White v. Miller

• Citation: 162 Miss. 296,139 So. 611
• Decision Date: 23 February 1932
• Docket Number: 29759
• Court: Mississippi Supreme Court
• Parties: WHITE, STATE AUDITOR, v. MILLER, STATE TAX COLLECTOR, et al

139 So. 611

162 Miss. 296

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

No. 29759

Supreme Court of Mississippi

February 23, 1932

Division A

1 STATUTES.

Court should declare spirit and reason of statute and ascertain and enforce intent of Legislature.

2 STATUTES.

Court in construing statute may resort to history of legislation and other pertinent considerations to ascertain legislative intent.

3 TAXATION.

State tax collector held entitled to retain until end of his term balance of moneys due state, remaining after payment of twenty per cent, commissions (Code 1930, sections 6998-7000).

HON. V J. STRICKLER, Chancellor.

APPEAL from chancery court of Hinds county, First district HON. V. J. STRICKLER, Chancellor.

Suit by Carl C. White, state auditor, against W. J. Miller, state tax collector, and another. From a decree dismissing the bill, plaintiff appeals. Affirmed.

See, also, 160 Miss. 32, 133 So. 144.

Affirmed.

Lotterhos & Travis, of Jackson, for appellant.

Chapter 71 of the Laws of the Special Session of 1928, in the section numbered 7065, requires the state tax collector to make a report to the state auditor at the end of each fiscal year, and section 115 of the state constitution provides a fiscal year for all state offices. These two provisions alone show that the office of the state tax collector is operated on an annual basis and not on a four-year basis.

When both the constitution and the statute specify a fiscal year for the office of the state tax collector, it must follow that when the statute directs the balance or excess of commissions to be paid into the treasury it can only mean that this payment shall be made at the end of the fiscal year because of the well known meaning and use of that term.

Applicable statutes:

Section 115 of the constitution; Chapter 71 of the Laws of the Special Session of 1928; Section 7065, Code of 1930; Section 7066, Code of 1930.

Statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government, and such officers are entitled only to what is clearly given by law.

46 C. J. 1019.

Where by the law creating the offices or otherwise the time for accounting is expressly fixed, that construction would, of course, govern. Where, however, no such time has been fixed it would be the duty of the officer in analogy with that of a private agent to account upon lawful demand, and at all events within a reasonable time.

Meechem, Public Officers, sec. 910.

We do not know any rule of public policy or of practical experience which requires that where a statute allowing an officer's compensation admits of two interpretations, the words should be construed liberally in favor of the officer and not strictly in favor of the state. The well known abuses under the fee system by which the government has been defrauded of large amounts through unconscionable charges, and the lax administration of the law in this respect, would seem to require a strict interpretation in favor of the state rather than in favor of the officer.

U. S. v. Clough, 40 F. 813.

If a statute which appropriates or authorizes the appropriation of money for the payment of a salary to a public officer or employee is indefinite, so that it is uncertain whether the legislature intended to devote a larger or a smaller sum to that purpose, the doubt should be resolved by adopting the smaller amount, as the interest of the public, other things being equal is superior to that of an individual.

McAlpin v. Chatham County, 107 S.E. 74; Tyrrell v. New York City, 53 N.E. 1111.

A recognized rule of statutory construction is that a public officer cannot demand any compensation for his services not specifically allowed by statute, and that statutes fixing such compensation must be strictly construed.

Holman v. City of Macon, 137 S.W. 16.

There is no general uniformity throughout the states touching the beginning of the fiscal year. A fiscal year is simply the year embraced in the annual term of the opening and closing of financial accounts.

Bank v. Reilly, 156 P. 747; Moose v. State, 5 S.W. 885; State v. Cornell, 75 N.W. 25.

The legislature must have intended that his fees should be calculated on collections made with reference to a single fixed period.

State v. Cornell, 75 N.W. 25.

The sheriff is not entitled to retain separate fees for each judicial district where the county has two districts, on the ground that the tax collector may not retain commissions in excess of those expressly allowed by the statute.

State v. Welch, 134 Miss. 315, 98 So. 851.

It appears clearly that the state tax collector had no right to use commissions earned in one year for the payment of salaries and expenses in a subsequent year.

J. H. Sumrall, of Jackson, for appellee.

It is obvious that the state's first interest is in the eighty per cent collected by the state tax collector, for her benefit, the collection of which eighty per cent is the reason for the existence of the office. These reports so requested are primarily required for keeping strict account of this eighty per cent.

The state's real interest is is the eighty per cent, for the collection of which he contracts with the state tax collector, and it is only after the state tax collector has paid all legal obligations arising from the administration of his office, for his term that the state asks for the residue of said twenty per cent.

The very letter of the law confines the deputies of the state tax collector to commissions out of collections made by them, and not to compensation for the period of time in which such collections were made, the only reference to time being intended to regulate the rate at which said deputies are allowed to draw their compensation.

There was no reference to fiscal year in section 4748, Code of 1906, nor any other reference to any time for making settlement of the commissions collected, because no settlement was required to be made of funds that belonged wholly to the officer.

There is likewise no reference to fiscal year in section 7066, chapter 71, Laws of 1928, Extraordinary Session, section 6999, Code of 1930, which is the only provision in the statute dealing with the disposition of commissions allowed to the state tax collector, the one and only provision in the statute dealing with the disposition of said funds, being to pay the balance of such commissions into the state treasury, after he has paid all the expenses incident to the discharge of the duties of his office, and all attorney's fees, and retained the sum of five thousand dollars per annum for his salary, and paid to his deputies, at the rate not to exceed five thousand dollars per annum, out of the amounts collected as a result of the services of such deputies.

The state tax collector has the right to expend fund collected as commissions in a previous year, in defraying the expenses of the office.

White v. Miller, 157 Miss. 114.

Flowers, Brown & Hester, of Jackson, for appellee, American Surety Company.

This office when first created was called the "revenue agent," chapter 162, Hemingway's Code of 1917, provides for the duties, limitations, settlement and compensation of this office.

Section 7065 provides how settlement shall be made.

Section 7066 provides what compensation the revenue agent should receive for his services.

Under the statute, the revenue agent is entitled to recover for the state eighty per cent of the amount due by the defaulting officer and for himself twenty per cent of the amount. The state has no interest in his commission of twenty per cent.

Miller v. Henry, Insurance Commissioner, 139 Miss. 669.

The state has no interest or right in the tax collector's twenty per cent commission until after he has paid his expenses, his salary at five thousand dollars per annum and his deputies' salaries at the rate of five thousand dollars per annum. Then the balance of such commission shall be paid into the state treasury and become the property of the state.

The state tax collector is vested with full authority to be exercised in good faith to pass on and allow out of the twenty per cent commissions his own salary, the salaries of his deputies, and the expenses of his office.

Miller v. White, 157 Miss. 114, 126 So. 833.

Salary is generally regarded as a periodical payment dependent upon time; while fees depend on service rendered.

State v. Bland, 136 P. 947.

The compensation of public officers is sometimes made to depend on fees for services rendered or on commissions on moneys officially passing through their hands. Where compensation is paid by the fee system, or on the basis of the amount of business done, or of public moneys passing through the officer's hands, it is not unusual to have a maximum sum fixed beyond which the officer is not to receive any emoluments. In lieu of a fixed maximum the law may permit a public officer to deduct and retain a certain percentage above his maximum before paying the balance into the public treasury. As long as the compensation rests on the fees collected by the incumbent, the law recognizes his right of ownership in the fees accruing for services rendered.

22 R. C. L. 527, sec. 219.

An officer is entitled to be paid his salary for each year out of the fees earned during the term of his office, and the excess of fees in a subsequent year could be applied to a deficit in a preceeding year.

Zeigler v. Lancaster County, 42 Pa. S.Ct. 221.

By a careful analysis of the language of the statute it is plainly seen that it is contemplated that the "balance" referred to, which is to be paid into the state treasury, is the balance which remains at the end of the term. If the intention of ...