Gully v. Lincoln County

The Denkman Lumber Company, a corporation, was the owner of certain real and personal property in Lincoln County upon which taxes for the year 1933 had been legally assessed, these taxes amounting in the aggregate to the sum of $3122.21. The record does not disclose what part thereof was on the realty and what part on the personal property. The owner did not pay any part of these taxes on or before February 1, 1934, nor on or before May 1, 1934; and before the action by the state tax collector, next to be mentioned, the sheriff had taken no steps to distrain and sell the personal property or to sell the realty, although otherwise the sheriff was actively engaged in receiving and collecting taxes. On June 4, 1934, the appellant state tax collector filed an action in the circuit court in said county against the taxpayer demanding a personal judgment against it for the stated amount of taxes. On July 31, 1934, the owner paid to the sheriff $2690.05 on said taxes, and after the sale of some of the property on the third Monday in September, 1934, the owner paid the remainder by way of redemption. Thereupon the first action by the state tax collector was dismissed. The present action is by the state tax collector to recover *Page 792 his alleged twenty per cent commission on $2100.45, being that part of the $2690.05 which went to the county. On the trial the circuit court denied recovery and dismissed the action; and the state tax collector has appealed. As heretofore held by this Court, see Enochs v. State ex rel. Robertson, 133 Miss. 107, 143, 97 So. 534, there is an implied requirement in Section 135, Constitution, 1890, and ad valorem state and county taxes shall be collected by the sheriff. In consequence, it was expressly stated in Robertson v. Shelton,127 Miss. 360, 369, 90 So. 83, that it is primarily the duty of the county tax collector, that is to say the sheriff, to collect these taxes. Since this primary duty is one implied in the Constitution itself, no statute can make it a primary duty of some other officer. It follows, therefore, that no other officer can be allowed to intervene in the matter of such collection until the elapse of the full time which the law has allowed to the sheriff as county tax collector to pursue and complete the means which he has under the law to enforce the collections, that is to say, under the usual and normal plan or scheme provided by the general statutes on that subject. For if any such intervention were previously allowed, the duty of the sheriff as a primary constitutional duty would be subverted into one which is inferior or subordinate to that of the intervening statutory officer. It would be, indeed, to permit a statutory officer to exercise a superior authority of censorship over a constitutional officer in respect to the constitutional duties of the latter, and in a measure to displace him if, in the judgment of the statutory officer, the constitutional officer was not proceeding with the discharge of his duties as diligently as the statutory officer deemed proper or requisite. If loss should occur to the state and county by reason of inexcusable negligence on the part of the sheriff, the proper remedy would be by suit against the sheriff and his bondsmen, not by attempting to take over the duties of collection, which, up to the time stated herein, belong to the constitutional functions of the sheriff. *Page 793 The full time allowed to the county tax collector to pursue and complete the means furnished him by the law for the full collection of state and county ad valorem taxes on land does not expire until the time for the making of the sales of the land. Such a period does not become one of finality, under the usual and normal plan or scheme of collection and the enforcement thereof until after the completion of the sales begun on the third Monday in September. There remains the question as to state and county ad valorem taxes on personal property. Section 1, Chapter 383, Laws Ex. Sess. 1932 and Section 1, Chapter 188, Laws 1934, provide that the first installment of ad valorem taxes, real and personal, shall be paid on or before the first day of February of each year, and the second and third installments on or before the first day of May and the first day of August next succeeding. And Section 5 and Sections 7 and 8 of said acts, respectively, provide that the default in the payment of the first installment shall mature all installments, and that thereupon "the tax collector shall proceed immediately to collect all installments of taxes then remaining in default and unpaid, by distress and sale of personal property liable therefor." Sections 5 and 9, respectively, of said acts provide further, however, that "any taxpayer in default may at any time prior to the sale of his property, real or personal, for such taxes pay the delinquent installment or installments of such taxes plus all fees, interest and costs accrued, and all necessary expenses and reinstate his installment payments and the balance of his installments of such taxes shall be due and payable as if such taxpayer had not been in default." It is apparent from the above provision that the power of the sheriff to make a sale of personal property under distraint for taxes is not with him as a finality until after August 1st. Up to that time the taxpayer has the right and power to interrupt and discontinue any such authority or any sale attempted thereunder. The sheriff has no final power, within his own hands, prior to August 1st *Page 794 to complete the means furnished him by law for the full collection of ad valorem taxes on personal property — or upon real property as for that matter — and hence, under the principle heretofore stated, the state tax collector is not authorized to intervene previously to the first day of August, nor for such a period of time thereafter as will be required for the sheriff to give the necessary notice and make the sale of the personal property in the manner required by law in the case of such sales. And since there is as much, or even more reason to give the sheriff until the third Monday in September to distrain and sell personal property as there is to give him until that time to sell lands, and because it is desirable that these periods be made definite instead of being left in a state of doubt, we hold that as to personal property ad valorem taxes the state tax collector is without authority to intervene until after the third Monday in September. The suit having been instituted by the state tax collector in June, it was premature, and no obligation to him by the county was thereby brought into existence; wherefore the judgment of the trial court was correct and must be affirmed. It is to be noted that we are not here dealing with a case where the taxpayer has denied all liability, as, for instance, where he claims an exemption, or that the assessment is void, or that for any alleged reason the warrant of the assessment is invalid, or the like. Cases of that kind will be dealt with as they arise. Affirmed.