Anderson v. Hawks

Cooper, J., delivered the opinion of the court. On the undisputed facts disclosed by this record, it would probably be sufficient to say that the appellee should not be required to pay the additional ten p,er cent, on the amount of his taxes, even though the collector would ordinarily 'be entitled to demand and receive it. If the tax-roll had been placed in the hands of the collector at the time fixed by law, it is far more than probable that, his taxes would have been paid long before the expiration of the period within which they were payable. His agent wrote to the collector early in October, inquiring what amount was due as taxes, but, the roll not then being in the hands of the collector, he was unable to give the desired information. Section 3794, code 1892, directs that a copy of the roll shall be delivered to the collector on the first day of October, but, in this instance, the roll was not delivered until November 14. Only one month and a day was given to the tax-payer in wMch to pay his taxes, instead of two months and. a half, as contemplated by the statute. The appellee resides in England, and his remittance to his agent for the payment of his taxes was received on the fifteenth of December, and all possible effort was made by the agent to pay the taxes that day. He placed the sum in the bank at Jackson in which the collector was, accustomed to make his deposits, and procured the bank to send a telegram to the collector, notifying him of that fact. The- collector, however, refused to recognize the deposit as payment, and demanded ten per cent, o’f the amount of the taxes as. damages. A month’s delay on the part of the officers of the state was counted for nothing, though it probably was the direct cause of the failure of the tax-payer to pay his taxes at [644] the time fixed by law, and a few hours’ delinquency by the tax-payer was seized upon to subject him to an onerous charge. But the demand of' the collector finds no support in law, in any view of the question. By § 2021, code 1892, the following fees are allowed to the collector of delinquent taxes : “ 1. To tax-collector; payable by the delinquent tax-payer alone: “ (a) Ten per centum on all taxes collected after the fifteenth of December, by distress or otherwise. “ (6) For each distress and sale of personal property to collect taxes, $1.00. “(c) For each delinquent poll-tax collected, $1.00. “ (d) For each conveyance of land sold to individuals for taxes, $1.00. “ (e) For advertising and selling each separately described subdivision of land sold for taxes, 25 cents. “ (/) And two per centum on amount necessary to redeem.” The argument of counsel is that the ten per centum referred to in paragraph (a) is in the nature of a penalty, imposed by law to incite the tax-payer to promptitude; or,'if mistaken in this position, then they insist it is additional compensation provided for the collector, to which he is entitled on all taxes received by him after December 15. That the ten per centum spoken of in the statute is not inflicted as a penalty, is settled by the case of Railroad Co. v. Love, 69 Miss., 109. It will be noted that the law does not- impose upon the collector the duty of collecting the additional sum,, and-it is not suggested by counsel for appellant that he may not release or forbear its collection at his pleasure. The true construction of the law is that set forth in Railroad Co. v. Love. It gives compensation to the officer for services really performed, and when these are not performed, compensation cannot be justly claimed. Wynne v. Railroad Co., 45 Miss., 569. [645] It is no reply to this to say that the same section also gives to the collector specific fees for each service performed by him. This suggestion strengthens rather than impairs the construction of the statute we have heretofore expressed, for if all other fees provided for by the section are clearly as compensation for services, the inference is a strong one that the per centum allowed is of like character. The language of the law is that the collector shall be entitled to receive from the delinquent tax-payer “ ten per centum on all taxes collected after the fifteenth of December, by distress or otherwise.” The words, “ by distress or otherwise,” obviously relate to the taxes on which the per centum is to be calculated, and not to the per centum only. The collector is entitled to ten per centum on such taxes as shall be collected by him after the fifteenth of December, “ by distress or otherwise.” Keeping in view the fact that the allowance is made as compensation for services, and that delinquent taxes'may be collected; (1) by distress of personal property (Code 1892, § 3802]; (2) by sale of land (Ib., §§ 3811-3815); (3) by certifying the assessment to other counties in which the delinquent may have property (Ib., § 3822); (4) by suit (Ib., § 3747); (5) by action on the bond required of transient traders (Ib., §3871), it is not difficult to discover the meaning of the words or otherwise, which, upon familiar rules, are to be construed as applying to matters ejusdem generis as the preceding particular words, a contrary intention not appearing. The collector had performed no duty or services in the collection of the taxes of the appellee, and was not entitled to the per centum claimed. The decree is affirmed.