White v. Miller

• Decision Date: 23 March 1931
• Docket Number: 29347
• Citation: 160 Miss. 734,133 So. 146
• Court: Mississippi Supreme Court
• Parties: WHITE, STATE AUDITOR, v. MILLER, STATE TAX COLLECTOR, et al

133 So. 146

160 Miss. 734

WHITE, STATE AUDITOR, v. MILLER, STATE TAX COLLECTOR, et al

No. 29347

Supreme Court of Mississippi

March 23, 1931

Division B

Suggestion Of Error Overruled May 12, 1931.

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

Mandamus action by W. J. Miller, State Tax Collector, and another against Carl C. White, State Auditor. Judgment for the plaintiffs, and the defendant appeals. Affirmed.

See also, Miller v. White, 133 So. 144.

Affirmed.

J. A. Lauderdale, Assistant Attorney-General, for appellant.

The state tax collector and the county tax collector both cannot be compensated for one and the same collection.

Chapter 88, Laws of 1930, revises and amends the privilege tax laws of the state.

Section 7, chapter 17, Laws Extraordinary Session of 1928, fixes the compensation of a county tax collector for collecting privilege tax.

The county tax collector's commission for collecting penalties for failure to pay privilege tax is fixed by section 239, chapter 88, Laws of 1930.

County tax collector must pay in all taxes collected by him, less his commissions.

Section 8284, Hemingway's Code of 1927.

Section 7066, chapter 71, Laws Extraordinary Session of 1928, allows the state tax collector twenty per cent commission on all amounts collected.

The interest of the state and the revenue agent in this matter is identical. He gets nothing if nothing is collected. He gets twenty per cent only when the public revenues get their eighty per cent.

Adams v. Bolivar County, 75 Miss. 155.

Appellees contend that inasmuch as the state actually receives more when the delinquent tax and penalty are collected as outlined in the petition than it would receive if the tax was paid when due that the state cannot complain. This is fallacious for two reasons: First, the penalty is not levied for the sole benefit of the tax collectors; and second, all of the commission is not paid or deducted from the penalty.

Where an officer is compensated by a commission on the amount of money collected by him, then he is only entitled to the commission when he does or performs some act outlined by statute in the collection of said amount.

Railroad Co. v. Love, 69 Miss. 109, text 111; Adams v. Hawks, 70 Miss. 639, text 644; Miller v. Delta Pine Land Co., 74 Miss. 110.

Where a statute has been construed by the Supreme Court and afterwards re-enacted by the legislature in the same form, such re-enactments carries with it the endorsement by the legislature of such construction.

Womack v. Central Lumber Co., 92 So. 2, 131 Miss. 201; Hay v. Hay, 48 So. 903, 93 Miss. 732, 25 L. R. A. (N. S.) 182; Burkes v. Moody, 107 So. 279, 141 Miss. 370.

The state tax collector cannot assess any tax, and no officer is authorized to assess a privilege tax.

Thibodeaux v. State, 69 Miss. 683; State v. Tonella, 70 Miss. 701; State v. Adler, 68 Miss. 487.

In the absence, however, of a resort to coercive measures, when the taxes may be paid to two different officers, then the officer actually receiving the taxes is the one who actually collects them.

Robertson v. Shelton, 127 Miss. 360, text 377.

The legislature has adopted this construction by reenacting said statute in practically the same language.

Chapter 230, Laws of 1924; Chapter 286, Laws of 1926; Chapter 71, Laws Extraordinary Session 1928; Section 6776, Code of 1930; Womack v. Central Lumber Co., 131 Miss. 201; Hay v. Hay, 93 Miss. 723; Burkes v. Moody, 141 Miss. 370.

The ultimate duty and responsibility of construction is upon the court, and departmental interpretation cannot well be resorted to where the language of the statute is plain. Before we are justified in accepting departmental construction the law under consideration must be doubtful, ambiguous or uncertain.

State v. Cotton Compress., 123 Miss. 191, text 207; Powell v. Smith, 74 Miss. 142.

The principle is a familiar one that in the interpretation of a doubtful or ambiguous statute, the long continued and uniform practice of the authorities charged with its administration is entitled to great weight, and will not be disturbed except for cogent reasons. Long continued practice and the approval of administrative authorities may be persuasive of the interpretation of doubtful provisions of the statute, but cannot alter provisions that are clear and explicit when related to the facts disclosed. A failure to enforce the law does not change it.

Louisville v. N. R. R. Co. v. U.S. 75 L.Ed. 407; W. J. Miller, Tax Collector v. Y. & M. V. R. R. Co., 132 So. 597.

The state tax collector is entitled to commissions only only on "funds" collected and paid over by him.

Miller v. Delta Pine Land Co., 74 Miss. 110; Garrett v. Robertson, 120 Miss. 731; Robertson v. Shelton, 127 Miss. 360; Miller v. Henry, 139 Miss. 651.

Chalmers Potter, of Jackson, S. C. Mize, of Gulfport, and J. H. Sumrall, of Jackson, for appellees.

The method for compensating the office now known as "state tax collector" has been uniform since the office of state revenue agent was first created by statute. This method consists of the right to receive twenty per cent commission on all amounts collected and paid over to the state, or any of its subdivisions, as a result of the activities of such officer, in matters coming within his powers and duties as provided by law.

Section 6999, Code of 1930.

This statute has been construed by this court in a manner which forever sets at rest any question as to whether or not the state tax collector must actually collect the money before he is entitled to commissions on such collections.

Adams v. Bolivar County, 75 Miss. 154; Miller v. Henry, 139 Miss. 651.

Not only does the scheme provided by chapter 88, Laws of 1930, as a whole indicate the correctness of the method used in making the collections involved in this case, and especially when compared with corresponding sections in prior laws on the same subject, but section 239 of said chapter 88, settles all questions, as to what is contemplated by said laws when it specifically provides for a variation in the compensation of the tax collector making the collection, when made of his own volition, or when made at the instance of the state tax collector.

Contemporaneous departmental construction, long acquiesced in, becomes established law.

Lewis Southerland Statutory Construction; Hahan v. U.S. 27 L.Ed. 527; Plummer v. Plummer, 37 Miss. 185; Brittain and Henry v. Robertson, State Revenue Agent, 120 Miss. 684; Robertson v. Texas Oil Company, 141 Miss. 356; Miller v. Y. & M. V. R. R. Co., 132 So. 597.

OPINION

Anderson, J.

Appellees brought this action in the circuit court of Hinds county against appellant for a writ of mandamus, requiring appellant to receive and file a report of appellee Havens, tax collector of Harrison county, showing collections of privilege taxes, and damages thereon, and deductions therefrom of commissions claimed by him, and also by the state tax collector. There was a trial before the circuit judge, sitting as both judge and jury on appellees' petition for the writ of mandamus, and appellant's plea thereto, and evidence, resulting in a judgment in appellees' favor. From that judgment appellant prosecutes this appeal.

The question in the case is whether both the state tax collector and the county tax collector are entitled to commissions on the damages imposed by law on delinquent privilege taxpayers, where such delinquent taxes and damages are collected by the county tax collector at the instance of the state tax collector.

The evidence in the case established the material allegations of appellees' petition for the writ of mandamus. Probably no better statement of the case could be made than to set out the petition itself, which, leaving off the formal parts and the exhibits, is as follows:

"Comes W. J. Miller, State Tax Collector, who sues in the name of the state of Mississippi for aid in the conduct of his official duties, and J. W. Havens, Sheriff, and Tax Collector of Harrison county, Mississippi, who would respectfully show unto the court the following facts, to-wit:

"Your petitioner, W. J. Miller, is the duly elected, qualified and acting state tax collector of the state of Mississippi, and J. W. Havens is the duly elected, qualified and acting tax collector of Harrison county, Mississippi.

"Your petitioner, W. J. Miller, would further show that by law it is made his duty to proceed by suit, in the proper court against all persons, corporations, companies, and associations of persons, for all past-due and unpaid taxes of every kind whatever except income and inheritance taxes.

"It is also made the duty of petitioner, W. J. Miller, to investigate the books, accounts and vouchers of all fiscal officers, and depositories of the state, and of every county, municipality, levy board and taxing district of every kind, and to sue for, collect and pay over all money improperly withheld by such fiscal officer of depository.

"Your petitioner, W. J. Miller, would further show that in the performance of the duties imposed upon him by law, and in the exercise of the powers conferred upon him by law, where privilege taxes due to the state of Mississippi, or any municipality or levee district thereof, are discovered to be past due and owing he proceeds, as all of his successors in office have done, in the following manner to bring about the collection of such taxes, together with such damages as may be imposed by law for such delinquency.

"Your petitioner, as state tax collector appoints deputies who are competent to perform the duties necessary in connection with such matters, and said deputies are sent to the several counties of the state, charged with the duty of making such...