Gully v. Lincoln County , 184 Miss. 784 ( 1939 )

The argument pursued in the suggestion of error, when analyzed to the end to which it would lead, is to the effect that the State Tax Collector has the right to sue at any time after the taxes become due, that is, at any time after February 1st. This contention was so thoroughly discussed in conference and was so definitely rejected by the majority of the Court that further reference to it need not be made.

The suggestion of error relies on two previous cases: Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, and Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324. In the Delta Land case, there was involved a back-tax assessment for a number of past years, and it was expressly averred that the taxes could not be collected by distraint or the other ordinary processes for such collection — could not be collected under the usual and normal plan or scheme provided by the general statutes. In the Nickey case, the sheriff advertised the lands for sale, but before sale he decided that the sale would be ineffective and he himself, the sheriff, applied to the Attorney-General to bring the suit, which was done in July, following the advertised tax sale in April.

In the Nickey case on page 672 of 167 Miss., 145 So. on page 633, the Court took particular caution to guard the opinion therein from the construction of it, which appellant urges upon us in his suggestion of error. There the Court said: "We have not a case here where the state has interfered with the collection of these taxes by tax collector through the statutory scheme. It was agreed in the record that the tax collector abandoned the statutory scheme, and agreed for the state to bring this suit. The suit is the result of co-operation between the Attorney General and the tax collector. It was thought by them that the taxes might be collected by this suit, but probably could not be by the tax collector. This is not a case where the state has pushed the tax collector out of the way, and taken charge of the situation. It is therefore unnecessary to decide in this case how far the state can go in interfering with the tax collectors in the performance of their statutory duty in the collection of taxes."

The opinion in the present case, now challenged, had such cases as the Delta Land case and the Nickey case, and others heretofore decided, and still others which under exceptional facts may arise in the future, in mind in the concluding paragraph, page 797 of 185 So. No. 5, which concluding paragraph is as follows: "It is to be noted that we are not here dealing with a case where the taxpayer has denied all liability, as, for instance, where he claims an exemption, or that the assessment is void, or that for any alleged reason the warrant of the assessment is invalid, or the like. Cases of that kind will be dealt with as they arise."

Much water has passed under the mill since the decisions in cases rendered previously to the present case. The unfortunate experiences of the days that fell upon the people beginning in 1930 have shown the way towards an amelioration of the powers of the tax gatherer to pounce upon the taxpayer on the tick of the clock. These experiences caused the Legislature in 1932 to adopt the installment plan of tax payments, something theretofore unknown to the laws of this state; and it seems now fairly certain that this more liberal plan will remain as a permanent feature of our tax-collecting system. Laws 1932, Ex. Sess., c. 383, sec. 1; Laws 1934, c. 188, secs. 1, 5, 7-9.

Under that plan the taxpayer may pay one half on or before February 1; one quarter on or before May 1, and the last quarter on or before August 1; and if the taxpayer has failed of payment of one or both his first two installments he may reinstate himself as an installment payer by paying previous installments plus "all fees, interest and costs accrued." The interest rate provided for the exercise of that privilege is one half of one per cent per month or six per cent per annum, which is as high a rate as the state or any of its subdivisions have ever paid for money borrowed.

But the contention of appellant, if sustained, would take the heart out of the installment system. Under his contention, as soon as the taxpayer becomes delinquent of his first installment, the state tax collector could at once institute suit, and thereupon his fees of twenty per cent would, according to his contention, at once accrue to him, and which would have to be paid either by the county or by the taxpayer. This, if the county has to pay it, would cost the county twenty per cent, when, as already said, no county has ever had to pay more than six per cent for money. To get around this result, which manifestly no legislature would ever have authorized by express words of legislation as applicable to the installment period of six months, it is said that the taxpayer must pay this twenty per cent as a part of "all the fees, interest and costs accrued." Such a requirement, with all deference to those who contend for it, would render the installment plan of payment the most grotesque mockery that was ever perpetrated.

Here is a plan to aid the people in the payment of their taxes in installments at 6 per cent interest, and to extend that aid throughout the whole period of six months, and nonetheless to those who unfortunately were not able to meet the first or second installments upon exact time; and then here comes the State Tax Collector who says to those last mentioned "You will pay me an additional 20 per cent if you want to avail of the so-called installment plan." Could anything have been further from the contemplation of the Legislature? What more could the court do to despoil the latest legislative act of its spirit and substance than to adopt the contentions here made in behalf of appellant? What good is an installment plan for six months, which, as to the more unfortunate of its intended beneficiaries, would require a twenty per cent premium to make it available? To allow the contentions of appellant to prevail would be to put it in his power to work, in a large measure, a repeal, in practical aspects, of the installment legislation, and certainly so as to all the particular taxpayers whom he should select to feel the force of his bludgeon. In what has above been said we speak of the office of State Tax Collector and its powers, and of what can and cannot be done under those powers, and, of course, is wholly without reference to who now is or may hereafter be the occupant of that office.

The suggestion of error is therefore properly overruled.