State ex rel. Roberson v. Columbus & G. R.

Ethridge, J., delivered, the opinion of the court. The appellant, state of Mississippi, through the attorney-general, filed suit against the appellee for state, county, and municipal taxes due for the year 1920. The assessment of the said railroad company Avas made by the State Tax — 574 — Commission, and.objections were made to said assessment so made by the railroad company. A hearing was had before the Tax Commission on such objections, and after such hearing the objections were overruled and the assessment made final.. The taxes were not paid by the said railroad company within the time required by laiv, and suit was filed by the attorney-general on behalf of the state and several counties and municipalities and taxing districts for the amount of taxes due and damages thereon. After the filing of the suit a receiver was appointed for the railroad company by the federal court. Thereafter an amended bill was filed, setting out the fact of the assessment and the fact that the taxes had not been paid, setting forth the amount due to the state, to the several counties through Avhich the railroad line extended, and the municipalities and taxing districts respectively, and setting forth that if would be necessary, unless suit ay as filed, for each of the said counties, municipalities, and taxing districts to make separate distraints or bring separate suits, and that there would arise conflicts of priority of liens, and that such seizures or suits would interrupt the general business of the railroad company and the commerce carried on thereon and interefere Avith the carrying of the United States mail, and would create a multiplicity of suits. The bill prayed for- a judgment for the amount of taxes and for a sale of the property of the railroad company as provided in the statute by making a sale of the property as' a unit instead of by piece-meal, and also prayed for ten per cent, damages on the amount of taxes due to the state. The answer of the defendant admitted the allegations of the bill, except it denied liability for the ten per cent, damages, claiming that it was not liable to either the state, county, municipality or taxing districts for such damages. The chancellor rendered judgment for the taxes, but denied the right to recover the ten per cent, damages except in the county of Sunflower and the town of Xndianola where the actual levy or distraint had been made upon the property of the railroad company by the sheriff for the county and — 575 — state taxes and by the marshal for the town taxes, and the attorney-general appealed for the purpose of having this court settle the question as to whether the defendant was liable to the ten per cent, damages by reason of the suit having been brought before the payment of the taxes. The question presented for decision is whether a delinquent taxpayer is subject to the ten per cent, damages where the taxes are delinquent and suit has been brought to enforce the payment of the taxes. Chapter 294, Laws of 1920, to amend section 2197, Code of 1906, the pertinent part of which reads as follows: “2197 (2021) Fees for collecting delinquent taxes: “1. To the tax collector, to be collected and accounted for as required by law, payable by delinquent tax payer aione. “(a) Ten per centum on all taxes collected on personal property when collected by distress and sale, or when action has been begun to distrain or sell and ten percentum on all taxes collected on real property when and after such property has been listed for advertisement for sale; provided no penalty shall attach until thirty days after a legal assessment has been approved.” Chapter 122, Laws of 1920, provides for the salaries of county officers. Section 19 of that chapter as amended by chapter 123, Laws of 1920, reads as follows: “Sec. 19. All fees and all commissions and other emoluments which the law now provides may be demanded, received and taken by the sheriff and tax collector, chancery clerk, and circuit clerk, shall be collected by each, respectively, but all said commissions, fees and emoluments shall hereafter be paid by the said officers, respectively, into the county treasury. Each of these payments shall be paid into the county treasury, and into levee board treasury, those commissions, fees and emoluments collected from levee taxes, by the twentieth (20th) day of each calendar month, and shall be each accompanied by an affidavit of each of said officers averring that he has turned into the proper treasury all fees and commissions and emoluments — 576 — which he has actually collected in the preceding calendar month, and which the law uoav requires him to collect, or that it may be lawful for him to demand, receive, collect and take, and that he has collected all such fees and commissions as were reasonably possible of collection in the preceding month. All fees or compensation to be paid by the state t° the county assessor under chapter 193 of the Laws of 1910 or any amendment thereto shall be paid by the state treasurer into the general county fund of the respective counties.” Section 31, chapter 11, Laws of 1920, reads as follows: “That nothing in this act shall prevent the sheriff and tax collector from receiving in addition to his salary herein provided, fifty per cent, of all damages heretofore given him under law, for the collection of delinquent, privilege, personal and poll taxes, and the remaining fifty per cent, of such damages shall be covered into the county treasury.” It will be seen from these sections that the ten per cent, damages is allowed on all taxes collected on personal property by distress and sale or when action has been begun to distrain or sell as applied to personal property and ten per cent, damages on all taxes collected on real property when and after' such property has been listed for advertisement for sale, and that the sheriff and tax collector is allowed one-half of the ten per cent, damages as personal compensation, and that one-half of the damages is to be paid into the county treasury. The fees for constables and marshals prescribed by section 2184, Code of 1906, as amended by the Laws of 1914, chapter 258, Hemingway’s Code, section 1865, (m), which provides that for other services the same fees allowed sheriffs for similar services; there being no specific provision in this section for tax sales, where the marshal is tax collector for a municipality Ms fees will be the same as the sheriff for collecting taxes, in the absence of statutory provision fixing a different basis. ' It will be noted that chapter 294, Laws of 1920, changes the verbiage of the Code, and makes an action for distraint — 577 — or sale an express coercive action which will entitle the collector to ten per cent. The bill prayed for and the decree allowed a sale of property for the collection of the tax; the decree providing that if it was not paid within the named time the property should be sold. In a number of decisions this court has construed section 2197, Code of 1906, and has held that where an officer had performed a service in collecting a delinquent tax entitled him to compensation. In Miller v. Delta & Pine Land (Jo., 74 Miss. 110, 20 So. 875, the court distinguished the case there involved from the case of Anderson v. Hawks, 70 Miss. 639, 12 So. 697, saying: “A collection by resorting to any of the plans named in the statute entitles an officer to the per centum, even though the proceeding is interrupted by payment of the taxes. The sum given by the statute cannot be apportioned, and a larger or smaller amount, in proportion to the work done, be awarded as on a quantum meruit; the collector is entitled to all or none. There is no point in the proceeding, once begun, at which it may be said that the right to the compensation has attached rather than at another. The compensation is given as a unit; it cannot be apportioned. It is given when the collection is made by distress or other proceeding provided by the law; and the proceeding is necessarily also to be viewed as a unit.” At that time the tax collector received the entire ten per cent, damages, but to be entitled to it he must have taken some proceeding coercive in its nature to entitle him to compensation, but under the statutes above set out it is made the duty of the tax collector to collect all fees and compensation formerly allowed him and turn it into the county treasury, but as to delinquent taxes the tax collector is allowed one-lialf of the ten per cent., but is to pay the other one-half into the county treasury. The county then becomes entitled to one-half of the ten per cent, damages whenever it is collected by either of the proceedings mentioned in the statute. In our opinion the action in the present case is a suit to distrain or sell property for — 578 — taxes. It is true it is something more than that. It is a suit also for the amount of the taxes and a personal judgment against the tax debtor. The delinquent taxpayer could have avoided the penalty by voluntarily paying the tax before the suit was brought, but when the suit was brought the liability for the penalty attached, and it became its duty then to pay it. It is wholly unconcerned with the apportionment between the collector and the county. The suit being for the benefit of all the parties interested, and the sole question being the liability of the defendant for the ten per cent, damages, and the fact being admitted that the tax was not paid until after the coercive suit was brought and that the ten per cent, had not been paid except in the case of Sunflower county and the town of In dianola, it follows in our opinion that the court erred in not allowing the ten per cent, damages as well as the amount of taxes which were allowed by its decree. In the case of Robertson, State Revenue Agent, v. Shelton, Tax Collector (Miss.), 90 So. 83, decided December 12, 1921, the court recognized that a suit is a coercive method ot collecting taxes, and the other authorities of the state dealing with that subject are cited in the opinion in that case. In our opinion the court below committed error in re fusing to allow the ten per cent, damages, and judgment will be entered here for that amount. In other respects the decree of the court below is affirmed. Reversed in part, affirmed in part.