Miller v. Henry Ins. Com'r

*664 Anderson, J., delivered the opinion of the court. This case come up from the chancery court of the first district of Hinds county. Appellant’s predecessor in office, Stokes Y. Robertson, filed his bill against appellee T. M. Henry, insurance commissioner, and the surety on his official bond for various amounts alleged to have been collected by appellee as such insurance commissioner and not paid in to the state treasury by him as required by law. There was a trial on original bill and amendments thereto and answers and proofs resulting in a decree for appellant in the sum of five hundred seventy-three dollars and seventy-nine cents, from which decree appellant prosecutes this appeal. We will consider first the question whether appellee was liable for interest oh the amounts which he failed to pay in to the treasury at the times required by statute, but paid in during the progress of this cause for which he received credit by decree of the court. The statute provides that the insurance commissioner shall furnish the auditor, on or before the tenth of each month, a statement in detail of the license taxes received by him during the previous month, and shall pay to the treasurer the full amount so received. Section 2628, Code of 1906 (section 5094, Hemingway’s Code). It was shown that in the aggregate a large sum in license taxes collected by appellee was not paid in to the treasury as required by the statute. Appellant concedes, as contended by the appellee, that interest in this state is a creature of statute, and without a statute authorizing it, interest as such is not recoverable. But appellant contends that under our statute, section 2678, Code of 1906 (section 2075, Hemingway’s Code), which allows six per cent, interest on accounts, interest is recoverable in this cause upon the ground that the dealings between the state and appellant in his official capacity, as evidenced by the books and records in his office in connection with those in the auditor ’s office and the office of the state treasurer, showing *665 collections by him and payments into the state treasury, simply' constitute an account between appellee and the state in the meaning of that statute. Appellee contends that such dealings do not constitute an account in the sense of the statute, and there being no other applicable provision of the statute authorizing interest, therefore none is recoverable. One thoroughly well-established definition of an account is that it is a detailed statement of items of debit and credit arising either out of contract between the parties or some fiduciary relation. 1 C. J. 596, 597, sections 1 and 3. Chief Justice Shaw in Whitwell v. Willard, 42 Mass. (1 Metc.) 216, in defining what an account was, said among other things: “It implies that one is responsible to another for moneys or other things, either on the score of contract or of some fiduciary relation, of a public or private nature, created by law, or otherwise.” A public officer, required to collect and pay over public funds who makes default in payment at the time required of him, is liable for interest upon the amount so retained from the time when it should have been paid over. Mechem on Public Officers, p. 911; 29 Cyc. p. 1489; McPhillips v. McGrath, 117 Ala. 549, 23 So. 721. Appellee lays special emphasis on Railroad Co. v. Adams, 78 Miss. 895, 29 So. 996, as decisive of this question in his favor. That was a case in which the revenue agent sought to collect, from the Illinois Central Kailroad Company, delinquent taxes. The court held that interest on delinquent taxes was not recoverable, since interest was not allowed at the common law, and there was no statute allowing interest in a case of that kind. We do not think that case is in point. It certainly is not decisive of the question here involved. There was no contract between the railroad company and the state by which the railroad company undertook to pay the taxes it was justly due. And neither was there' any fiduciary relation between the railroad company and the state by virtue of which it became the duty of the former to pay the latter the taxes it was justly due. *666 In the present case there was such a fiduciary relation. Appellee was a state officer empowered to collect certain license taxes. He occupied a relation of trust toward the state. In fact, the predominant feature of his office was one of trust. His dealings with the state, evidenced by items of debit and credit required to be shown by the records of his office, constituted an account growing out of that relation. He was required by section 26-28, Code of 1906 (section 5094, Hemingway’s Code), to render monthly, on the tenth of each month, an • accounting to the auditor showing in detail the “taxes and licenses received by him. ’ ’ The auditor of the state is denominated by the Constitution (section 134) and the statutes on the subject of his duties as “auditor of public accounts.” And section 239, Code of 1906 (section 3498, Hemingway’s Code), prescribing in part his duties, is in this language: “It shall be the duty of the auditor to examine, state, settle, and audit all accounts, claims or demands whatsoever against the state, arising under legislative authority, and to issue to every claimant authorized to receive the same a warrant on the state treasury, under his hand and seal of office, making due entry and registry of all proceedings in books to be kept for that purpose, and carefully arranging, filing and preserving in his office all accounts, receipts, vouchers and papers touching the same. It shall also be his duty to examine, audit and settle the accounts of all public debtors and collectors of any tax or revenue due to the state; to require such debtors to render accounts and pay into the treasury all sums or balances due, and, on failure so to do, to institute proceedings against them. He shall require any material information, on oath, from any person or persons, party or privy to any matter relative to any account under examination. And he shall state and keep his accounts so as to show the amount of all warrants drawn by him on the treasurer, and for what service of item of public expense they were given; and he shall submit his *667 accounts and hooks to the inspection of the legislature or the Governor when required.”. Appellee also relies on Clay County v. Chickasaw County, 64 Miss. 534, 1 So. 753. But there is no support for him in that case. As to interest, that case simply held that Chickasaw county could not recover interest from Clay county for two reasons: First, because the statute creating the liability on which interest was claimed made no provision for interest, and second, because counties were not embraced in the general statute on the subject of interest. We hold therefore that the state’s claim against appellee consisted of an account coming squarely within the definition of an account given by Chief Justice Shaw quoted above, as well as the other authorities cited. The trial court found, and there was sufficient evidence to justify the finding, that appellee’s defalcation was not brought about by any moral turpitude on his part, but resulted from the fault of a trusted deputy. And as we understand the record, that fact was influential, if not controlling, with the court in relieving appellee from liability for interest for failure to pay over as required by the statute. Interest is not imposed as a penalty for wrongdoing, it is allowed by law on accounts for money overdue, and is allowed as compensation for its detention, whether such detention be in good faith or bad faith. Charging appellee with interest, when should interest begin to run? Appellant urges that interest was due from the dates at which appellee should have, under the law, collected the license taxes in question. We disagree with appellant in that contention. As held by this court in Eastin v. Vandorn, Walk. (Miss.) 214, Board of Supervisors v. Klein, 51 Miss. 817, and Railroad Co. v. Adams, supra, interest is the creature alone of statute. The legal rate of interest on accounts is six per cent, per annum, and accounts do not bear interest until they are due, unless there be a contract providing otherwise. Under the statute (section 2628, Code of 1906 [section 5094, *668 Hemingway’s Code]) appellee was required to make monthly accountings and settlements on the tenth of each month for the license taxes received during the previous month. Therefore his accounts were not due the state until the tenth of each month. And he is not liable on .the ground of neglect of duty for interest from the monthly settlement periods on taxes which could and should have been collected by him for the previous months. We hold that interest began to run from the time the monthly settlements were due .on collections actually made for the previous month. And we hold that interest should be allowed on what is known in the record as the W. L. Nielson collection of five hundred dollars and the Mississippi Fire Insurance collection of two thousand one hundred thirteen dollars and twenty-seven cents. There is no dispute about the other collections, which should bear interest. Another question in the case involves the right of appellant to recover his commissions of twenty-per cent of a collection of five hundred dollars, for which appellee made settlement after the suit in this cause was begun. Appellee paid the whole five hundred dollars into the state treasury instead of paying four hundred dollars in to the state treasury and paying to appellant one hundred dollars, his statutory commission or paying the entire five hundred dollars to appellant. The statute governing the compensation of the revenue agent is section 4748, Code of 190'6 (section 7066, Hemingway’s Code), which is in this language: “Neither the state nor any county, municipality, or levee board shall be chargeable with any fees or expenses on account of any investigation or suit made or instituted by the state revenue agent; and he shall not receive any salary; but he shall be entitled to retain, as full compensation for his services and expenses, twenty per centum of all amounts collected and paid over by him, and of the purchase money of all lands bid in for the state by him and sold by the land commissioner.” It was held in Adams v. Bolivar County, 75 Miss. 154, 21 So. 608, that the revenue agent, having given the re *669 quired notice, was entitled to his compensation whether suit had been brought or not, if his investigation was the cause of the money being paid over by the defaulting taxpayer, and that the revenue agent could not be deprived of his commissions, by the defaulting officer paying the money into the treasury. 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. Appellee had no right to pay the five hundred dollars into the state treasury. In fact, it would have been more regular under section 4739, Code of 1906 (section 7057, Hemingway’s Code), if the entire amount had been paid over to the revenue agent. He was authorized to collect it with or without suit, and, when collected, his interest in the collection was twenty per cent, of the amount. He was not required to pay the whole amount in to the state treasury, and then make claim against the state, if that could be done for his commission of twenty per cent. Appellee, by paying into the state treasury appellant’s commissions, did not acquit himself 'of his obligation under the law to appellant. He was due to pay that to appellant and no one else. We find no merit in the other contentions on behalf of appellant. Therefore, in all other respects the decree of the chancellor is affirmed. It is reversed, and remanded alone for the purpose of the ascertainment and allowance of interest in accordance with this opinion. Affirmed in part, and reversed in part, and remanded. Affirmed. Reversed and remanded.