Miller v. Delta & Pine Land Co. , 74 Miss. 110 ( 1896 )

Cooper, C. J.,

delivered the opinion of the court.

In Anderson v. Hawks, 70 Miss., 639, we held that the ten per centum on taxes collected by the tax collector after December 15, allowed by § 2021 of the code, was not in the nature of a penalty, but was allowed as compensation for additional services to be performed by the collector, and that when no action had been taken by the collector to coerce payment of the taxes, he was not entitled to recover the per centum, although the taxes were not tendered by the taxpayer until after December 15, the day named in the statute. The present appeal rests upon different facts. The appellee remitted to the collector a certified check for the amount of its taxes, which came to his hands on January 14. This check the collector refused to accept in payment of the taxes, because it was not money, and because, also, it placed the funds at a point at which he did not desire a deposit. The check was remailed to appellee on the day of its reception by the collector. By the first available means of communication the appellee sent to the collector the proper amount in money, which was tendered to him by the agent of the appellee at 6 o’clock r.m. on the sixteenth of January. The collector then refused to accept the taxes unless the additional ten per centum thereon was paid.

On the thirteenth of January the collector, through his employes, began to prepare the list of lands which were delinquent for taxes. The list was completed on the fifteenth and a copy thereof handed to the editor of the county paper for insertion in the next issue, and by é o’clock on the evening of the sixteenth proof was struck off and handed to the collector. The paper was issued some time in the evening of that day. On the morning of the sixteenth (before 9 o’clock) the collector posted on the door of the courthouse a list of the delinquent lands. Upon the refusal of the collector to accept the tender of the sum due for taxes on the sixteenth of January, the appellee Hied its bill, paying into court the amount of the taxes, and procured an injunction restraining the collector from making sale of the lands for the ten per centum claimed by him as additional compensation. On final hearing, the amount paid into court by the appellee, together with the sum of $50 for printer’s fees and $63 the advertising fee found by the court to be due to the collector, was directed to be received by him in full satisfaction of all demands against the complainant, and the injunction was thereupon made perpetual. From this decree the collector appeals.

By our statutes it is made the duty of all persons to pay the taxes assessed against themselves or their property on or before the fifteenth day of December (code, § 3801), and after that day it is made the duty of collectors to collect all taxes by distress and sale of personal property (code, § 3802). Section 3811 of the code provides that “after the fifteenth day of January the tax collector shall advertise all land in his county on which the taxes have not been paid, or which is liable to sale for other taxes, for sale at the door of the courthouse of his county on the first Monday of March following. Such advertisement shall be inserted for three weeks in some newspaper-published in the county, if there be one, and be put up at the courthouse door, and shall contain a list of the lands to be sold in numerical order as they are contained in the assessment roll.”

The appellee contends that the collector is not entitled to demand the additional compensation, for the reasons: (1) That he was advised by the remittance of the certified check that the appellee was in good faith endeavoring to pay its taxes, and should have allowed a sufficient time, after he had .declined to receive the check, to enable appellee to remit to him the money; (2) that the law only requires publication of the delinquent lands to be made for three weeks, and the collector was therefore premature in making the publication on the sixteenth of January, and should not be permitted to claim that what he thus unnecessarily did was the discharge of official duty; (3) that the compensation was not earned, because no sale was in fact made.

If the collector was authorized by the law to advertise the land for sale, we are unable to see that the power was at all limited by the circumstances of the appellee. It may have been an ungracious and harsh insistence upon a legal advantage, and the advertisement may have been made at the very earliest permissible time, for the purpose of fixing upon the appellee liability for the additional sum, but the law cannot test the validity of individual action by the motives which impel the actor. A legal act having legal consequences only, is not rendered illegal by the fact that it is done with an avaricious or unworthy purpose. We do not so characterize the conduct of the officer. We only say that, conceding what the appellee avers to be true, we know no principle upon which the law would condemn the act. The appellee negligently omitted to pay its taxes until the period in which they might be paid was about to expire, and assuming, without any suggestion from the collector, that he would accept a check for the taxes, made its remittance in that form. That he was under no obligation to receive the check, the appellee admits. If this be true, as it unquestionably is, we fail to perceive what legal right of appellee was infringed by the officer in making advertisement of the lands at the earliest permissible time.

We are also of opinion that what was done by the collector was within both the letter and spirit of the statute.' After January 15, the collector was vested with discretion as to when the advertisement shall be made. On January 16, or on any other succeeding day, he might lawfully have proceeded with the publication; but the statute fixed the price which should be paid to the printer, and no additional sum could have been paid by reason of the publication being made for a longer period than that prescribed — three weeks. We cannot concur in the view that the additional compensation cannot be demanded by the officer unless the collection is made, by an actual sale of the property. A collection by resorting to any of the" plans named in the statute entitles the 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. Whether the collection is made by virtue of a proceeding, initiate or complete, it is by the proceeding it is made, and the right to the compensation exists, because, otherwise, whether it would be payable at all would depend upon the will of the delinquent taxpayer, rather than upon the letter of the law.

The decree .is reversed, the injunction dissolved, and the bill dismissed.