Summary
In White v. Miller, 160 Miss. 734, 133 So. 146, this court held that Legislature in re-enacting a statute is presumed to have known of the construction theretofore placed thereon by governmental departments, and by such re-enactment, without substantial change of language as to the points involved, to have adopted the said previous construction so placed thereon.
Summary of this case from State ex Rel. v. City Bus Co., Inc.Opinion
No. 29347.
March 23, 1931. Suggestion of Error Overruled, May 12, 1931.
1. STATUTES.
Legislature, when re-enacting statute, is presumed to have known of and adopted construction placed thereon by governmental departments.
2. STATUTES.
Where statute is ambiguous, rule that Legislature in re-enacting statutes is presumed to have adopted construction placed thereon, applies with special force.
3. TAXATION.
Where delinquent taxes and damages are collected by county tax collector at instance of state tax collector, both collectors are entitled to respective commissions (Code 1930, section 6999; Laws 1930, chapter 88, sections 225, 239).
APPEAL from circuit court of Hinds county; HON.W.H. POTTER, Judge.
J.A. Lauderdale, Assistant Attorney-General, for appellant.
The state tax collector and the county tax collector both cannot be compensated for one and the same collection.
Chapter 88, Laws of 1930, revises and amends the privilege tax laws of the state.
Section 7, chapter 17, Laws Extraordinary Session of 1928, fixes the compensation of a county tax collector for collecting privilege tax.
The county tax collector's commission for collecting penalties for failure to pay privilege tax is fixed by section 239, chapter 88, Laws of 1930.
County tax collector must pay in all taxes collected by him, less his commissions.
Section 8284, Hemingway's Code of 1927.
Section 7066, chapter 71, Laws Extraordinary Session of 1928, allows the state tax collector twenty per cent commission on all amounts collected.
The interest of the state and the revenue agent in this matter is identical. He gets nothing if nothing is collected. He gets twenty per cent only when the public revenues get their eighty per cent.
Adams v. Bolivar County, 75 Miss. 155.
Appellees contend that inasmuch as the state actually receives more when the delinquent tax and penalty are collected as outlined in the petition than it would receive if the tax was paid when due that the state cannot complain. This is fallacious for two reasons: First, the penalty is not levied for the sole benefit of the tax collectors; and second, all of the commission is not paid or deducted from the penalty.
Where an officer is compensated by a commission on the amount of money collected by him, then he is only entitled to the commission when he does or performs some act outlined by statute in the collection of said amount.
Railroad Co. v. Love, 69 Miss. 109, text 111; Adams v. Hawks, 70 Miss. 639, text 644; Miller v. Delta Pine Land Co., 74 Miss. 110.
Where a statute has been construed by the Supreme Court and afterwards re-enacted by the legislature in the same form, such re-enactments carries with it the endorsement by the legislature of such construction.
Womack v. Central Lumber Co., 92 So. 2, 131 Miss. 201; Hay v. Hay, 48 So. 903, 93 Miss. 732, 25 L.R.A. (N.S.) 182; Burkes v. Moody, 107 So. 279, 141 Miss. 370.
The state tax collector cannot assess any tax, and no officer is authorized to assess a privilege tax.
Thibodeaux v. State, 69 Miss. 683; State v. Tonella, 70 Miss. 701; State v. Adler, 68 Miss. 487.
In the absence, however, of a resort to coercive measures, when the taxes may be paid to two different officers, then the officer actually receiving the taxes is the one who actually collects them.
Robertson v. Shelton, 127 Miss. 360, text 377.
The legislature has adopted this construction by re-enacting said statute in practically the same language.
Chapter 230, Laws of 1924; Chapter 286, Laws of 1926; Chapter 71, Laws Extraordinary Session 1928; Section 6776, Code of 1930; Womack v. Central Lumber Co., 131 Miss. 201; Hay v. Hay, 93 Miss. 723; Burkes v. Moody, 141 Miss. 370.
The ultimate duty and responsibility of construction is upon the court, and departmental interpretation cannot well be resorted to where the language of the statute is plain. Before we are justified in accepting departmental construction the law under consideration must be doubtful, ambiguous or uncertain.
State v. Cotton Compress., 123 Miss. 191, text 207; Powell v. Smith, 74 Miss. 142.
The principle is a familiar one that in the interpretation of a doubtful or ambiguous statute, the long continued and uniform practice of the authorities charged with its administration is entitled to great weight, and will not be disturbed except for cogent reasons. Long continued practice and the approval of adminstrative authorities may be persuasive of the interpretation of doubtful provisions of the statute, but cannot alter provisions that are clear and explicit when related to the facts disclosed. A failure to enforce the law does not change it.
Louisville v. N.R.R. Co. v. U.S., 75 L.Ed. 407; W.J. Miller, Tax Collector v. Y. M.V.R.R. Co., 132 So. 597.
The state tax collector is entitled to commissions only only on "funds" collected and paid over by him.
Miller v. Delta Pine Land Co., 74 Miss. 110; Garrett v. Robertson, 120 Miss. 731; Robertson v. Shelton, 127 Miss. 360; Miller v. Henry, 139 Miss. 651.
Chalmers Potter, of Jackson, S.C. Mize, of Gulfport, and J.H. Sumrall, of Jackson, for appellees.
The method for compensating the office now known as "state tax collector" has been uniform since the office of state revenue agent was first created by statute. This method consists of the right to receive twenty per cent commission on all amounts collected and paid over to the state, or any of its subdivisions, as a result of the activities of such officer, in matters coming within his powers and duties as provided by law.
Section 6999, Code of 1930.
This statute has been construed by this court in a manner which forever sets at rest any question as to whether or not the state tax collector must actually collect the money before he is entitled to commissions on such collections.
Adams v. Bolivar County, 75 Miss. 154; Miller v. Henry, 139 Miss. 651.
Not only does the scheme provided by chapter 88, Laws of 1930, as a whole indicate the correctness of the method used in making the collections involved in this case, and especially when compared with corresponding sections in prior laws on the same subject, but section 239 of said chapter 88, settles all questions, as to what is contemplated by said laws when it specifically provides for a variation in the compensation of the tax collector making the collection, when made of his own volition, or when made at the instance of the state tax collector.
Contemporaneous departmental construction, long acquiesced in, becomes established law.
Lewis Southerland Statutory Construction; Hahan v. U.S., 27 L.Ed. 527; Plummer v. Plummer, 37 Miss. 185; Brittain and Henry v. Robertson, State Revenue Agent, 120 Miss. 684; Robertson v. Texas Oil Company, 141 Miss. 356; Miller v. Y. M.V.R.R. Co., 132 So. 597.
Appellees brought this action in the circuit court of Hinds county against appellant for a writ of mandamus, requiring appellant to receive and file a report of appellee Havens, tax collector of Harrison county, showing collections of privilege taxes, and damages thereon, and deductions therefrom of commissions claimed by him, and also by the state tax collector. There was a trial before the circuit judge, sitting as both judge and jury on appellees' petition for the writ of mandamus, and appellant's plea thereto, and evidence, resulting in a judgment in appellees' favor. From that judgment appellant prosecutes this appeal.
The question in the case is whether both the state tax collector and the county tax collector are entitled to commissions on the damages imposed by law on delinquent privilege taxpayers, where such delinquent taxes and damages are collected by the county tax collector at the instance of the state tax collector.
The evidence in the case established the material allegations of appellees' petition for the writ of mandamus. Probably no better statement of the case could be made than to set out the petition itself, which, leaving off the formal parts and the exhibits, is as follows:
"Comes W.J. Miller, State Tax Collector, who sues in the name of the state of Mississippi for aid in the conduct of his official duties, and J.W. Havens, Sheriff, and Tax Collector of Harrison county, Mississippi, who would respectfully show unto the court the following facts, to-wit:
"Your petitioner, W.J. Miller, is the duly elected, qualified and acting state tax collector of the state of Mississippi, and J.W. Havens is the duly elected, qualified and acting tax collector of Harrison county, Mississippi.
"Your petitioner, W.J. Miller, would further show that by law it is made his duty to proceed by suit, in the proper court, against all persons, corporations, companies, and associations of persons, for all past-due and unpaid taxes of every kind whatever except income and inheritance taxes.
"It is also made the duty of petitioner, W.J. Miller, to investigate the books, accounts and vouchers of all fiscal officers, and depositories of the state, and of every county, municipality, levy board and taxing district of every kind, and to sue for, collect and pay over all money improperly withheld by such fiscal officer of depository.
"Your petitioner, W.J. Miller, would further show that in the performance of the duties imposed upon him by law, and in the exercise of the powers conferred upon him by law, where privilege taxes due to the state of Mississippi, or any municipality or levee district thereof, are discovered to be past due and owing he proceeds, as all of his successors in office have done, in the following manner to bring about the collection of such taxes, together with such damages as may be imposed by law for such delinquency.
"Your petitioner, as state tax collector appoints deputies who are competent to perform the duties necessary in connection with such matters, and said deputies are sent to the several counties of the state, charged with the duty of making such investigations as may be necessary to discover whether or not any person, firm or corporation may be engaged in any business, occupation or calling for which a privilege tax is imposed by the laws of the state, without the payment of such privilege tax.
"When such deputies discover any person, firm or corporation engaged in any business for which a privilege tax is required, and when such person, firm or corporation is unable to exhibit a proper license covering the period when such privilege was enjoyed, and if upon examination of the records of the tax collector, charged with the duty of collecting such tax, there is no record of the issuance of any proper license to such person, firm or corporation, then such deputies upon the facts obtained from such examination and investigation, following the proceeding provided by statute, by taking the steps necessary to enforce the payment of such delinquent taxes through the local tax collector.
"The person, firm or corporation discovered to be delinquent for the privilege tax is notified of such delinquency, and the discovery thereof, by a printed form upon which is written the name and address of the delinquent, the section of law imposing the tax upon the business, profession or calling, etc., the period for which the tax is delinquent, the amount of the privilege tax for each year and the damages imposed by law for such tax for the delinquency, and the total amount due for both tax and damages, for the period of delinquency, which notice and demand also contains the name of the tax collector of whom collection of said tax and damages has been required, he being the local tax collector, primarily charged with the duty of collecting the tax and damages, and having the right to take coercive measures provided by statute, and he alone being authorized to issue the license and make the record of issuance thereof, in all except certain specified cases.
"Your petitioner would show unto the court that prior to the first day of September, 1930, a certain deputy of petitioner, W.J. Miller, state tax collector, discovered that certain persons operating businesses in Harrison county, Mississippi, upon which privilege taxes were required, had not made payment of the privilege taxes so required to the county tax collector, and upon such discovery the deputy made demands upon the tax payers, copies of said demands being hereunto attached and marked Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, and prayed to be taken and considered a part hereof as fully and completely as if copied herein, and thereafter said petitioner, W.J. Miller, as state tax collector, notified the tax collector of Harrison county, Mississippi, that the privilege taxes above referred to, and due and owing by the parties set up in Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, were past-due and unpaid by the persons, firms or corporations shown thereon, a copy of said notification and demand upon the tax collector of Harrison county, Mississippi, to proceed with the collection of said delinquent privilege taxes being hereto attached and marked Exhibit 10, and prayed to be taken and considered a part hereof as fully and completely as if copied herein.
"Your petitioner would show unto the court that the sheriff and tax collector of Harrison county, to-wit: Joseph W. Havens, did not know, prior to the demand made upon him to proceed with the collection of said delinquent privilege taxes, that the parties owing said privilege taxes were delinquent, and said matter was first called to his attention by the action of your petitioner, W.J. Miller, as above set forth, and acting upon said information and said demand, and solely because of such information and demand, said sums were collected by said Joseph W. Havens, as a result of the activities of petitioner, W.J. Miller, and said delinquent privilege taxes would not have been collected by the said Havens except for such activities on the part of petitioner, W.J. Miller.
"Your petitioner would show that thereafter, as was required of him by law, petitioner Joseph W. Havens filed with the defendant, Carl C. White, Auditor of Public Accounts of the state of Mississippi, a certain report, showing the amount of delinquent privilege taxes collected by him at the instance of the state tax collector, from the first day of August, 1930, to the first day of September, 1930, a copy of said report being hereto attached and marked Exhibit 11, and prayed to be taken and considered a part hereof as fully and completely as if it copied herein, and petitioner, Joseph W. Havens, tendered with said report his remittance, less the commissions allowed him by law, and also less the commissions allowed petitioner W.J. Miller by law.
"Your petitioners would show that the defendant, White, received said remittance, but refused to receive and accept, the report accompanying said remittance, as shown by letter from the said defendant, White, to petitioner Havens, a copy of said letter being hereto attached and marked Exhibit 12, and prayed to be taken and considered a part hereof as fully and completely as if copied herein.
"Your petitioners would show that the said White is now contending that petitioner W.J. Miller is not entitled to receive the twenty per cent commission allowed him by law for his services in connection with the collection of delinquent taxes above set forth, and is demanding from and of petitioner Havens the twenty per cent deducted by the said Havens, to-wit, the sum of two hundred eighty-nine dollars and twenty cents, and is now attempting to hold that your petitioner, Havens, is in default under the provisions of an opinion issued by the attorney general of the state of Mississippi, to said defendant White, and is advising petitioner, Havens, that in the event of failure on his part to settle upon the basis of the opinion of the attorney general, a copy of which is hereto attached, marked Exhibit 13, and prayed to be taken and considered a part hereof as fully and completely as if copied herein, that said petitioner Havens will be liable for the thirty per cent penalty.
"Your petitioners would show that unless and until the said report is received and filed by the defendant as state auditor, as required by law, there can be no final settlement of the items therein shown, as between the petitioner, Havens, and the state of Mississippi, and as between the petitioner Havens and the petitioner Miller, and the receipt of said report by the said defendant, White, is a duty imposed upon him by law, the performance of which the law specifically enjoins, as a duty resulting from his office, and the petitioners have not a plain, adequate and speedy remedy in the ordinary course of the law."
The correctness of the exhibits was agreed to by a stipulation between the parties, made a part of the record.
Section 6999 of the Code of 1930 provides, among other things, that the state tax collector shall retain 20 per cent, of all amounts collected and paid over by him. This provision of the statute has been brought forward in substantially the same form in all the codes and statutes since the Code of 1892. Construing the statute in Adams, State Revenue Agent, v. Bolivar County, 75 Miss. 154, 21 So. 608, the court held that the revenue agent was entitled to the compensation provided by statute, where he made an investigation of a defaulting tax collector's accounts, and the money was afterwards paid over either to him or to some other official entitled to receive it, regardless of whether he had brought suit therefor. The holding of the court in the Bolivar County Case was recently reaffirmed in Miller v. Henry, 139 Miss. 651, 103 So. 203.
Section 225 of chapter 88 of the Laws of 1930 makes it the duty of the county tax collectors to collect all delinquent privilege taxes and the damages thereon; and "account for all such penalties, less commissions, as they are required to account for other privilege taxes." Substantially all this same provision has been a part of the revenue statutes of the state for many years, having been re-enacted time and again. Section 239 of chapter 88 of the Laws of 1930 is in this language: "On all privilege taxes not paid during the month when due and on which a penalty is collected, the tax collector making such collection shall be entitled to retain one-fourth of said damages, as compensation for his extra services, in addition to the regular commission now allowed by law on regular collections; provided however that if such collection is made by such tax collector, at the instance of the state tax collector, or through his authorized deputies, the said tax collector shall receive only ten per cent of said damages, in addition to the regular commissions allowed by law on regular collections."
It is true that there is no decision of the Supreme Court directly in point sustaining the contention of either side in this case. Nevertheless, it has been the unvarying custom for many years for both the state tax collector and the county tax collector to retain their commissions out of the damages collected from delinquent privilege taxpayers when collected at the instance of the former. As set out in the petition in this case, that has long been the construction put on the statutes involved by the different departments of the state government. All departments of the state government concerned therewith have been governed in their acts by that construction. In re-enacting the statutes the Legislature is presumed to have known of, and adopted, such construction. This principle applies with special force where a statute is not entirely free from doubt. W.J. Miller, State Tax Collector, v. Yazoo M.V.R. Co. (Miss.), 132 So. 597; U.S. v. Cerecedo Hermanos Y. Compania, 209 U.S. 337-339, 28 S.Ct. 532, 52 L.Ed. 821; U.S. v. G. Falk Bro., 204 U.S. 143, 27 S.Ct. 191, 51 L.Ed. 411.
We think, by the enactment of section 239 of chapter 88 of the Laws of 1930, the legislature, in plain and unmistakable terms, put that construction on the statute. It provides that the county tax collectors shall receive one-fourth of the damages collected on delinquent privilege taxes, as compensation for their extra services, and, in addition their usual commissions allowed by law on regular collections, unless such delinquent privilege taxes are collected at the instance of the state tax collector, or through his authorized deputy. In such cases the county tax collectors are to receive only ten per cent of the damages, in addition to their regular commissions. The statute clearly implies that, where the state tax collector has a part in the collection, then the county collector's commissions on the damages are reduced from twenty-five per cent to ten per cent, for the reason that the state tax collector also receives his commission on the damages.
The state loses nothing if the position of appellee be correct, because, after deducting the commissions provided for both the state tax collector and the county tax collectors, there is still left more than one hundred per cent of the original privilege tax due.
Affirmed.