurrer was sustained, and the suit dismissed, and from that judgment the state prosecutes this appeal.

The right of the plaintiff to maintain this suit exists, if at all, under the provisions of the act entitled, "An act to provide for the collection of delinquent revenue in this state, and for other purposes," approved February 22, 1890. Laws, p. 25.

By the first section of the act, the office of revenue agent is created and his appointment and qualification provided for. By the remaining sections other than the second and third, the duty of the agent to notify the proper law officers of embezzlements discovered by him, and to appear as a witness in prosecutions therefor, the time at which and the persons to whom reports of his collections and settlements are to be made, directions as to representing the state in execution sales of lands, sold under judgments by him recovered, the compensation to be by him received, and other matters not now necessary to be stated, are declared and provided for.

The second and third sections of the act upon the construction of which the solution of the question presented by this appeal depends, are as follows: "Section 2. It shall be the duty of said agent when he shall have reason to believe from information or otherwise, that there is or has been any delinquency on the part of any of the fiscal officers of the state, counties, or levee boards, or municipalities in collecting or paying over the revenues due by law to the same, to investigate the books, papers, and evidence pertaining thereto, and to inquire diligently into the same; and if it shall appear that for any reason there has been a failure to enforce the law, and to collect all revenue due, or if there has been a failure to account for or pay over the amounts collected, said agent is directed and empowered to bring, or cause to be brought, all proper actions at law, or in equity, as the case may be, in his own name as revenue agent, or in the name of the state of Mississippi, or other body politic or corporate to which the same may be due, to recover or enforce the same against the officer on his bond, or any person, (or) corporation owing or properly chargeable with the same. That all such actions at law shall have precedence over all...