State Revenue Agent v. Hill

Campbell, C. J., delivered the opinion of the court. This action was brought under the act of 1890, creating the office of state revenue agent, before it was superseded and repealed by the act of April 2,1892, on the same subject. There is no question of the right of the state, or any county, to maintain an action by virtue of § 557 of the code of 1880, but the question is as to the right of the revenue agent to do it, and its solution depends on whether it is conferred by law. Undoubtedly the act of 1890 was repealed by the code chapter taking its place on April 2, 1892, and the fourth section of the code of 1892, invoked by counsel for the appellant to save pending suits from abatement by the repeal of the law sustaining them, did not take effect until November 1, 1892. The blunder was committed of causing a number of acts, constituting parts of the code, to take effect immediately, without any saving clause, except one to become operative on November 1, 1892, after the mischief was done-in some-instances ; but, while no saving clause was adopted as to these acts, where the old law was re-enacted by the new, actions pending by virtue of the old did not fall, because the law, being continued as before, there was no instant when it was' not in force, and no gap into which the suits previously begun would fall. Anding v. Levy, 57 Miss., 51. Therefore, if this action was maintainable by virtue of the act of 1890, and the same right is continued by the act of April 2, 1892, constituting chapter 126 of the code of 1892, the‘action, did not fall merely by the transition from one law to another. The act of 1890 (Laws, p. 25) had*been the subject of re [111] peated examinations by us, and every word in it has been pondered to ascertain the import of all it contains, and we have no hesitation to declare that no other interpretation can be made of sections 2 and 8 of the act (and these alone, if any, contain the right), excluding the last clause of section 3, except that the power conferred has reference to .fiscal officers engaged in collecting revenues. The last clause of section 3 is general: “ Where there is public revenue of any kind whatsoever, due under any law of this state, which is délinquent, and which, for any reason, has escaped collection.” It is difficult to conceive of revenue being delinquent, for delinquency is predicable of persons only, 'and not of things, which cannot commit an offense; but this is merely verbal criticism, and the question is whether a liability under § 557 of the code of 1880 can be said to be revenue due under any law, and which has escaped collection,'and of this there are certainly serious doubts, generated by the language employed and its connection. Even if the action could be maintained under the former act, as it was repealed by the code chapter, the question arises as to a continuation of the law giving the action by embracing it in the new act. ¥e havé examined that with great care, and with anxiety to maintain the right of the revenue agent to sue in this class of eases, but have searched' in vain for the grant of power to sue for a liability to the state or county for a specific failure of duty, as provided for by § 557, code of 1880, and § 3849, code of 1892, in both of which specific provision is made for suit being caused to be instituted by any tax-payer who will become responsible for the costs of «suit. Yery large powers are conferred by chapter 126, but it contains no provision from which can be fairly deduced t*he grant of power to maintain this particular class of actions. The act shows a studied effort to confer very extensive powers on the agent, but a clear omission to embrace this particular, and, as we think, very proper one. Therefore, if it were conceded that this action was maintain [112] able under the act of 1890, it fell with the adoption of the code chapter, which does not contain any provision for such an action. But' it is urged by counsel for the appellees that the code chapter was not adopted in the mode prescribed by the constitution, and that it is not law. If this were true, it would not benefit the appellees, as must appear from what has been said, for there is more ground for the claim that the act of 1890 confers the right of action in this case, than that the code chapter .does, and, if the code chapter was not made law, the act of 1890 remained in force. But this objection is met and disposed of by the opinion of this court in Hunt v. Wright, post. A vigorous assault is made by the counsel for the appellees on the act creating the office of “ state revenue agent,” and it is argued that the whole legislation on this subject is unconstitutional, as introducing an officer unknown to the constitution, and'contrary to it, because all officers deemed necessary by the framers of that instrument were provided for in it, and this officer was not thus provided for. "We agree that the legislature may not invade or disregard the constitutional scheme for assessing and collecting taxes. It cannot substitute any other for those provided by the constitution for assessing and collecting. It cannot set aside or dispense with the officials provided by that instrument for these duties. It cannot create a right of action in order to confer it by reason of past transactions. There are many things it cannot do, which need not be specified now. But we do not agree to the proposition that the legislature may not create offices or agencies not provided for specifically by the constitution, the limitation being that there must not be any invasion of the plan of the fundamental law or any thing inconsistent with its provisions and their unobstructed operation. The power to create other offices than those^provided for by the constitution, subject to the limitation mentioned, results from the grant to the legislature of legislative power. [113] We are, therefore, of the opinion that the legislature had the right to create a state revenue agent, and to arm him with the power to bring any action which the state or any of its political subdivisions could bring. Further than this we are not now called on to go. It follows that, as the act of 1890 was repealed by that of 1892, and it does not contain a grant of power to sue for the liability claimed in this action, the action abated upon the adoption of the new law, whether it was sustained by the former law or not. Affirmed. ■