Bauer v. Little , 102 Miss. 351 ( 1912 )

Cook, J.,

delivered the opinion of the court.

It is admitted that the taxes assessed against the land in controversy were not paid, and that the lands were struck off to the state by the tax collector. The sale was duly advertised and made at the time and place provided by law. The sale and proceedings precedent to the sale are governed by the Code of 1871. A single item contained in the list of lands advertised is relied on to invalidate the advertisement and sale. The advertisement, after stating the name of the owner, division of section, description, state tax, county tax, total tax, and other legitimate items of cost, there follows the further item: “Collector’s five per cent additional, seventeen cents.” This last item is challenged, and it is contended that it was an illegal charge against the land, and rendered the sale absolutely void. The chancellor adopted this view of the case, .and sustained appellee’s demurrer to appellant’s bill of complaint filed to confirm his title to the land purchased from the state. Stating it another way, appellee contends that the additional compensation of five per cent allowed to the collector by section 1699 of the Code of 1871 “on all taxes collected by bim after the first day of December” means such taxes as “are collected from the delinquent taxpayer by distress, or otherwise,” and that “distress, or otherwise,” does not mean the sale of the land for unpaid-taxes and “all costs and charges” mentioned by section 1697 of the same Code.

This construction of the statutes is, in our judgment, unsound and untenable, and seems to be based upon the clause in section 1704 which provides that the auditor, in his settlements with the tax collector, shall not credit him with the commission of five per cent on lands sold for taxes and struck off to the state. We construe section 1699 to mean that the taxes on all lands became delinquent, which remained unpaid after the 1st day of December, and that the tax collector, between December 1st and January 1st, was authorized to collect the taxes and charges, including his additional compensation, by distress upon personal property, and, if not collected in this way, on January 1st the collector was required to collect the taxes, and “all costs and charges,” by the sale of the land in the manner prescribed by sections 1697 and 1698.

The penalty, if penalty it is, was incurred by the failure to pay the taxes before December, and to say that the tax collector could not proceed against the land, but is confined to his suit at law, or distress upon personal property, is unwarranted by any reasonable construction of the scheme provided by law for the collection of delinquent taxes. The section disallowing the collector his commissions in his settlements with the auditor has nothing to do with the rights of the delinquent taxpayer, and it may be that the collector would still have a right of action against the delinquent when the lands are struck off to the state; but, however that may be, the collector was authorized to list his five per cent additional compensation, and to collect the same, if he could from the delinquent taxpayer by a sale of his land.

The lawmakers favored the collection of all land taxes by a levy upon the personal property of the delinquent taxpayer. Section 1697 reads thus: ‘ ‘ On the first Monday of January, if the taxes shall remain unpaid, and no sufficient personal property can be found on which to levy the same, the collector shall proceed to sell said land, or so much ... as will pay the amount of taxes due by him, and all costs and charges.” The additional commissions to the collector accrue after the 1st day of December, and when collected, either by distress or otherwise. Not having collected the taxes by distress, he proceeded to collect same “and all costs and charges” by sale of the land.

Reversed and remanded.

Reversed and remanded.