Brame v. Wyatt , 197 Miss. 679 ( 1945 )

DISSENTING OPINION. Section 1790, Code 1930, has not been amended by any subsequent act and now appears as Section 3938, Code 1942. It reads as follows:

"Save as to the excess one per cent commissions mentioned in the foregoing section tax collectors in deducting commissions for the collection of ad valorem taxes shall deduct said commissions based upon the fiscal year and not the calendar year."

The chapter in question, Chap. 179, Laws 1944, does not touch Section 1790, Code 1930, does not mention it, but does refer to the "following fees and commissions each year." It follows that what is meant by each year as applicable to the amendatory act now under consideration, must find its answer in Section 1790, Code 1930, Section 3938, Code 1942, and nowhere else.

What, then is meant by Section 1790, Code 1930, when it says that the "tax collectors in deducting commissions for the collection of ad valorem taxes shall deduct such commissions based upon the fiscal and not the calendar year," and what is meant by the clause in all these statutes, "5% on the first $25,000.00" (or whatever the amount has been) "of the state ad valorem taxes collected"? If it does not mean the first $25,000 collected within the fiscal year, then Section 1790 is without any meaning at all.

Under Section 9993, Code 1942, the tax collector is required within twenty days after the close of any month to report and pay over all taxes collected by him during the month. In doing so he deducts his fees for making the collections. This section, in substantially the same form, has been in all our codes for nearly a century. Under that section it has been the consistent practice to deduct the higher bracket of fees on the first month at the beginning of the fiscal year. Formerly the fiscal year was from October 1 to September 30, as fixed by Section 115, Constitution 1890, but this was amended, Chap. 115, Laws 1935, so as to make the fiscal year from July 1 to June 30.

The admitted facts show that the tax collector had already made his deductions under the higher brackets, for the fiscal year, but his attempt here is to start a new year on April 1 for application of the higher brackets when this is neither the beginning of a fiscal year nor of a calendar year. So to do would be to allow thim to start another higher bracket on July 1 at the opening of the fiscal year, with the result that two series of the higher bracket would be applied during one fiscal year when the law has never allowed more than one such higher bracket in any one year, and more cannot be allowed, as was distinctly held in Hartsfield v. Lafayette County, 185 Miss. 564, 189 So. 177, and certainly not unless by an amendment to Section 1790, Code 1930, Section 3938, Code 1942, which, as already stated, the Act now in question does not touch. If the legislature did not intend that Section 1790 should be considered as applying to the new Act it could easily have said so, and, not having so said, it is not within the province of the Court, as is submitted with deference, to now say it for the legislature.

The Act here under consideration is amendatory of Section 1789, Code 1930, and from the date of the Act, it stands as if it had been in the Code of 1930, and Section 1790 immediately follows in the language first above quoted; wherefore it has the same effect upon the new Act as had Section 1789 been added to the new Act as the last section thereof — unless without legislative authority a plain section of the Code is to be stricken down, which is beyond the legitimate authority of any court to do.