Coker v. Wilkinson

^* Corpus Juris-Cyc. References: Statutes, 36 Cyc., pp. 1071, n. 25; 1087, n. 92; 1110, n. 54; 1128, n. 54; 1129, n. 59; 1147, n. 25. Towns, 38 Cyc., pp. 622, n. 26 New; 623, n. 40, 45; 626, n. 94; 655, n. 94. Appellee, J.L. Wilkinson, brought his bill in the chancery court of the second district of Bolivar county against appellant, R.L. Coker, to recover from the latter the fees and perquisites of the office of tax collector of the town of Shelby, received and enjoyed by appellant for the years of 1923 and 1924 while acting as such tax collector, upon the ground that appellant was a usurper of said office and appellee had been legally elected thereto and therefore entitled to such fees and perquisites. Appellee recovered a judgment for one thousand five hundred twenty-four dollars and forty-six cents, from which appellant prosecutes this appeal.

At a regular municipal election of the town of Shelby, which is a town and not a city, under the statute, appellant was elected town clerk of said municipality, and appellee was elected marshal thereof for the two-year term of 1923 and 1924. At the same time a mayor and board of aldermen for said town were elected. None of these officers, including appellant and appellee, gave bond, took the oath of office, or any other step to qualify for the performance of their official duties until the latter part of 1923. At the January, 1924, meeting of the mayor and board of aldermen, all of said officers tendered bonds for the faithful performance of their duties, which were approved by the mayor and board of aldermen under the authority of section 3378, Code of 1906 (Hemingway's Code, section 5906). The bond tendered by appellee recited that he had been elected marshal, and the condition of the bond was that he would faithfully perform the duties of that office. Appellee's bond was approved along with the other bonds of the officers of the town. He tendered no bond as tax collector.

Appellant's first contention is that he was legally elected tax collector of the town of Shelby, and was therefore entitled to the emoluments of the office; that under section 3375, Code of 1906 (Hemingway's Code, section 5903), the mayor and board of aldermen had the authority to elect him to that office; while appellee's contention is that, under that statute in towns and villages (Shelby being a town) the marshal holds the office of tax collector, and that the statute is mandatory to that effect.

Appellant argues that there are two conflicting clauses in the statute; the first, providing that in towns and villages the marshal shall be the tax collector, and the one in the sentence following providing that if the mayor and board of aldermen shall so elect, the clerk or marshal may be tax collector; and that the latter clause being in conflict with the former and being the last expression of the legislature on the subject, must stand and the former go down under the principle of law that, where there are two conflicting provisions in the same statute, the last expression of the legislature must prevail over the former. Undoubtedly that principle of statutory construction is sound. The question is whether it applies to the statute here involved. There is another principle for the construction of statutes as well settled as that, which is that a statute must receive such a construction that it will, if possible, make all of its parts harmonize with each other and render them consistent with its purpose and scope. The entire statute must be so read that the "whole may have a harmonious and consistent operation." The object is to get at the design and scope of the statute. Only that construction will be justified which evidently carries out the purpose of the law. The entire legislation on the subject must be considered, and when the entire legislation on the subject consists of one statute, any conflicting provisions in the statute must, if reasonably possible, be reconciled so as to make the statute a consistent, workable scheme. Adams v. Y. M.V.R.R. Co., 75 Miss. 275, 22 So. 824. Repeal of statutes by implication will not be assumed to have been the purpose of the legislature. Such repeals are not favored. Where one statute deals with a subject with particularity, and a later one in general terms, and contains no negative words, the rule is that the prior statute is not thereby repealed unless they are so repugnant as to demonstrate the legislative purpose to do so. Madison County v. Stuart, 74 Miss. 160, 20 So. 857.

The first clause of the statute involved dealing with the subject of who shall occupy the office of tax collector is in this language:

"The marshal may be the street commissioner; and in towns and villages he shall be the tax collector, and may be in a city." (Italics ours.)

In another sentence of the statute following that, this language is used:

"The clerk or marshal may be tax collector or assessor, if the mayor and board of aldermen shall so elect."

Appellant argues that the first provision of the statute quoted, although mandatory in its terms, that in towns and villages the marshal shall be the tax collector, is repealed by the subsequent provision, equally mandatory, that the clerk may be tax collector if the board of aldermen shall so elect. As we view the statute, those two provisions are not necessarily conflicting. The last phrase in the first provision of the statute, "and may be in a city," we think, is the key by which the two provisions may be reconciled and the statute made a consistent whole, giving both provisions the meaning intended by the legislature. We are of the opinion that the true meaning of the statute is that in towns and villages the marshal shall be tax collector, and that in cities the clerk or marshal may be the tax collector if the mayor and board of aldermen shall so determine. Appellee therefore was entitled to the office provided he qualified for entrance upon its duties as required by law.

Appellant contends, however, that appellee failed to qualify for the duties of the office as required by law, on or before the commencement of his term of office, and therefore, under chapter 32, Laws of 1917, a vacancy occurred in the office, and whether the vacancy was legally filled or not is no concern of appellee. Chapter 32, Laws of 1917, pp. 24, 25, provides, among other things, that if any person elected to any office, state, county, district, or municipal, "shall fail to qualify as required by law on or before the day of commencement of his term of office, . . . a vacancy in such office shall occur thereby."

Did appellee qualify, as required by law, on or before the day of commencement of his term of office? Appellee's position is that although he failed to give bond as marshal until the latter part of the year, 1923 (the first year of his term), he was inducted into the office of marshal and performed the duties of the office, and, in December, 1923, tendered bond to the mayor and board of aldermen for the faithful performance of the duties of the office of marshal, which was accepted and approved by the mayor and board of aldermen at their meeting in January, 1924; and, by virtue of being in possession of the marshal's office, he was ex officio tax collector, and no separate bond was required of him as such tax collector; that his bond, as marshal, covered his entire official duties both as marshal and tax collector. The question is resolved into this: Whether in towns and villages, the marshal, who is also tax collector, is the holder of one office or two offices. Is, as is contended by appellee, the marshal by virtue of his office the tax collector? We think that question is solvable by the plain language of the statutes on the subject. Section 3375, Code of 1906 (Hemingway's Code, section 5903), provides, among other things:

"That the officers of every municipality shall be a mayor, alderman, a marshal, a tax collector [italics ours], a clerk, a street commissioner, and, in cities and towns not having depositories, a treasurer."

Section 3394, Code of 1906 (Hemingway's Code, section 5922), provides that the marshal shall be ex officio a constable, and shall be the chief of police thereof, and shall perform all other duties required of him by ordinance. Section 3331, Code of 1906 (Hemingway's Code, section 5828), provides that the mayor and board of aldermen shall prescribe by ordinance the duties and fix the compensation of officers and employees, and require bonds with sureties for the performance of their official duties. Section 3378, Code of 1906 (Hemingway's Code, section 5906), provides, among other things, that "all bonds payable to the municipality shall be approved by the mayor and board of aldermen" thereof. Section 268 of the Constitution provides that all officers elected or appointed to any office in this state, except judges and members of the legislature, shall, before entering upon the discharge of their duties, subscribe to the oath of office laid down in that section of the Constitution.

We are of the opinion that in towns and villages, as well as in cities, the offices of marshal and tax collector are two separate and distinct offices; that in towns and villages, when one is elected to the office of marshal, he is also elected to the office of tax collector, and that the duties of the two offices are separate and distinct; that a separate oath of office for each of said offices is required, as well as a separate bond properly conditioned for the faithful performance of the duties of the office for which it is given. Appellee failed to comply with the law in that respect, which, we think, resulted, under chapter 32, Laws of 1917, in a vacancy of the office of tax collector.

The argument that the mayor and board of aldermen could not accept and approve appellee's bond at the beginning of his term, or at any other time during the year 1923, because they had not themselves qualified for their offices as required by law, is without merit. They were exercising the functions of their respective offices, and were therefore de facto officers under the law, and their acts were legal. Section 3473, Code of 1906 (Hemingway's Code, section 2811), expressly so declares. Greene v. Rienzi, 87 Miss. 463, 40 So. 17, 112 Am. St. Rep. 449; Altman v. Wall, 111 Miss. 198, 71 So. 318.

Appellee was never inducted into the office of tax collector. He never exercised the functions of the office. That was being done by appellant. Appellee held the office of marshal, an office separate and distinct from that of tax collector. He should have taken oath of office of tax collector, should have given a separate bond as such properly conditioned, and should have tendered his bond for acceptance and approval to the mayor and board of aldermen — and all of which should have been done before the commencement of his term of office. Not having been done, there was, under chapter 32, Laws of 1917, a vacancy in the office of tax collector which was filled by the election of appellant to the position. It is true that there was no authority for the election of appellant, but, nevertheless, the appellee had no more right to the office than the appellant.

Reversed, and judgment here for appellant.