Garrett v. Robertson , 120 Miss. 731 ( 1919 )

Sykes, J.,

delivered the opinion of the court.

Stokes V. Robertson, state revenue agent, filed suit in the circuit court against the sheriff and tax collector of Leflore county for the sum of nine hundred and ninety-three dollars and sixty-seven cents, being twenty per cent, of the amount of county taxes of two banks of Greenwood paid to the sheriff. Plaintiff avers that these taxes were paid to the sheriff as the result of two suits instituted hy him against these hanks; that the tax collector had paid over- to the county its share of these taxes, hut that he retains and has in his possession the twenty per cent, commissions due the revenue agent. After a demurrer was overruled to the declaration, the tax collector filed a plea to the general issue, and gave notice of certain facts which will be referred to in stating the case.

The state revenue agent originally instituted suits against these two banks for taxes for the year 1916. The facts relating to these suits are fully set forth in the opinion of the court in the case of Robertson, State Revenue Agent, v. First National Bank of Greenwood, 115 Miss. 840, 76 So. 689. After the decision in that case the tax assessor of Leflore county attempted to assess these two. banks for taxes, for the year 1916, as having escaped taxation for that year, under section 4277, Code of 1906 (section 6911, Hemingway’s Code). The attorney for the revenue agent, acting under instructions from him, after 'the above decision of the court, called upon the attorneys for the hanks and .requested them to settle these taxes in accordance with the assessment of the hoard of supervisors as shown by their order of September, 1916. The attorney for the banks declined to do this. The revenue agent then instituted suits against these two banks, based upon this September assessment of the board of supervisors. Various conferences were held in attempting to adjust the. matter between the attorneys and the board of supervisors, resulting in some kind of an agreed order entered by the board of supervisors relating to these assessments. Under agreement of all parties the banks then paid the assessment of the September order of 1916 of the board of supervisors, to the tax collector, who in accordance with an agreement with the state revenue agent distributed these funds to the state, county, and levee board, retaining therefrom, the twenty per cent, claimed by the revenue agent, and still has in his possession the amount herein sued for.

The appellant makes two contentions for a reversal of this case: First, that the consent order of the board of supervisors on its face shows that the hanks paid their taxes in pursuance of this order, prepared by the attorney for the bank, in accordance with the decision of this court; second, that the state revenue agent should have first presented his claim to the board, before suing the tax collector.

Section 4738, Code of 1906 (section 7056, Hemingway’s Code), makes it the duty of the state revenue agent to proceed by suit in the proper court on past-due and unpaid taxes of any kind. At the time of the institution of the suits against these two banks, based upon the September, 1916, assessment of the board of supervisors, these taxes were past due and unpaid, and the banks before suit declined- to pay them. As a direct result of the activity of the revenue agent and the institution of these two suits, the banks paid the full amount of this assessment. The mere fact that the money was paid to the tax collector, instead of to the revenue agent, makes no difference. Adams v. Bolivar County, 75 Miss. 154, 21 So. 608; Miller v. Land Co., 74 Miss. 110, 20 So. 875.

Neither is there any merit in the contention that this claim,should have been first presented to the board of supervisors. The revenue agent was entitled to twenty per cent, of the amount collected. Under an agreement with the sheriff and the tax collector this amount was retained by him pending this litigation-. It is not a trust fund, nor funds belonging to the county, but funds belonging to the revenue agent, merely held by the sheriff. Tutte v. Everett, 51 Miss. 27, 24 Am. Rep. 622; Vicksburg v. Butler, 56 Miss. 72; Huntley v. Bank of Winona, 69 Miss. 663, 13 So. 832; Zemurray v. Bouldin, 87 Miss. 583, 40 So. 15. The lower court rendered judgment in favor of the revenue agent for the amount sued for, which was correct, and the judgment is therefore affirmed.

. Affirmed.