Town of Wesson v. Collins

• Decision Date: 11 February 1895
• Court: Mississippi Supreme Court
• Parties: TOWN OF WESSON v. T. C. COLLINS

18 So. 360

72 Miss. 844

TOWN OF WESSON v. T. C. COLLINS

Supreme Court of Mississippi

February 11, 1895

FROM the circuit court of Copiah county, HON. J. B. CHRISMAN Judge.

Appellee was elected marshal of the town of Wesson in 1891, for a period of two years. Under the charter and ordinances, he acted as marshal and street commissioner, and, in addition assessed and collected taxes. He sued the town for five per cent. commission on certain taxes assessed by him for 1892 and three per cent. for collecting. Defendant pleaded the general issue, and gave notice that it would offer evidence that plaintiff qualified as marshal in December, 1891, and served with the distinct understanding that he was to receive $ 40 per month for the performance of all duties provided for by the ordinances of said town, and $ 5 per month as street commissioner, and that he had been paid such sums in full satisfaction. Defendant also gave notice that the commissions claimed by plaintiff on taxes collected had been voluntarily paid into the town treasury, and, therefore, could not be recovered by suit. Trial by jury was waived and the case was heard before the court. Various ordinances were offered in evidence and other testimony given, as indicated in the opinion. It was shown that all the taxes collected by Collins during the term of his office were paid into the town treasury as collected, and that he did not claim any commissions out of the same at the time, and that this suit was not instituted until after he was defeated for re-election. Plaintiff recovered judgment for $ 447.93. After the rendition of the judgment, defendant moved the court to enter a remittitur of $ 90, an alleged excess of the amount of commissions on taxes collected. This motion was overruled. Defendant appeals. The opinion contains such further statement of the case as is necessary to an understanding of the questions decided. It is not deemed necessary to set out at length, the various ordinances referred to.

Reversed and cause remanded.

J. S. Sexton, for appellant.

That portion of 9 of the ordinances relating to the commissions of the assessor and tax collector had been repealed before Collins became marshal. The ordinance fixing the stated salary for the services of the marshal, necessarily repealed all former ordinances, by which he was to be paid both fees and salary. 43 N. J. L., 13; 103 Ill. 617.

The undisputed testimony is that, when he was about to enter upon his duties as marshal, a resolution was passed by the board in his presence, to which he consented, that he should receive $ 40 per month for acting as marshal, assessing property and collecting taxes. It was not necessary that this resolution should be entered on the minutes of the board. See 2 Dill. on Mun. Corp., 238; 17 Am. & Eng. Enc. L., 243; 69 Pa. 328.

A contemporaneous construction of an ordinance adopted by all the parties interested in its enforcement, although not controlling, is in all cases entitled to great weight. 49 Mo. 401; 7 Ill.App. 438.

If the ordinance of 1893 was not repealed, then no salary whatever was fixed by ordinance and the marshal was only entitled to commissions for assessing and collecting taxes, which did not equal the $ 40 per month he received.

The failure of Collins to retain commissions, and his payment of the same into the town treasury, operated as a voluntary payment, and he cannot recover the same. Jackson v. Newman, 59 Miss. 385; 18 Am. & Eng. Enc. L., title Voluntary Payment; 9 Allen, 393; 56 N.Y. 289; 59 Ib., 603; 4 Gill. (Md.), 425; 46 Cal. 589; 4 Waits. Ac. & Def., 476, 479.

R. N. Miller, for appellee.

There is nothing in the evidence showing an estoppel. The testimony to the effect that the officer agreed to receive less than his legal compensation was all incompetent. Greenhood on Pub. Pol., 350.

Again, the action of the authorities could only be expressed by resolution duly entered on the minutes. 52 Miss. 107; 58 Ib., 818. Appellee was elected by the people and was entitled to the compensation provided by the ordinances. I refer the court to 9 Am. & Eng. Enc. L., p. 914, and note 5; Insurance Co. v. Brainard, 72 Iowa 130.

There was no voluntary payment of the commissions in this case, because it was not claimed or demanded that appellee should pay the commissions into the treasury. Howe v. State, 53 Miss. 57.

Argued orally by R. N. Miller, for appellee.

OPINION

WHITFIELD, J.

A careful consideration of the ordinances of June, 1883, July 7, 1885, July 5, 1887, and March 11, 1889, makes it clear that one person (the town marshal) is to perform all the duties of marshal proper and of tax assessor and tax collector. It is called "his office." He is said to be, ex officio, tax assessor and tax collector. There are three kinds of duties--the duties usual with a constable or marshal, and the duty of assessing the and the duty of collecting the taxes. But one person, the marshal, is to discharge all. But it seems to us to be equally clear that, throughout all these ordinances distinct and separate compensation is contemplated for each different kind of service. The ordinances of 1883 provide for assessing the taxes "five per cent. on the amount of tax for judiciary (general) purposes;" for collecting the taxes three per cent. "on all collections, to be retained by the tax collector in settlements;" for the marshal, "reasonable compensation per day or per month, to be fixed by the mayor and aldermen;" and, by way of fees, $ 1.50 in each criminal case, "or same fees as constables in similar cases" receive. No salary was thus far provided. But the ordinance of July 7, 1885, provided that the then marshal, G. B. Mullins, should receive $ 50 per month, as "salary," and that "all fees that might become due him from July 1, 1885, should be turned over to the...