Adams v. Saunders

Williamson, Special Judge, delivered the opinion of the court. It stands decided in this cause that tax collector Saunders and the sureties on his official bond must pay into the county treasury the money collected by him as tax collector in the years 1890 and 1891, amounting to $2,370.31. This was determined by the opinion of this court on the final appeal, which reversed the decree of the chancery court dismissing the suit, and remanded the cause, with instructions to the lower court to enter [534] judgment for the sum of $2,370.31, with such damages as are allowed by law, to be ascertained by an accounting. The question whether damages are allowed by law, and the ascertainment of the amount of damages, if any, were left to be determined by the lower court. After the cause was remanded, the lower court entered a-decree against Saunders and his sureties for $2,370.31, and added thirty per cent damages, and charged interest at six per cent per annum on the principal and damages from the time the money should have been paid to the date of the decree, the sum total being $6,135.36. From this decree the revenue agent appealed, and the defendants took cross-appeal. The questions raised on this appeal and cross-appeal are as follows: First, should not the lower court have charged damages at the rate of thirty per cent per annum ? Second, should any damages at all have been charged, under the facts in this case ? Third, if damages were chargeable against the tax collector, were they not legally remitted by the governor and attorney general ? We answer unhesitatingly that it would have been error to have charged thirty per cent per annum damages in this case, even if it be admitted that the money withheld had been due the county for taxes collected. While the law in force at the time the settlements should have been made by the tax collector, in 1890 and 1891, imposed a penalty of thirty per cent per annum damages for failure to report and pay over taxes collected and due the county, when this suit was brought this law had been repealed by the act of 1904, and the penalty reduced from thirty per cent per annum dam.ages to- thirty per cent damages and six per cent interest on the principal and the damages. This had been the law since 1904, and is now the law. We cannot assent to the contention of counsel for the revenue agent that the latter clause of section 548, Code 1880, and the corresponding section brought forward in the Codes of 1892 (section 3840) and 1906 (section 4357) nullifies the act of 1904, which is brought forward as part of section 4357 of the Code of 1906. [535] These sections deal with matters of practice. After providing that suits to recover taxes not reported and paid in by the collector shall be preference cases and tried at the first term, it is-provided that judgment shall be given for the amount of taxes collected and not paid in, “with thirty per cent per annum damages aforesaid.” This section providing for thirty per cent per annum damages being repealed by the act of 1904 (Laws 1904, p. 216, e. 161), this clause, providing for judgment “with thirty per cent, per annum damages aforesaid,” must fall with it. The manifest intention of the legislature in all this legislation was-to change the penalty from thirty per cent per annum to thirty per cent and six per cent per annum. It was clearly an oversight in the legislature to bring forward the section with this-clause in it, when the law reducing the penalty is brought forward at the same time. Both cannot consistently stand. The incidental clause must yield. This disposes of appellant’s third assignment of error. As to the first and second assignments of error, we are of the-opinion that the lower court did not err in permitting appellees to file an amended answer, with exhibits thereto, and did not err in refusing to enter judgment on the mandate of this court, without further pleadings or additional evidence. We will dispose of the errors complained of by cross-appellants in discussing the second and third questions announced in the opening of this opinion to be raised on this appeal. “Should any damages at all have been charged against Saunders under the facts of this case ?” We think not. The statute imposing-the damages is highly penal, and must be strictly construed, and the conduct of the offender must be shown to come strictly within the terms of the law imposing the penalty. The object and purpose of the enactment of the statute imposing this heavy penalty was to force the prompt report and payment into the treasury after collection of all taxes due the county and state. In the-agreed statement of facts, it is admitted that the funds withheld by Saunders were not taxes due the county, in the sense of the [536] word “taxes” used in the statute. One-third of the amount sued for was damages collected by the collector after December 15th, which would not go to the county, if rightfully collected, but to the tax collector. One-third of the amount was money paid to the county tax collector when the taxes were due to a separate school district and were not to be collected by the county tax collector. The county levy by the board of supervisors was $15 per thousand on all property in the county, except that in the separate school district, on which the levy was fixed at $12 per thousand. Failure to note this difference in the levy, and the calculation of the taxes within the school district at $15 per thousand, brought into the hands of the county- tax collector money received from the taxpayers which was not due the county. One-third of the amount sued for came into the hands of the tax collector by the overpayment of the true amount of taxes due by a number of taxpayers, caused probably by miscalculation. All the money collected in the three ways above-set out was properly receipted for by the collector and was properly entered on his cash book. All the taxes due the county, as shown by the tax books, assessment rolls, and county auditor’s books, were promptly paid into the county treasury by Saunders; but these funds were not. Having collected these funds in his official capacity as tax collector, it was Saunders’ duty to pay it into the county treasury, and he will not be heard to make the defense that it was not due the county as taxes; yet we are of the opinion that the thirty per cent damages is not imposed by the law for non-payment of money collected in this way. But, even if this money had been collected and was due the county as taxes legally levied and assessed, it was error to charge the thirty per cent damages in view of the fact that the governor and attorney general, in'accordance with the statute, made the proper certificate and the damages were remitted by the county auditor. There is nothing in the statute requiring the governor and attorney general to make the certificate at any particular time. It may be [537] done at any time before judgment or decree is rendered. The amount sued for being money had and received by Saunders as tax collector, and 'which he should have paid into the county treasury, it will bear the legal rate of interest from the date it was due down to the date of payment. The decree' of the lower court is reversed, and the cause remanded, with instructions to the lower court to enter decree against Saunders and the sureties on his official bond for the ■sum of $2,370.31, with interest at the rate of six per cent per annum from the date when it was the duty of Saunders to have paid it into the county treasury. Let the costs of this appeal ■be taxed against the appellant. Reversed.