Henry, Ins. Com'r v. Donovan

Smith, C. J., delivered the opinion of the court. This is an appeal from a decree overruling a demurrer to an original bill of complaint, and is for the purpose of setting the principles of the case. Chapter 189, ¡Laws 1924, provides for- a municipal “fireman’s disability and pension fund” for the relief of firemen thereafter in service becoming disabled because of such service or old age, and for the relief of the widows and children under sixteen years of age of firemen dying while in service, or who are retired because of certain disabilities. The statute imposes a tax on business done by insurance companies in municipalities *289 coming under its provisions to be collected by the insurance commissioner, and paid, by him, to the proper municipality, for appropriation by it to its fireman’s disability and pension fund. The cities of Greenville, Meridian, and Hattiesburg are operating under the provisions of this statute. The bill of complaint is against T. M. Henry, insurance commissioner, and was filed by the city of Green-ville, the mayor thereof, and its board of pensions, the city of Hattiesburg*, the mayor thereof, and its board of pensions, and the city of Meridian, its board of pensions, and two residents of Lauderdale county, B. G. Ragsdale, claiming and asserting certain rights as a fireman under the statute, and Mrs. W. IT. S. White, alleged to be the widow of a deceased fireman, entitled to the benefits of the fireman’s pension fund. The bill alleges, in substance, that the fire insurance companies, doing business in Mississippi, paid the insurance commissioner the taxes levied against them by the statute, on business done by them in the complaint municipalities, but that defendant, on the advice of the attorney-general that the statute is void, refuses to. pay to the municipalities the money so collected by him from the insurance companies; that the defendant threatens to return the money so collected by him to the insurance companies, and refuses to collect from them the taxes that will be due by them on the business hereinafter done by them in the municipalities. The bill further alleges that the names of the insurance- companies and the amounts paid by them to the defendant are unknown, to the complainants, and then sets forth: “That these complainants all have equitable rights and interests in the creation, maintenance, and proper distribution of said funds as aforesaid in'the carrying out of said system, but are without adequate remedy at law, as is manifest by reason of the nature of their several relationships as hereinbefore set forth, and unless proper division and allocation of said taxes now in *290 the band of said insurance commissioner be made by bim and paid into the several treasuries, as aforesaid, and sucb taxes be enforced and collected and distributed in the future as the same accrue, these complainants will suffer great loss, not alone to the extent of sucb taxes as may be thereby wrongfully lost to them and said funds, but also in that said system will be rendered impracticable and be destroyed, and that if actions at law against the insurance commissioner were attempted at this time because of the undisturbed taxes now in bis hands, it would lead to and require a multiplicity of suits, and complainants would find it difficult to determine the exact amount of sucb funds properly distributable to each city, as aforesaid.” The prayer of the bill is: “That, upon a final bearing hereof, this court ascertain and adjudicate the proper amount of said taxes on band, payable to the treasuries, respectively, of each of said cities, for the purposes hereinbefore mentioned, and enjoin said defendant against returning any of said taxes to said insurance companies, and against longer retaining, or refraining from distributing the same properly among said several city treasuries, and against failure to continue to perform and carry out bis official duties in connection with the reporting', enforcement, collection, and distribution of such taxes, hereafter accruing under said act; and complainants further pray for decree, in person, against said defendant, for the amount of taxes now on hand, properly distributable to said several treasuries, unless said defendant shall, within a short time to be fixed by the court, make such payments' and distribution into said several treasuries as this court may find to be proper in the premises.” Tbe parties will be referred to here as they were in tbe court below; that is, tbe appellant will be referred to as tbe “defendant,” and tbe appellees as tbe “complainants,” *291 One of the grounds of the demurrer is that the court below was without jurisdiction to hear and determine the cause. In support of the ruling of the court below it is said, first, that the complainants have the right to unite in a bill of complaint in equity, in order to prevent a multiplicity of suits,; and, if mistaken in this, that, second, this court, under section 147 of the Constitution, cannot reverse the decree, because of any mistake of the court below in assuming* jurisdiction of the cause. The bill, it will be observed, was filed by three separate and distinct groups of complainants, each group seeking to enforce a cause of action against the defendant in which the other two groups have no interest. It 'is true that all these causes of action depend, for their solution, upon the same question of law and similar questions of fact, but that alone is insufficient to warrant a resort to equity, in order to prevent a multiplicity of suits. Tribette v. Railroad Co., 70 Miss. 182, 12 So. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642; Telephone Co. v. Williamson, 101 Miss. 1, 57 So. 559. We will assume, but merely for the purpose of the argument, that if each group of complainants have the right to resort separately to equity, that all of them can unite in one suit. The ground on which we understand the complainants to claim that each group thereof could resort ’separately to equity are, first, that they have no adequate remedy at law; and, second, that they are entitled to a discovery by the defendant of the amount of money in his hands which, under the statute, he should pay over to each municipality, and to an accounting by him therefor. The relief sought by the complainants, other than a recovery from the defendant of the money he is alleged to have collected and to be unlawfully detaining from the municipalities, if they are entitled thereto, can be obtained as fully by a writ of mandamus as by a writ of injunction. As to the money which the defendant is al *292 leged to be withholding- from the complainants, the remedy at law of each of them is either a petition for a writ of mandamus commanding’ the defendant to pay it into the municipal treasury, or a personal action against him and his bondismen for the recovery of a judgment there-' for. This remedy by mandamus is adequate, unless a temporary injunction was necessary to prevent the defendant from returning the money to the insurance companies before a writ of mandamus could be issued. The bill does not allege any such necessity, and no temporary injunction was asked. The remedy by suit on the defendant’s bond is also adequate unless his bondsmen are insolvent, and they are not alleged so to be. The bill not only fails to disclose any necessity for a discovery by the defendant, but answer under oath thereto was waived. It -is true, the bill alleg’es that the amount of taxes collected by the defendant from the insurance companies is unknown to the complainants, but it contains no allegation or interrogatory, the answer to which by the defendant would disclose the amount of taxes, if any, which he has collected from "the insurance companies. Moreover, the bill shows no diligence, on the part of the complainants, to secure the information sought by means other than a bill of discovery. The defendant is a public officer. The amount of taxes, if any, which he has collected from the insurance companies should be a matter of record* in his office, and the bill contains no allegation that ■ the complainants called on the defendant for information as to the amount of such taxes and were refused. 18 C. J. 1069'. The jurisdiction of a court of equity over matters of account rests upon “ three grounds, to-wit, the need of-a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relation.” 1 C. J. 613. The bill, as hereinbefore stated, discloses no ground for a discovery, nor does it disclose that the account of the defendant with the complainants is' in any way complicated. In fact, it should be very simple, *293 for its items can only consist of the taxes, if any, collected by the defendant from the insurance companies. Assuming, for the purpose of the argument, that the relation of the defendant to the complainants is that of a fiduciary or trustee, within the meaning of the rule hereinbefore set forth, it does not appear from the bill, as it should, in order to invest equity with jurisdiction, “that an accounting is necessary to .determine the amount due” by the defendant. 1 C. J. 623. Section 147 of the Constitution can have no application unless the circuit court would have the power to permit the complainants to join as plaintiffs in one action against the defendant. Tribette v. Railroad Co., supra; Newton Oil & Mfg. Co. v. Sessum, 102 Miss. 181, 59 So. 9; Scottish Union Co. v. Warren Gee Lumber Co., 103 Miss. 816, 60 So. 1014. The three groups of complainants could not have joined in one petition for a writ of mandamus (Haskins v. Board of Supervisors, 51 Miss. 406; Ohlson v. Durfrey, 8 2 Miss. 213, 33 So. 973), and to cite authority for holding that they could not join in oiie action at law for a personal judgment against the defendant would be supererogatory. The court below, being without jurisdiction to try the cause, should have sustained the demurrer. Reversed, and bill dismissed.