State ex rel. District Attorney v. Greer

Cook, J., delivered the opinion of the court. This is an action begun in the chancery court by the state of Mississippi and Lincoln county, upon the relation of the district attorney, against J. F. Greer, tax collector of Lincoln county, and the United States Fidelity & Guaranty Company, surety on his official bond. Two hanks were made parties defendant, but, [566] inasmuch as there is no contest between complainants and the banks, no further 'mention will be made of the banks in this opinion. As we understand the allegations of the original and amended bills of complaint, it is charged that the tax collector is due the state and county a large sum of money for failing to pay over the taxes collected by him within the time required by section 4357 Code of 1906. As we gather from the pleadings, the suit is for the thirty per centum damages and interest on the various sums of money he had collected for state and county taxes, all of which, except stated sums deposited in the banks, he had paid at the time the bills were filed, but failed to pay the thirty per centum damages and interest which section 4357 of the Code requires him to pay, upon his failure to pay within the time fixed in the statute. The suit is therefore for the damages and interest alone, except as above stated. A demurrer to the bills was interposed by the surety, which was sustained by the court and complainants appeal. The exact question for us to decide is whether or not a surety on the official bond of a tax collector is obligated to pay the damages due by the collector i'f he fails “to pay over” any taxes collected- by him, within the time fixed by law. .The main argument in support of the decree of the chancellor is that section 4357 does not, in terms, fix liability upon the surety for the damages; that the statute penalizes the collector alone, and inasmuch as this court held in Adams v. Saunders, 93 Miss. 520, 46 So. 960, that section 4359 was repealed, and that “it was clearly an oversight in the legislature to bring forward the section with this clause in it, when the law reducing the penalty is brought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,” it necessarily follows that there is. nothing in the statutes authorizing a suit against the surety for the penalty. It will be [567] observed that section 4359 does not conflict with section 4357, except as to the amount of penalty for which judgment shall b,e given. "We think this court was eminently correct in Adams v. Saunders, supra, when it decided that judgment could not be rendered for the thirty per centum per annum damages, because that part of section 4359 was in conflict with the substantive law as fixed by section 4357. We do not understand that the decision in Adams v. Saunders goes so far as to hold that section 4359 was to be read entirely out of the Code. As we construe the decision, it was held that the legislative oversight consisted in bringing forward the clause of the old law which fixed the penalty at thirty per centum per annum. This construction harmonizes section 4359 with the preceding section 4357, and both will stand. It appears clearly that the legislature intended that suit was to be brought on the bond of the collector for his failure to pay over the taxes in time. This is what section 4358 provides, and section 4359 says that in such suits judgment shall be given for the damages due by the collector. Just here, we will say that we do not agree with counsel for appellee that the penalty cannot be recovered from the surety in this case, because the suit was not brought upon the notification of the auditor. That part of section 4358 which makes it the duty of the auditor to immediately notify the district attorney was not intended to be a condition precedent to the bringing of the suit. We believe that this is a correct solution of the apparent difficulties which arise by reason of the conflict between sections 4357 and 4359 of the Code, and gives expression to the manifest intent of the legislature to make the surety liable for the damages imposed upon principal for failing to perform his official duty. [568] The contention that the change in the time for settlement by the collector made by the legislature after the institution of this suit repeals the former statute is disposed of by section 1573, Code of 1906. We do not think the court erred in allowing a credit for commissions due the collector. Section 4359, Code of 1906.- There is no merit in the contention that no penalty can be imposed fdr failure to pay over the taxes collected after the collector was suspended by the Governor. We have carefully considered the very able and interesting brief for appellee, and do, not underestimate the strength of the arguments made therein, although we have not discussed in detail all of the points advanced in support of the chancellor’s decree. As we construe the statutes, the surety is required to make good the derelictions of the principal, and it was the intent of the legislature to make the payment of damages in default of payment within the time fixed by law the official duty of the tax collector. The decree will be reversed, and the cause remanded for further proceedings in accordance with this decision. Reversed and remanded.