Henry v. State ex rel. Coody

Sykes, J., delivered the opinion of the court. This suit is a quo warranto proceeding instituted by the state, on the relation of Excell Goody, in the circuit court of Hinds county, against T. M. Henry, insurance, commissioner of the state of Mississippi, to- remove him from office. The appellee Coody claims to be entitled to the office by virtue of an alleged appointment thereto by the governor. The appellant, Henry, interposed a demurrer to the petition, which was overruled by the court. He then filed an affidavit of merits, and asked to be allowed to plead. His petition to plead was denied, and judgment final was rendered ousting Henry from the office, from which judgment this appeal is prosecuted. In this case we are called upon to say whether or not the state insurance commissioner is a tax collector within the meaning of section 125 of the Constitution. This section is as follows: “The governor shall have the power, and it is hereby made his duty, to suspend alleged defaulting state and county treasurers, and defaulting tax collectors,'pending the investigation of their respective .accounts, and to malte temporary appointments of proper persons to fill the offices while such investigations are being mad^ and the legislature shall provide for the enforcement of this provision by. appropriate, legislation.” Pursuant to the mandate to the legislature to provide for the enforcement of this provision by appropriate legislation, the able lawyers who drafted the Gode of 1892 placed therein and the legislature of that year adopted sections 2170, 2171, 2172, 2173, 2174, 2175, 2176 and 2177, and these legislative enactments have been substantially readopted by the codifiers, and are found in the Code of 1906, — 875 — and also in Hemingway’s Code, in their original form as they appeared in the Code of 1892. We shall discuss more in detail these provisions hereafter. The department of insurance was created and first appears as chapter 69, Code of 1906. In this chapter the office of state insurance commissioner is created. His duties are set forth in detail in this chapter. Section 2625 provides for the payment of premium taxes by insurance companies twice each year to the commissioner. Section 2626 provides for license fees to be paid to the commissioner. Section 2629 provides for the payment by the commissioner into the. state treasury of license and premium taxes paid to him. Section 2561 vests in the insurance commissioner power to have the attorney-general or district attorney bring suit against insurance companies or others governed by this chapter when these companies in the judgment of the commissioner, have failed to comply with the law. It will be noted that there are many important duties vested in this officer relating to the solvency and the proper conduct of both life and fire insurance. It is unnecessary here to go into a detailed enumeration of the duties of this officer. It is the contention of the appellee, and the learned circuit judge so held, that the insurance commissioner is a tax collector under section 125 of the Constitution. An examination of all of the previous Constitutions of the state shows that the Avoids “tax collector” appear in none of them before the Constitution of 1890, and in this Constitution it only appears the one time and in the above section. On the other hand, the offices of state treasurer and county treasurer appear in all previous Constitutions. The offices of state treasurer and county treasurer under all of our Constitutions are constitutional offices. The office of tax collector under none of them is a constitutional office. It is the contention of the appellant that section 125 deals with the incumbents of three offices, namely, those three mentioned, while, on the other hand, the appellee contends that the words “tax collector” rather deal with the duties — 876 — of an officer, and not with an officer himself; that is to say that, under this section, any officer, regardless-of the office held by him, who collects or receives any state or county taxes, is a tax collector, and therefore within the terms of this section. It is certain, however, that this section is beyond doubt dealing with the incumbents of the offices of state treasurer and county treasurer. These are constitutional offices, and, while their duties are not set out in detail in the Constitution, but are left to the legislature to prescribe, it is certain that it is with the incumbents of these two offices that the Constitution makers were dealing in this section. The three offices are mentioned together. It would be unusual and out of the ordinary, then, if the Constitution makers intended in the first two instances to deal with the incumbents of two offices, and in the last instance to deal with the functions and duties of any office to which the legislature might empower the reception or collection of some particular tax. If this be true then there are numerous state officers, both constitutional and statutory, who would come under this definition of “tax 'collector.” This is a misconception of the use of the term “tax collector.” The Constitution makers in all three instances were referring to the incumbent of the office named by them, namely, the office of state treasurer, the office of county treasurer, and the office of tax collector. This -is perfectly plain when we consider the previous and subsequent laws of the state dealing with the tax collector. In all of the previous Codes of Mississippi this office is dealt with. In some of the statutes this officer is referred to as the collector, in others as collector of taxes, in others as tax collector. These words are used in numbers of instances, interchangeably. Turning especially to the Code of 1880, which was in force and effect when the Constitution was made, it therein appeal’s that the office of tax collector was a well-recognized and well-understood office, and that the táx collector was the officer in each county who generally collected the- state and county taxes, with — 877 — powers to distrain and enforce the collection of these taxes. Section 347 of this Code provides that the sheriff of each county shall he tax collector therein, and for the giving of a separate bond as sheriff and also as tax collector. Section 466 provides for the compensation of the tax collector. Section 488 provides how the tax collector shall collect taxes from a person about to leave the county. Sections 510, 511, 512, 515, and others provide for the collection of state and county taxes by the tax collector. Many sections of this Code deal with the office and the duties of tax collector. It is also to be noted that section 514 provides for the payment of certain taxes under certain conditions to the state auditor. The sections of this Code deal with the office and duties of tax collector, and treat it as a separate and distinct office. The various opinions of this court dealing with this subject have always considered that there was such a separate and distinct office as tax collector under all of the laws of the state, except an act in 1843 (Laws 1843, chapter 1, section 7) provided that the office of tax collector should be abolished, and all duties required' by law of the tax collector should be performed by the sheriffs of the several counties. Griffing v. Pintard, 25 Miss. 173. Statutes once combined the offices of tax assessor and tax collector. Later on the two offices were held by one person elected sheriff in accordance with statutes similar to that of section 347, Code of 1880. An act of the legislature of 1822 (Eev. Code 1824, chapter 53, section 3) provided for an annual appointment by the governor of a collector and assessor of taxes for each county. McNutt, Governor v. Lancaster et al., 9 Smedes & M. 570. The case of Moore v. Foote, Governor, 32 Miss. 469, decided in 1855, is very much in point. Under the law then and now the sheriff of each county was also the tax collector. In dealing with these two officers it is there said: “This action was brought on a tax collector’s bond; and although the statute subsequently passed, provides that the duties required by law to be performed by the tax col — 878 — lector, should be performed by the sheriff, yet the intention of the law is merely that the same individual shall perform the duties of both offices. They are, however, separate and distinct, and in addition to the bond of the individual as sheriff, the statute requires him to execute a bond, and take an oath of office, as tax collector. . . . The duties and responsibility of the individual in the different capacities in which he acts, are as distinct as though each office was held by a different individual.” In the case of Byrne v. State, 50 Miss. 688, it is there stated that: “The office of tax collector exists, with well-defined duties and responsibilities in the present Code.” , Other cases dealing interestingly with this subject are French v. State, 52 Miss. 759; Hyde v. State, 52 Miss. 665; Harris v. State, 55 Miss. 50; State v. Matthews, 57 Miss. 1; State v. Harney, 57 Miss. 863. Again in the case of State v. Thibodeaux, 69 Miss. 92, 10 So. 58, this court dealt with the powers of sheriff and tax collector. In the case of State v. Tonella, 70 Miss. 701, 14 So. 17, 22 L. R. A. 346, in discussing the office of assessor, and in speaking'"of section 138 of the Constitution, providing for this office, the court said that: “It is to be presumed that the framers of that instrument intended to provide for the performance by him, substan-' tially at least, of those duties which have hitherto pertained to his office” — citing French v. State, supra. The Constitution framers were familiar with the previous statutes of this state dealing with the office of tax collector. They knew that for a while the offices of assessor and collector were held by one person. They knew that for a long time previous to the adoption of this Constitution the person elected sheriff was by statute also made the tax collector in his county. The office of sheriff and tax collector originally had separate and distinct powers incident to each. For many years these two offices have been filled by the same person, the sheriff; who is most generally known as sheriff and tax collector. Being cognizant of both the statutory and judicial history of these — 879 — offices in section 125 of the Constitution the makers of it provided for the removal in the manner there prescribed of three officers, namely, state treasurer, county treasurer, and tax collector, naming the offices, and not the duties or functions, to be performed by the incumbents of offices. Only one state officer is named, namely, the state treasurer, though, as above pointed out, the state auditor ivas empowered to receive or collect taxes of a certain kind. At the time of the adoption of this Constitution, as shown by these statutes and judicial utterances of this court, there was an office generally known and recognized as that of tax collector, with well-understood duties and powers, which were the collection of state and county taxes in the counties. The office of tax collector is a county office, and by statute is held by the person who is elected sheriff. That this is the meaning of this section is also made manifest when we look at the statutes recommended by the able code commissioners who drafted the Code of 1892, and which were adopted by the legislature of that year, and have been subsequently readopted without change in the Code of 1906 and Hemingway’s Code. These sections in the Code of 1906 are 2387, 2388, 2389, 2390, 2391, 2392, 2393 and 2391 (Hemingway’s Code,.sections 1779, 1780, 1781, 1782, 1781, 1785, 1786 and 1787). Section 2391 reads as follows : “If the examiner report any state or county treasurer op any tax collector to be a defaulter, it shall be the duty of the Governor to notify the attorney-general in case of the state treasurer, or the proper district attorney in case of a county officer, of the facts, and require him to institute proper proceedings in court for the investigation of such accounts and the judicial determination of the status thereof.” It will be there noted that the legislature provided that the governor notify the attorney-general in case of default of a state treasurer, and then provides that he notify the proper district attorney in case of a county officer. This .section expressly recognizes that the only state officer re — 880 — ferred to in the Constitution who can be removed by the governor is the state treasurer, and that both‘the county treasurer and the tax collector are county officers. The demurrer challenges the right of the governor to act in this matter for the reason that the state insurance commissioner is not a tax collector under the provisions of this section of the Constitution. This section of the Constitution only refers to the county tax collector, as above stated. It follows that the insurance commissioner is not such a tax collector. The cause is reversed, the demurrer sustained, and the proceedings dismissed. Reversed and dismissed.