State ex rel. Roberson v. Columbus & G. R. 129 Miss. 564, 92 So. 233

State ex rel. Roberson, Atty. Gen., v. Columbus & G. R. Co. et al.

[92 South. 233,

No. 22674.]

Taxaton. A suit to sell property for delinquent taxes is a coercive proceeding authorising 10 per cent, damages, one half to the county and the other half to the collector.

Where taxes properly assessed become delinquent, and suit is brought to collect and to sell the property of the delinquent taxpayer to satisfy such taxes, such suit is a coercive proceeding, and under the terms *565of chapter 394, Laws of 1930, the 10 per cent, damages accrue. Under chapter 133, Laws of 1930, the counties are entitled to one-half of •the 10 per cent, damages and the tax collector to the other one-half, and such damages may be recovered in an action or suit to collect the tax and fix a lien upon the property of the taxpayer, and sell its property to satisfy such tax.

Appeal from chancery court of Montgomery county.

Hon. J. G. McGowan, Chancellor.

Suit by the state of Mississippi, on the relation of Frank Roberson, attorney-general, against the Columbus & Greenville Railroad Company and A. T. Stovall, receiver. From a judgment in favor of the defendants, the relator appeals.

Reversed in part and affirmed in part.

Frank Roberson and F. II. Lotterlws, attorney-general, for the state.

By virtue of chapter 294 of the Laws of 1920, the tax collector was given fees for collecting delinquent taxes as follows: “Ten per centum on all taxes collected, on personal property when collected by distress and sale or when action has been begun to distrain or sell and ten per cen-tum on all taxes collected on real property when and after-such property has been listed for advertisement for sale.” Therefore, the damages on state, county and district taxes had to be demanded and collected and paid into the county treasury if the taxes were collected after there had been a distress, or sale or action had been taken to distrain or sell or action had been taken to have a commissioner sell all the property to enforce the payment of all the taxes.

Section 19 of chapter 122 of the Laws of 1920, reads as follows: “Personal property, when delinquent for nonpayment of taxes, shall be subject to distress and sale as now provided by law, and the penalties, damages, fees and costs shall only be collected when the property is dis-trained and sold or when action has been taken to distrain or sell and in case of real property, penalties, damages, fees and costs shall only be collected when and after the *566property has been listed for advertisement for sale as now provided by law for nonpayment of taxes.

Section 19 of chapter 122 of the Laws of 1920, and section 8 of chapter 128 of the Laws of 1920, require the sheriff and tax collector to collect all the fees, commissions and emoluments which the law provides for him to be paid by him into the county treasury, allowing him to retain for himself one-half of the ten per centum damages on delinquent privilege, personal and poll taxes, as appears from section 31 of chapter 122 of the Laws of 1920. Bo that, since these enactments of the legislature of 1920, the damages, when they accrue, no longer belong to the tax collector but they must be collected by him for the benefit of the county treasury, with the exception that he may retain one-half of the damages on the personal taxes. Since the statute requires him to sell land and certain personal property belonging to a railroad before selling the real estate and rolling stock, and requires a sale of rolling stock, before right of way, it follows that the legislature intended in cases where a delinquent taxpayer was a railroad company, that the damages rvould accrue to the county and the tax collector, whether the taxes were upon real property or personal property.

It is respectfully submitted that any other application of the law providing damages to the peculiar directions of the statute directing how taxes shall be enforced as against a railroad company would be inconsistent with the general plan of compensating the tax collector in cases where he found real estate other than road bed, available to sell first. The distribution of the damages under the Laws of 1920 was subject to conditions very unlike those prevailing prior to 1920. It would have been the duty of the attorney-generals to proceed against the tax collector for the county if the tax collector had enforced the taxes without the damages.

The damages would have been earned if the tax collectors had filed suits to enforce payment upon grounds identical with the grounds set forth herein. Bee Anderson- v. *567 Haws, 70 Miss. 643,. (645). Hence, the damages were earned when the attorney-general on account of the peculiar equities involved, and the great needs arising, to work out the tax from the property a vail aide proceeded for all the taxing and the tax collectors.

This court in Miller v. Land Company, 74 Miss. 110, said: “We cannot concur in the view that additional compensation cannot he demanded by the officer unless the collection is made by an actual sale of the property.” It was there held that the damages accrued where the land had been listed. And in Adams v. Bolivar County, 75 Miss. -154, tills court approved the doctrine announced in Miller v. Land Company, saying: “The tax collector had entered up-oil the doing of the act which entitled him to damages, so here the revenue agent had entered upon and had done all he could ordinarily do . . .” “We said in the Miller case: 'There is no point in the proceeding once begun at which it may be said that the right to cbmpensation has attached rather than at another. . . .’ Whether the collection is made by virtue of a proceeding initiate or complete it is by the proceeding it is made and the right to compensations exists, because otherwise, whether it will be payable at all, depends upon the will of the delinquent, rather than upon the letter of the law.” Cases which on casual consideration, might be thought to be at variance with the doctrine announced here are: Wynne v. Railroad, Company, 45 Miss. 569; Railroad Company v. Love, 69 Miss. 109, and Anderson v. Havies, 70 Miss. 639.

However, on close reading, it soon appears that they are not in point since this proceeding is brought by virtue of the Acts of 1920 providing that the damages shall accrue and be collected when action has been begun tp sell. The cases last named were all decided at a time when the statu tory law was quite different. In addition to this, Anderson v. Hawks, was a very harsh case, where the assessment was long delayed and the tax])ayer lived in England, and bad placed the money in a bank for the taxes and the collector had refused the check as not being a satisfactory *568payment to him. The taxes were delinquent and action was brought for the sale of the property the money was realized at the end of the litigation and these facts constitute the center and circumference of this controversy.

Wherefore, it would seem that the damages had been earned for the benefit of the counties, municipalities and tax collectors. These statutes should be liberally construed in favor of these rendering the services, because our statutes impose no .'interest on delinquent taxes; as a consequence of Avliich this delinquent taxpayer enjoyed a long-period after other taxpayer’s in these counties had paid, and throughout this period stood charged with no interest. By means of this proceeding its property was kept together instead of being- disrupted by many seizures, and it is respectfully submitted that, having enjoyed these benefits and made no. offer to pay until the time arrived within which the chancery court said payment must be made, ap-pellees are estopped in equity to assert the proposition that the damages were not earned.

By section 5983 of Hemingway’s Code, it is provided that: “The tax collector shall collect municipal taxes during- the time and in the same manner and under the same penalties as the state and county taxes are collected. He shall, where not othemvise provided in all particulars, be governed by the general revenue laws of the state so far as applicable in making- the collections . . . and shall receive only such commissions or compensations as may be allowed by ordinance.”

The word penalties here shall be taken in the same sense that the word damages is used in the interpretation of those various revenue statutes, for the reason that there are no penalties incident to the tax collection on other than the costs, fees and commissions. There being- no other meaning for the word, it is manifest that the legislature intended its use in this sense. Therefore, the damages should be enforced on the municipal taxes herein for the use and benefit of the several municipalities and such of *569their tax collectors as have been allowed commissions or compensations by ordinance.

That the decree of the court below denying damages on the taxes should he reversed and this cause remanded for allowance of such damages, or that judgment should be given here by a calculation from the face of the pleadings and decree is evident.

Gardner, McBee & Gardner, T. 0. Catchings and Carl Fow, for appellee.

This suit is now under section 2197 of the Code of 1906, as amended by chapter 294 of the Acts of 1920. Section 2197 in the chapter on “Fees” is a reproduction of section 2021 of the Code of 1892, is a reproduction of section 524 of the Code of 1880. The language of all three of these sections, until amended by the Acts of 1920, is identical. In order to determine the right of complainant to recover on this appeal, we invite a comparison of section 2197 of the Code of 1906 with section 2197 as amended by the Acts of 1920. Section 2197 before being amended was as follows: “1882 (2197). Fees for Collecting Delinquent Taxes. — 1. To Tax Collector; Payable by delinquent tax payer alone, (a) Ten per centum on all taxes collected after the fifteenth of December, by distress or otherwise, etc.

Section 2197, as amended: This section, as amended by chapter 294 of the Acts of 1920, reads as follows: “2197, (2021). Fees for collecting delinquent taxes: 1. To the tax collector; to be collected and accounted for as required by law, payable by delinquent tax payer alone, (a) Ten per centum on all.taxes collected on personal property when collected by distress and sale, or when action has been begun to distrain or sell and ten per centum on all taxes collected on real property when and after such property has been listed for advertisement for sale.

There is quite a difference, as will be noticed by comparing these two statutes. The first statute or section 2197 *570provides that the tax collector shall collect ten per cent on all taxes collected after the fifteenth of December by dis tress or otherwise. Our supreme court has construed the word “otherwise” in this connection as' meaning, by suit. Anderson, v. Hanches, 70 Miss. 645.

This is not a suit by the tax collectors of the counties, nor of the municipalities, but, an independent suit, brought, by the attorney-general, of his own volition, in the name oi the state of Mississippi, and not at the request of the tax collectors, for their benefit, as we have said.

Section 2197, as amended by chapter 294, of the Acts of 1920, provides that ten per centum damages shall be allowed the sheriff or tax collector only: (1) when collected on personal property “by distress and sale” or “when action has been begun to distrain or sell” and on real property, “after such property has been listed for advertisement for sale.”

This statute, by express terms, requires that the tax collector before the ten per centum damages accrue, must either levy upon and sell the personal property, or must have begun by distress to sell personal property, and on real property, such property must be “listed for advertisement for sale.”

The various tax collectors could, any time after the fifteenth of December, 1920, have either levied upon personal property, as the sheriff and tax collector of Sunflower county, and the municipal tax collector of town of Indian-ola, did, or they could, had they seen fit to do so, have advertised for sale the real estate belonging to appellee, on the regular sale day, to-wit, the first Monday of April, 1921, but this they did not do. Nothing was done by these tax collectors, except the two we have mentioned, toward enforcing the payment of this tax, by either distress or personal property or advertisement for sale of real estate,

This being true, we are at a loss to understand how the state of Mississippi, on the relation of the attorney-general, can now, unsolicited and uninvited, claim damages for these collectors. So far as the record shows, the various *571tax collectors of the counties and municipalities, evidently had some good reason why they did not either distress the personal property, or advertise the real estate for the payment of these taxes, but not having done so, it may be that they did not do this, because they realized the financial condition of appellee.

We submit, that it will he time enough for this court to protect the interests of the tax collectors, when the tax collectors request this to be done, and we wish to add further, that the very section now invoked, under which ax?-pellant claims the right to collect damages, provides that these damages shall be paid “'to the tax collector, and not to the state of Mississippi.

Fees.

It may be of interest and benefit to take into consideration the definition of the word “Fees.” Corpus Juris says that in many instances, as in the case at bar, the word “Fees” is synonymous Avith the Avord “Commissions.”, so, if Ave substitute in this case, the Avord “Commissions” for “Fees,” there can be no doubt as to Avhat the legislature meant when.it says, in the heading of this statute, .under AAdiich this suit is brought: “fees for collecting delinquent taxes.” Substitute the word “Conimissions” for “Fees” and Ave have: “Commissions for collecting delinquent taxes,” not for bringing suit. See Acts 1920, page 425.

This proceeding is iioav under section 2197 as amended by chapter 294 of the Acts of 1920, and, therefore, any right that complainant may have to recover ten per centum dam - ages, will be dependent entirely upon that statute.

Officers are never entitled to fees unless they are given by some statute. Hendricks v. Supervisors, 49 Miss. 612; Bourdeaux Warren County, 66 Miss. 231.

The first time section 524 of the Code of 1880, brought foi-Avard as section 2021. of the Code of 1892, and again brought forward as section 2197 of the Code of 1906, Avas construed, by this court Avith reference to fees of tax collectors, Avas in the case of Yazoo & Mississippi Valley Railway Company v. Love, 69 Miss. 109.

*572In that case, the tax collector of Yazoo county brought suit to recover from the Yazoo & Mississippi Valley Railroad Company, ten per centum damages on delinquent levee taxes, alleged to be due because the railroad company refused to settle through that officer, but, settled directly with the levee board. There was a judgment against the railroad, but on appeal to this court, the case was reversed.

The court, in that case, followed the decision of this court in the case of Wynne, Ádm’r., v. M. & T. R. R. Go., 45 Miss. 569, in which the court there held that: “Commissions are given as a compensation for services really performed; and when these are not performed, compensation cannot be justly claimed.” Justice Woods adds, in this case, after quoting from the decision in the Wynne case: “We know of no such service by an officer as constructive service. There must be an actual collection of taxes, not a constructive collection, to entitle to compensation.”

The rule announced in the Love case, was approved and • reannounced in the case of Anderson v. Hawltes, 70 Miss. 639. The decision in Anderson v. Hawkes, just referred to, was approved by this court in the case of Miller v. Delta Pine A Land Go., 74 Miss. 110.

The last case in which our attention has been called, where this court has been called upon to construe section 2197, as amended is the case of Darnell v. Smith, 115 Miss. 547.- In that case, the tax collector •advertised the land for sale, but did not sell it, and complainant in that case denied that the tax collector was authorized to recover any fees because of the failure to sell. This court, however, held that the sheriff was entitled to his fees after he had advertised the land, although he made no sale.

Of course, this case has no bearing on the instant case, because there was never any attempt to distrain, or advertise, or sell any of appellee’s property, by any of these various tax collectors, except the town marshal of Indian-ola, and the sheriff of SunfloAver county.

As we have seen, the language of the statute excludes, or precludes, the idea that by the mere bringing of this suit, *573the state of Mississippi, on relation of the attorney-general, is entitled to recover any ten per centum damages. The statute in express terms provides, that this ten per cen-tum damages shall only be collected on personal property by “distress and sale,” or when an action has been begun to distrain or sell personal property and on real estate, “after the property has been listed for advertisement for sale.”

In other words, the legislature in this act was particular to enumerate the circumstances and occasions under which, and for which, the various tax collectors would be entitled to recover compensation. We note that counsel for appellant, in his brief, refers to the case of Adams v. Bolivar County, 75 Miss. 154.

This case, we submit, has absolutely no bearing on the case at bar, for the reason that in the Bolivar county case, the state revenue agent set the machinery in motion, on account of which the tax collector settled, and it was but right and proper that the revenue agent should be allowed his fees as the result of his efforts, which brought about the settlement. In that case, the revenue agent Avas acting for himself. In this case, the tax collectors have never made any sort of effort to collect these taxes, and, having-failed to do this, we certainly contend that the state of Mississippi has no right, on this appeal, to ask for something which the tax collectors themselves never asked, and who are not complaining. We do not understand how complainant can charge or contend that there are any damages due, when, as a matter of fact, none of the tax collectors, excepting the tAvo in Sunflower county ever made any sort of effort to collect the taxes, and these have been paid.