Opinion
No. 35197.
February 8, 1943. Suggestion of Error Overruled May 3, 1943. On the Merits.
1. LICENSES. Sheriffs and constables.
One seeking damages from Chairman of State Tax Commission, his assistants and sheriff for sale of goods in wrongful collection of sales tax had burden of proving that no assessment of sales was made or that governing statute was not complied with (Laws 1934, chap. 119, sec. 16, as amended by Laws 1938, chap. 113).
2. LICENSES.
The Chairman of State Tax Commission may appoint deputies to act for him in making sales tax assessments (Laws 1934, chap. 119, sec. 16, as amended by Laws 1938, chap. 113).
3. LICENSES.
Additional assessments for sales taxes may be made even though taxpayer has kept adequate records of sales (Laws 1934, chap. 119, sec. 16, as amended by laws 1938, chap. 113).
4. LICENSES. Sheriffs and constables.
In action against State Tax Commissioner, his assistants and sheriff for damages from sale of goods in wrongful collection of sales tax, evidence of incorrectness of assessment should not be considered in absence of evidence or absence of good faith (Laws 1934, chap. 119, sec. 16, as amended by Laws 1938, chap. 113).
5. LICENSES.
Where assessment of sales tax is made in accordance with statute and in good faith, although erroneous in fact, Chairman of State Tax Commission and his assistants are not personally liable to taxpayer.
6. LICENSES. Sheriffs and constables.
A taxpayer seeking damages from Chairman of State Tax Commission, his assistants and sheriff, for sale of goods in wrongful collection of sales tax, had burden of proving that assessment was not made in good faith.
7. SHERIFFS AND CONSTABLES.
The measure of sheriff's liability for giving only 8 days' notice of sale of personalty in wrongful collection of sales tax, is not value of personalty sold, but difference between price obtained and price that would have been obtained if proper notice had been given (Laws 1934, chap. 119, sec. 11, as amended by Laws 1938, chap. 113, sec. 9; Code 1930, sec. 3038).
8. LICENSES. Sheriffs and constables.
In taxpayer's action against Chairman of State Tax Commission, his assistants and sheriffs for damages from sale on insufficient notice in wrongful collection of sales tax, evidence of value of goods sold was properly excluded as not involving proper measure of damages (Laws 1934, chap. 119, sec. 11, as amended by Laws 1938, chap. 113, sec. 9; Code 1930, sec. 3038).
ON SUGGESTION OF ERROR. (Division A. May 3, 1943. [13 So.2d 230. No. 35197.]1. SHERIFFS AND CONSTABLES.
Sheriff selling merchandise levied on under warrant for collection of sales taxes without giving ten days' notice of sale was guilty of "conversion," the measure of damages for which, in absence of special circumstances, was the value of merchandise at time and place of conversion with interest thereon (Laws 1938, chap. 113, sec. 9; Code 1930, sec. 3038).
2. SHERIFFS AND CONSTABLES.
In action against sheriff for selling without sufficient notice merchandise levied on under warrant for collection of sales taxes, evidence that sheriff sold merchandise for $500 and that such sum was less than true value of property was sufficient to take to jury question of damages (Laws 1938, chap. 113, sec. 9; Code 1930, sec. 3038).
3. APPEAL AND ERROR.
Whether recovery for sheriff's sale without sufficient notice of merchandise levied on under warrant for collection of sales taxes should be diminished by amount of proceeds applied on taxes was not before Supreme Court where question was not raised or passed on in trial court (Laws 1938, chap. 113, sec. 9; Code 1930, sec. 3038).
APPEAL from circuit court of Panola county, HON. JOHN M. KUYKENDALL, Judge.
W.E. Gore, of Jackson, and T.N. Gore, of Marks, for appellant.
This suit was brought by E.P. Rigby against A.H. Stone, who is Chairman of the State Tax Commission, and two of his employees and the sheriff of Panola County, as individuals, for the unlawful sale of a stock of merchandise, the property of Rigby, under a warrant issued to collect "sales" taxes claimed to have been due and unpaid from January 1, 1939, to December 1, 1941, by Rigby on account of his having been engaged in the sale of general merchandise at Pope, Mississippi. Actual and punitive damages were demanded.
The sheriff's sale was made under a warrant issued in the name of the defendant, Stone, as Chairman of the State Tax Commission, which warrant was not based on any assessment of taxes by the chairman.
The declaration set up that this warrant was issued notwithstanding the plaintiff kept and preserved adequate records of the gross receipts and gross proceeds of sales, and the gross income of said business and such other books as were necessary to determine the amount of the tax for the payment of which he was liable, and kept and preserved all invoices of goods and merchandise purchased by him for resale. The declaration also set up that returns of taxes were made by the plaintiff quarterly, for the whole time, with the permission of the chairman to make quarterly instead of monthly returns.
The proof, undisputed, shows that the records of the plaintiff were so kept and the returns so made.
Two remedies for the collection of delinquent sales taxes are available to the chairman under the provisions of the statute. (1) To bring an action in debt or other appropriate judicial proceeding.
Laws of 1938, p. 97, Sec. 9, Ch. 113, amending Sec. 11, Ch. 119, Laws of 1934, p. 180, as amended by Secs. 13 and 14, Laws of 1936, p. 179.
(2) To issue a warrant for the collection of the taxes, after an assessment by the chairman, "from the best information available."
Sec. 6, Ch. 13, Laws of 1938, pp. 94, 95, amending Sec. 8, Ch. 119, Laws of 1934, p. 177 as amended by Sec. 11, Ch. 158, Laws of 1936, p. 177.
There are only two conditions under which a warrant may issue: (1) Where "adequate records of the gross income, gross receipts or gross proceeds of sales are not maintained or invoices preserved as provided herein, the commissioner may make additional returns and assessments, . . ." and, (2) where "no return is made by any taxpayer required to make returns as provided herein," and after notice so to do, "then such returns shall be made by the commissioner from the best information available."
Sec. 6, Ch. 113, Laws of 1938, pp. 94, 95, amending Sec. 8, Ch. 119, Laws of 1934, p. 177, as amended by Sec. 11, Ch. 58, Laws of 1936, p. 177.
The Chairman of the State Tax Commission possesses only such powers as are conferred on him by statute expressly or by implication, and he can make an additional assessment in only such cases as the statute permits. Viator v. State Tax Commission, 193 Miss. 266, 5 So.2d 487.
It is obvious that the same rule must be applied to the issuance of a warrant.
The defendant, Stone, admitted in his testimony, that only these two conditions justify the issuance of a warrant based on an assessment made from "the best information available."
The warrant should not have been issued at all, because neither of the two conditions obtained here. Nonpayment of taxes by Rigby is no defense here. The gravaman of this action is the unlawful issuance of the warrant and the consequent sale of the plaintiff's goods under it.
No complaint was ever made that Rigby's records were not adequate or that he refused to make any return required by law and the regulations promulgated by the chairman.
To make an assessment "from the best information available," there must be a failure to keep such records or to make any return and where such records are kept and returns are made, the remedy is to sue.
The power to make additional assessments and returns and to impose penalties is vested exclusively in the defendant, Stone, and the defendant, Stone, cannot delegate the power to perform these functions to anybody. Mr. Stone could not, and as a matter of fact did not, undertake to delegate this power.
No assessment or return was made or penalty imposed by anybody connected with the Tax Commission. No notice of any assessment was ever given to the plaintiff.
No assessment having been made, the warrant was issued unlawfully and the whole proceeding was void from the beginning.
Shewalter v. Brown, 35 Miss. 423.
The returns or assessments and the imposition of penalties must be reduced to writing by the chairman, and this written statement must recite all the facts as to jurisdiction of the subject matter and the person, or any action taken is utterly void.
The sheriff is liable here for failure to advertise the sale ten days and for selling it on eight days' notice, which made the sale void and rendered him and the other defendants liable for the loss of the stock of goods sold and for such punitive damages as a jury might assess.
Vansant v. Dodds, 164 Miss. 787, 144 So. 688; McSwain v. Young, 111 Miss. 686, 72 So. 129; Code of 1930, Secs. 1398, 3037, 3038; Sec. 9, Ch. 113, Laws of 1938, amending Sec. 11, Ch. 119, Laws of 1934, as amended by Ch. 158, Laws of 1936.
See also Planters Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323; Crump v. Tucker, 149 Miss. 711, 115 So. 397; Smith v. Deas, 158 Miss. 111, 130 So. 105; Minor v. City of Natchez, 4 Smedes M. 602, 10 Smedes M. 246; Howard v. Walters, 2 Miss. Dec. 187.
The sheriff was under the duty to go behind the warrant and ascertain for himself that the chairman and his employees had followed the statute.
Seward v. Wales, 40 N.Y., Appellate Division, 539, 58 N.Y.S. 42; Shaffer v. Riseley, 114 N.Y. 23, 20 N.E. 630; 57 C.J., Sheriffs, Sec. 530.
The warrant was not fair on its face in that it did not recite the facts on which an assessment could be made and a warrant be issued.
We maintained that the record shows as matters of fact: (1) That adequate records were kept by means of which the amount of the tax may be ascertained; (2) That the chairman made no assessment; (3) That nobody else made one; (4) That no notice of an assessment was given; and (5) That the warrant was issued without either of these preliminary and indispensable things having been done; (6) That the chairman did not undertake to delegate the power to assess Rigby's taxes and penalty; (7) That, no assessment order having been made, there is no recital of jurisdictional facts to support Cocke's issuance of the warrant or Whitten's use of it as the means to deprive Rigby of his property; (8) That the sheriff gave only eight days' notice of the sale; and (9) That the sheriff did not make any investigation to ascertain whether an assessment had been made, or notice of assessment given, to support the warrant and to justify his acting by its authority.
Counsel who represent the Tax Commission defendants have not controverted either of these propositions of law or fact, except to maintain that adequate records were not kept by Rigby, a position not taken by anybody until long after the warrant had been issued.
J.B. Boyles, of Batesville, for appellee, Sheriff Whitten.
The record does not show or disclose any evidence or facts that the appellant, Rigby, was in any way damaged by the sheriff in levying and executing the warrant that had been placed in his hands by the Tax Commission for service. However, the appellant admits in his declaration, and the transcript of the evidence shows, that Sheriff Whitten acted on what purported to be a good and valid warrant issued and placed in his hands by the Chairman of the State Tax Commission; and that in pursuance and by virtue of said warrant, the sheriff levied the same upon the stock of merchandise of the appellant Rigby, advertising said stock of merchandise for sale upon an eight day notice instead of ten days as required by the statute governing sales under writs of execution.
Code of 1930, Sec. 3038.
There was no proof whatsoever offered by the appellant as to any damages sustained by him by reason of said sale having been made on an eight day notice instead of ten days as required by law. There is no proof anywhere in the record that Sheriff Whitten connived with A.H. Stone, Chairman of the State Tax Commission, or any of the other appellees, for the purpose of destroying the business of the appellant Rigby and to injure his reputation. As a matter of fact, he had nothing to do with any of the affairs of the Tax Commission in arriving at and determining the delinquency of the appellant for the sales tax, or with making the assessment. The sheriff just simply discharged a ministerial duty in making the levy and sale under the warrant, which purported to be on its face a good and valid warrant issued by the Chairman of the State Tax Commission.
As to the sale of appellant's stock of merchandise being made by the sheriff on an eight day notice instead of a ten day notice as required by Section 3038, Code of 1930, being an act of misfeasance or nonfeasance on the part of the sheriff in executing the warrant upon such illegal notice of the sale of the appellant's personal property, or if this act of misfeasance on the part of the sheriff is to be disregarded and the sheriff treated as a trespasser from the beginning, then it stands to reason under all rules of substantive law in either instance that the appellant would have to prove that he was injured or damaged in such unlawful sale or taking of his property before he would have a case for the jury to pass upon. The record wholly fails to show any proof whatsoever; in fact, none was even offered by the appellant showing any damages sustained by him by reason of the sheriff making the sale on a notice shorter than the ten day period required by the statute.
In an action against an officer for selling property without giving proper notice, the measure of damages is not the value of the property, but the difference between the price it sold for and the price it would have sold for if proper notice had been given.
Breithaupt v. Dean, 144 Miss. 292, 109 So. 792; 57 C.J. 869, Secs. 408, 409.
If property be sold on execution without the legal advertisement or notice of sale, it is the improper performance of an act which might have been lawfully done; and the officer is guilty of a misfeasance or nonfeasance; or he may be regarded as a trespasser from the beginning, and not entitled to the protection of his writ. The measure of damages against an officer for failing to give proper notice of a sale, if it be shown that the plaintiff has not lost any title by the error, is no more than the fees which the officer has collected for the levy and sale.
Section v. Nevers (Mass.), 32 Am. Dec. 225; Brock v. Berry (Ala.), 31 So. 517; Johnson v. Reese (Ga.), 73 Am. Dec. 757; Wright v. Spencer (Ala.), 18 Am. Dec. 76; 24 R.C.L. 937, Sec. 29.
It is well established as a general rule that the process, judgment, or order of a court having apparent jurisdiction, if valid on its face, affords complete protection to a sheriff or constable from liability for any proper or necessary act done in its execution, but not where the sheriff acts wrongfully, or in other than his official capacity. Statutes protecting officers from liability in the execution of process are to be liberally construed.
57 C.J., Sec. 525.
The warrant was not void on its face but it purported to be a good and valid warrant, and was in fact a good and valid warrant as issued and placed in the hands of Sheriff Whitten, and he could do nothing more or less than execute the warrant according to law and in doing this the warrant afforded him protection in the performance of a ministerial duty.
Carroll v. Board of Police of Tishomingo County, 28 Miss. 38; Newman v. Elam, 30 Miss. 507; Hendricks v. Johnson, 45 Miss. 644.
We submit that the sheriff did nothing more than his duty enjoined upon him by law in executing this warrant in question; and if the appellant sustained any damage by virtue of the sale made by the sheriff as charged in the appellant's declaration, then the appellant wholly failed to make any proof of such damage, and that the court below committed no error in granting the peremptory instruction as to all of the appellees in this cause.
J.H. Sumrall, of Jackson, for appellees.
This is a suit for damages, both actual and punitive. The court will also note that there is not one scintilla of evidence which, taken most favorably, proves that the plaintiff has been unlawfully dealt with in any respect. And there is nothing in the whole testimony introduced on behalf of the plaintiff to prove that the plaintiff has in any manner been damaged, or any measure whatsoever by which damages could be computed. All the testimony of the plaintiff conclusively shows that he had not complied with the law; that he had not properly made his reports; that he admittedly had not paid all the tax due by him. These admissions on the part of the plaintiff establish without question the right of the commissioner to take the various actions that were taken, and plainly negative any thought that the defendants or any of them had done other than carry out the provisions of the law to the best of their ability, based upon the best information available, which is all that is required when the taxpayer has failed to comply fully with the law by keeping proper records, making proper reports, and paying the proper tax when due. The whole testimony of the plaintiff clearly established the fact that he had been derelict in every duty required of him by the Sales Tax Law. And this fact is sufficient to justify the action taken by the commissioner and those serving under him, and through the procedure that was followed in full compliance with the law.
The questions presented to this court on this appeal may be very simply stated, since the nature of the suit necessarily limits the question to be considered to those involved and designated by the declaration itself. The court will bear in mind that this is simply a suit for damages. No effort is made to recover taxes erroneously paid, as provided by statute in proper cases, nor is any claim made that an excessive amount of taxes has been paid. Indeed, the testimony of the plaintiff himself affirmatively shows that proper returns had not been made, and that the proper amount of taxes had not been paid, thus completely contradicting the facts alleged, and the only facts alleged in the declaration upon which this suit is primarily predicated, that is that all returns had been properly made and all taxes properly paid. The court will therefore realize that the burden of proof was on the plaintiff to establish by preponderance of evidence the preliminary, fundamental facts on which his suit was predicated, to-wit, that he had performed fully every duty imposed upon him by law as a taxpayer under the Sales Tax Law, and that, notwithstanding this fact, and while it was a fact, the principal defendant, A.H. Stone, Commissioner, through and in connivance with his subordinates, had willfully, wantonly, and with malice pretended to follow the provisions of the law to the great hurt of this plaintiff as a taxpayer; wherefore he demands damages actual and punitive.
In analyzing the testimony produced on behalf of the plaintiff, it is at once apparent that the plaintiff failed utterly in establishing a single fact on which his suit was predicated. And having failed in this important task, there is nothing on which this court or any other court, or the jury in the trial court, could have intelligently and definitely determined that any damage of any kind had resulted, except the failure of the plaintiff himself to comply with the provisions of the statute.
To warrant punitive damages, defendant's actions must be prompted by willful and conscious wrong, actual malice, or conduct so grossly negligent and inexcusable as to amount to reckless disregard of another's rights.
New Orleans, J. G.N.R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478; Chicago, St. L. N.O.R. Co. v. Scurr, 59 Miss. 456, 42 Am Rep. 373; Illinois Cent. R. Co. v. Dodds, 97 Miss. 865, 53 So. 409; Yazoo M.V.R. Co. v. Hardie, 100 Miss. 132, 55 So. 967, 34 L.R.A. (N.S.) 742; Yazoo M.V.R. Co. v. May, 104 Miss. 422, 61 So. 449, 44 L.R.A. (N.S.) 1138; McCain v. Cochran, 153 Miss. 237, 120 So. 823; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Illinois Cent. R. Co. v. Ramsay, 157 Miss. 83, 127 So. 725; Yazoo M.V.R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; Bounds v. Watts, 159 Miss. 307, 131 So. 804; Hudson v. Louisville N.R. Co., 30 F.2d 391; Malone v. Montgomery Ward Co., 38 F. Supp. 369.
The chief complaint of the appellant on this appeal is necessarily the action of the court in sustaining the motion of the defendants for a directed verdict. Where there is no evidence to sustain an issue or establish a fact, it is the duty of the court to so inform the jury.
Garnett v. Kirkman, 33 Miss. 389; Thigpen v. Mississippi Cent. R. Co., 32 Miss. 347; Board of Mississippi Levy Commissioners v. Montgomery, 145 Miss. 578, 110 So. 845; Great Southern Life Ins. Co. v. Campbell, 148 Miss, 173, 114 So. 262, 56 A.L.R. 681; Carrere v. Johnson, 149 Miss. 105, 115 So. 196; Mobile O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597.
The Tax Commissioner is not subject to a suit for damages claimed to have resulted from his official acts.
Dunn Construction Co. v. Craig, 191 Miss. 682, 3 So.2d 834; DeWitt v. Thompson et al., 192 Miss. 615, 7 So.2d 529; Bradley v. Fisher, 20 L.Ed. 646; Laws of 1934, Ch. 119. Greek L. Rice, Attorney-General, by W.D. Conn, Jr., Assistant Attorney-General, for appellees.
Appellant's claim for damages in this case is predicated on the theory that he had reported all the sales which he had made during the three-year period here involved, had paid all the taxes which he was required under the law to pay, and had kept adequate records of his business; that in spite of all this the defendants, acting arbitrarily and with malice, assessed him with additional sales taxes which they knew he did not owe, either all or any part of it. Can the court say he properly reported his entire gross sales? Has he paid all taxes due? Did he keep adequate records? His own testimony conclusively shows that the allegations of his declaration have not been and cannot be sustained by the evidence contained in the record now before the court.
See Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597.
The procedure which was followed by the State Tax Commission, which culminated in the issuance of the warrant involved in this case, complied with the law in all respects. This lawsuit was predicated on the malicious and wanton conduct of Mr. Stone, his agents, and the sheriff of Panola County. No malicious conduct has been shown anywhere. The law has been followed in all of its provisions.
W.E. Gore, of Jackson, and T.N. Gore, of Marks, for appellant, on suggestion of error.
The failure of Whitten to advertise the property for the statutory period is the same as the failure of a sheriff to file a return, within the time required by the statute, and it renders him a trespasser ab initio, liable for conversion, and the measure of damages is the value of the property at the time of the conversion with interest to the time of the trial.
Vansant v. Dodds, 164 Miss. 787, 144 So. 688; Hinds v. Terry, Walk. (1 Miss.) 80; Heard v. James, 49 Miss. 236; Sumrall Motor Co. v. Creel, 158 Miss. 262, 130 So. 151; Briscoe v. McElween, 43 Miss. 556; Jamison v. Moon, 43 Miss. 598; Bank of Forest v. Capital National Bank, 176 Miss. 163, 169 So. 193; Ingram Day Lumber Co. v. Robertson, 129 Miss. 365, 92 So. 289; Skrmetta v. Clark, 180 Miss. 21, 177 So. 11; Lancaster v. Jordan Auto Co., 185 Miss. 530, 187 So. 535; Carrier v. Esbaugh, 70 Pa. 239; Shaffer v. Price, 260 N.W. 703, 98 A.L.R. 689; 28 A. E. Ency. (2 Ed.), Sec. 14, p. 696; 26 R.C.L., Trover, p. 1120, sec. 31.
J.B. Boyles, of Batesville, for appellee, Sheriff Whitten, on suggestion of error.
We take the same position that we did in our original brief filed in behalf of Sheriff Whitten; that is, that there were no damages proved by the appellant against the sheriff, and for that reason we asked the court to instruct the jury to find for the sheriff.
For damages for misfeasance or nonfeasance in giving proper notice of the execution sale, the measure of damages would be the difference between what the property brought on an improper notice of sale and what it would have brought on a legal notice.
Breithaupt v. Dean, 144 Miss. 292, 109 So. 792; Sexton v. Nevers (Mass.), 32 Am. Dec. 225; Brock v. Berry (Ala.), 31 So. 17; Johnson v. Reese (Ga.), 73 Am. Dec. 757; Wright v. Spencer (Ala.), 18 Am. Dec. 76; 57 C.J. 869, Sec. 409; 24 R.C.L. 937.
Argued orally by T.N. Gore and W.E. Gore, for appellant, and by J.H. Sumrall and W.D. Conn, Jr., for appellees.
The Honorable A.H. Stone, Chairman of the State Tax Commission, issued a warrant to the Sheriff of Panola County for the collection from appellant of a stated amount of sales taxes said to be due by him and for the penalty thereon for the delay in payment. Appellant declined to pay the sheriff and he levied on and sold a stock of goods belonging to the appellant therefor. This action was brought by Rigby against Stone, two of his assistants and the sheriff.
The declaration states a ground for recovery against the sheriff different from that on which the liability of the other defendants is based and probably states a separate and distinct cause of action, but if so, no objection thereto is here made. At the close of the appellant's evidence, it was excluded by the court, and a verdict was directed for the appellees, the defendants in the court below, and these rulings of the court are assigned for error. As we understand the declaration, the appellant's complaints are that the warrant was issued without any previous assessment of sales made by him on which sales taxes could be collected, and that the sheriff sold his stock of goods without giving the required ten-day public notice thereof. The recovery sought is for both actual and punitive damages. The liability vel non of the sheriff will be discussed after that of the other appellees has been disposed of.
The burden of proving that no assessment of the sales made by him or that the governing statute was not complied with in the making thereof was on the appellant, and the record is barren of any evidence that such an assessment was not in fact made. On the contrary, the evidence discloses that the making of such an assessment was assumed throughout the trial and was referred to as such by the appellant himself when testifying. The appellant's real complaint, as we understand it, is: (1) That the statute requires the assessment to be made by the Chairman of the State Tax Commission himself, that the one here was made by one of his assistants to whom he had delegated, without authority therefor, the making of the assessment; and (2) that the assessment is erroneous.
The statute here governing is Chapter 113, Laws of 1938. Section 11 thereof amending Section 16, Chapter 119, Laws of 1934, expressly provides that its administration "is vested in and shall be exercised by the chairman of the state tax commission, except as otherwise herein provided." This provision of the statute, the appellant says, requires such an assessment, in all of its details, to be made by the Chairman of the State Tax Commission in person except mere clerical or ministerial acts requiring no exercise of judgment or discretion, and that Stone himself testified that he did not make this assessment himself, that such assessments are generally made by persons employed by him therefor. The answer to this contention of the appellant appears in the statute itself. Another of its provisions is that "The chairman of the state tax commission shall appoint, as needed, such deputies, agents, clerks and stenographers as authorized by law, who shall serve under him, and shall perform such duties as may be required by the commissioner, including the signing of notices, warrants and such other documents as may be specifically designated by the commissioner, not inconsistent with this act, and they are hereby authorized to act for the commissioner as he may prescribe and as provided herein." (Italics ours.) This provision of the statute without, but certainly in, the light of the manifest impossibility for the Chairman of the State Tax Commission to himself pass on the vast number of sales tax returns made to him and to determine the correctness thereof, and the necessity for and to make additional assessments, clearly authorizes him to appoint deputies and require them to act for him in making these assessments. But the appellant says that "he may (only) appoint such deputies as authorized by law." We are not referred to any other statute to which these words can refer, but if there is such, in the absence of evidence to the contrary, we must presume that it was complied with in the appointment of these deputies, agents, etc., the burden of proving the contrary being on the appellant. Again it is said by the appellant that additional assessments for sales taxes can be made when but not unless the taxpayer fails to keep adequate records of his sales as required by Section 6 of the statute and that the evidence here discloses that the appellant kept such records. This is a misconception of the statute as will appear from Viator v. State Tax Commission, 193 Miss. 266, 5 So.2d 487, 489, wherein it was said that: "The right and duty of the Commissioner to make an additional return or assessment of the taxpayer's sales in addition to that returned by him is not dependent on the failure of the taxpayer to keep adequate records, and the only effect of the provision as to inadequate records in Section 6 of the statute is to permit the Commissioner, when the taxpayer's records are inadequate, to determine the correctness of the return made by him `from the best information available.'"
The greater part of the appellant's evidence was pointed at his claim that the assessment was incorrect for the reason that he had reported and paid taxes on all of the sales made by him. The evidence seems not to sustain this claim, but if it does, it is not for consideration here. Where an assessment is made in accordance with the statute, although erroneous in fact, no personal liability of the Chairman of the State Tax Commission and his assistants to the taxpayer results therefrom provided the assessment was made in good faith, the burden of proving that it was not so made being on the complaining taxpayer, and this evidence is barren of anything indicating the absence of good faith here. National Surety Company v. Miller, 155 Miss. 115, 124 So. 251; 46 C.J. 1042; 43 Am. Jur. 86.
Section 9 of Chapter 113, Laws of 1938, under which the warrant here was issued provides that the sheriff on receipt of such warrant "shall levy upon any property of the taxpayer . . . in all respects, with like effect, and in the manner prescribed by law in respect to executions issued against property upon judgments or attachment proceedings," and for the purpose of the argument we will assume that Section 3038, Code of 1930, applies thereto. That section provides that sales of personal property "shall be advertised ten days before the day of sale by posting notices of the time, terms, and place [thereof]," etc. The sale here made by the sheriff of the appellant's stock of merchandise was advertised for only eight days, and assuming that the statute here applies, he became liable to the appellant for the damages, if any, he sustained therefrom, the measure of which "is not the value of the property (sold), but the difference between the price it sold for and the price it would have sold for if proper notice had been given." 57 C.J. 869. The appellant's evidence was not pointed at this measure of damages but at the value of the goods sold, for which he sought to hold Stone and his assistants liable, and therefore the court below committed no error in excluding it.
Affirmed.
ON SUGGESTION OF ERROR.
This suggestion of error will be overruled as to all of these appellees except J.W. Whitten. Our former opinion herein, 11 So.2d 823, 825, will disclose that Stone, Chairman of the State Tax Commission, issued a warrant to Whitten, sheriff, for the collection of sales taxes under Section 9, Chapter 113, Laws of 1938, due by the appellant, pursuant to which Whitten levied on a stock of merchandise owned by the appellant and sold it therefor. In so doing, he did not comply with the requirement of Section 3038, Code of 1930, which governs the sale, to advertise the sale of the property for ten days but advertised it for only eight days, for which we held that he was liable to the appellant for the damages, if any, he sustained thereby, stating that the measure thereof is "the difference between the price it sold for and the price it would have sold for if proper notice had been given." There being no evidence disclosing the difference between these two prices, we affirmed the judgment denying the appellant a recovery against Whitten. This holding is supported by 57 C.J. 869, and by one, probably both, of the two cases there cited, though, as the text points out, there is authority to the contrary. This measure of damages being such an impractical one because of the difficulties that will always accompany its proof has caused us to re-examine it, after doing which we have arrived at the conclusion that it is not the proper measure thereof. In order to judicially determine the measure of damages for the commission of a tort, it is necessary to ascertain into what category of the law of torts the act complained of falls, and when that is done, no difficulty generally arises in arriving at the measure of damages for the commission of the act.
Whitten was privileged to sell this property under the writ issued to him therefor, but only on ten days' posted notice thereof, and when he sold it without giving this ten-day notice, the writ ceased to protect him, consequently he was without the right to then sell the property, and by selling it became guilty of its conversion, the measure of damages for which, in the absence of special circumstances not here in evidence, is the value of the property, market value if such it has, at the time and place of its conversion with interest thereon. But it is said that the evidence as to the value of this stock of merchandise is not definite enough to enable the jury to place a value thereon. The appellant's right to nominal damages aside, the evidence discloses that Whitten sold this merchandise for $500, which sum the evidence also discloses was less than its true value, how much more than $500 the jury could have found its value to be we are not now called on to determine.
1 Rest. Torts, subsec. (b) of Sec. 278 and comments thereon; 57 C.J. 862; Vansant v. Dodds (Sale of Real Property), 164 Miss. 787, 144 So. 688, 145 So. 613.
1 Rest. Torts, Sec. 223; Latimer v. Stubbs, 173 Miss. 436, 159 So. 857, 161 So. 869; 65 C.J. 38; 26 R.C.L. 1120.
Sumball Motor Co. v. Creel, 158 Miss. 262, 130 So. 151; Ingram-Day Lbr. Co. v. Robertson, 129 Miss. 365, 92 So. 289; Illinois Cent. R.R. Co. v. LeBlanc, 74 Miss. 626, 21 So. 748; Latimer v. Stubbs, 173 Miss. 436, 159 So. 857, 161 So. 869; Bank of Forest v. Capital National Bank, 176 Miss. 163, 169 So. 193.
If it be said that the appellant's damages should be diminished by the amount for which Whitten told the merchandise and applied, as we will assume the evidence discloses that he did, to the taxes due by the appellant for the collection of which the merchandise was sold, the answer must be that that question was not raised or passed on in the court below and consequently is not now before us.
From this, it follows that this suggestion of error must be sustained as to the appellee Whitten. Our former affirmance of the judgment below to the extent that it denied the appellant a recovery against Whitten will be set aside, the judgment to that extent will be reversed, and the case will be remanded for the trial of that issue only. That portion of our former opinion herein, dealing with the measure of damages here discussed, will be withdrawn, and this opinion substituted therefor.
So ordered.