Opinion
No. 33672.
May 29, 1939.
1. TAXATION.
In action by sheriff and tax collector against county for balance of commission for collection of poll taxes and commutation road taxes, and for collection of ad valorem taxes during January and February, 1928, general demurrer predicated on unconstitutionality of 1928 statute relied on for recovery of commissions due for collecting ad valorem taxes was improperly sustained as to claim for balance of commissions for collection of poll taxes and commutation road taxes, the amount of which was fixed by 1924 statute and not changed by the 1928 statute (Laws 1924, chapter 206; Laws 1928, chapter 87).
2. ESTOPPEL.
In sheriff's action against county for balance of commissions for collection of poll taxes and commutation road taxes, petition was not demurrable on ground that sheriff was estopped to assert claim because of collection of less amount (Laws 1924, chapter 206).
3. ESTOPPEL.
Estoppel can only be raised by plea and not by demurrer.
4. TAXATION.
Under statutes prescribing graduated scale of commissions to be paid sheriff for tax collections from five per cent for first $10,000 collected to one per cent on amount in excess of $50,000 based on fiscal year commencing October 1, sheriff whose term of office commenced in January would, in absence of valid statute to contrary, be entitled to only one per cent on taxes collected by him for January and February where predecessor had collected higher percentage on first $50,000 collected (Laws 1924, chapter 206; Laws 1926, chapter 193).
5. TAXATION.
The statute providing that tax collector shall be allowed to deduct for services each year commencing with January, 1928, five per cent on first $10,000 of state taxes collected, two per cent on excess of state taxes collected over $10,000 but not exceeding $40,000, and one per cent on excess of state taxes collected over $50,000, manifest legislative intent to change from fiscal year to calendar year in computing commissions, and to permit sheriff to collect five per cent on first $10,000 and two per cent on next $40,000 of state taxes collected (Laws 1928, chapter 87).
6. TAXATION.
Where statute in effect January 1, 1928, prescribed graduated scale of commissions to be paid sheriff for tax collections from five per cent on first $10,000 collected to one per cent on amounts collected in excess of $50,000 based on fiscal year commencing in October, statute approved April 12, 1928, providing for payment of commissions of five per cent on first $10,000 and two per cent on next $40,000 collected, based on calendar year commencing January 1, 1928, was unconstitutional in so far as it attempted to operate retrospectively as of January 1, 1928, as providing for extra compensation to sheriff (Laws 1924, chapter 206, section 2, par. (c); Laws 1926, chapter 193; Laws 1928, chapter 87; Const. 1890, section 96).
7. TAXATION.
The statute approved April 12, 1928, providing for payment to sheriff of commissions of five per cent on first $10,000 of state taxes collected and two per cent on excess of state taxes collected over $10,000, but not exceeding $40,000, and changing basis of computation from fiscal year to calendar year commencing January 1, 1928, could not be upheld on theory that statute manifested legislative intent to allow certain amount in fees as compensation to sheriff by the year, as against contention that statute unconstitutionally provided for grant of extra compensation to sheriff in so far as it purported to operate retrospectively (Laws 1928, chapter 87; Const. 1890, section 96).
APPEAL from the circuit court of Lafayette county; HON. T.H. McELROY, Judge.
Butler Snow, of Jackson, for appellant.
If chapter 87, Laws of 1928, is unconstitutional as applied to compensation for poll taxes and commutation road taxes collected, then appellant is entitled to the amount sued for under the Acts of 1924, as modified by the Acts of 1926. An unconstitutional law is void. It is mere waste paper.
Pearl River County v. Lacey Lbr. Co., 124 Miss. 85.
An unconstitutional or void law does not repeal a prior valid one.
Moore v. Tunica County, 143 Miss. 821; Smith v. Chickasaw County, 156 Miss. 171.
We do not understand upon what theory the lower court held appellant was not entitled to recover the $215.12 claimed.
Chapter 102, Laws of 1916; Chapters 122 and 123, Laws of 1920; Chapter 160, Laws of 1922; Chapters 206, 207, 208 and 209, Laws of 1924; Wray v. Bolivar County, 134 Miss. 84; Moore v. Tunica County, 143 Miss. 821; Smith v. Chickasaw County, 156 Miss. 171.
The poll taxes and commutation road taxes here in question were collected in January and February, 1928, and it is wholly immaterial, in so far as the $215.12 is concerned, whether the retroactive provisions of chapter 87, Laws of 1928, are valid or invalid.
It is elemental that a demurrer is an entire thing. That if it is not a full defense to the whole declaration, it must be overruled.
State Board of Education v. M. O.R.R. Co., 71 Miss. 500; Cummings v. Daughety, 73 Miss. 405; Alford Lbr. Co. v. Ragland, 106 Miss. 51; Hastings-Stoud Co. v. Walker Co., 162 Miss. 275; Gully v. Bd. of Suprs., Copiah County, 167 Miss. 562.
As to the item of $800 the court erred in holding that chapter 87, Laws of 1928, was unconstitutional.
Section 103 of the Constitution mandatorily requires the Legislature to provide suitable compensation for all officers. The Legislature was the sole judge of the amount of the compensation to be paid, except they could not indirectly abolish the office by taking away substantially all compensation of the officer.
State v. Board of Supervisors, 131 Miss. 689; Moore v. Tunica County, 143 Miss. 821; Smith v. Chickasaw County, 156 Miss. 171.
The Legislature had the sole power to determine whether the compensation of the sheriff and tax collector was to be upon a salary basis or upon a fee basis. In its discretion, it might fix and determine the time when and the manner in which such compensation should be paid. Appellant had no contractual rights to receive the salary in effect at the time he was inducted into office.
State v. Hyde, 52 Miss. 665; Johnson v. Reeves, 112 Miss. 227.
It would seem that as to all officers on a salary basis, other than the members of the Legislature, the governor and judges, the Legislature could, in its discretion, after the officer had entered upon the discharge of his duties, prescribe his salary for the term, or place it upon an annual basis different from that in effect when the officer was inducted into office. That is to say, in February or March, and after such a salaried officer had for a time performed the duties of his office, the legislature might increase his annual compensation from $2000 to $3000. Because the salary was thus increased, it could not be successfully contended that the Legislature was granting extra compensation to an officer after service rendered. The increase might well be imputed only to duties performed after the effective date of the act.
If the Legislature can thus change the annual compensation of an officer after he enters upon the discharge of his duties when he is upon a strict salary basis, there is no reason why it cannot change the salary of an officer whose compensation is based upon the amount of money which comes into the officer's hands within a certain time.
Smith v. Chickasaw County, 156 Miss. 171.
In principle, the case here is not different from that involved in Hancock County v. Shaw, 120 Miss. 48.
Section 96 of the Constitution was not intended to prevent the Legislature from dealing justly with public officers faithfully performing the duties of the office.
Henry v. Carter, 88 Miss. 21.
It is elemental that a statute will not be declared unconstitutional unless it appears to be so beyond all reasonable doubt.
Miss. Digest, Constitutional Law, sec. 48.
And in view of the fact that chapter 87, Laws of 1928, did not purport to grant extra compensation after service rendered, and in fact did not grant extra compensation after service rendered, but merely changed the date upon which the compensation should be received, how can it be said that the statute appears to be unconstitutional beyond all reasonable doubt?
We submit that the lower court erroneously held that the declaration did not state a cause of action as to the $215.12, and also as to the $800 compensation due for collecting the ad valorem taxes mentioned. The case should be reversed and remanded.
J.W.T. Falkner, of Oxford, for appellee.
Chapter 87 of the Laws of 1928 is retroactive. It was not passed and did not become effective until April 12, 1928. Therefore, it can be seen that in January and February, the smaller fees were due, and were all that Hartsfield could have claimed under the then existing laws, and all that he actually charged for his services, and retained in his monthly settlements as tax collector.
Then the Legislature comes along, after the services have been rendered by the tax collector, after he has retained and accepted as full compensation therefor, the fees authorized by law at the time the services were rendered, and passes a retroactive law, providing that it shall become effective as of January, 1928, when in fact the bill was not adopted and approved until April 12, 1928.
Appellee rests upon this contention: that the Constitution of the State of Mississippi especially prohibits such an action on the part of the Legislature. Section 96 of the Constitution of the State of Mississippi especially provides that the Legislature is without the power to grant extra fees to any public officer after service rendered or contract made.
Now if this constitutional section is to be enforced, appellee most strenuously contends that the extra compensation herein provided for in section 87 of the Laws of 1928, is in fact a direct violation to the Constitution of the State of Mississippi.
Moore v. Walley, 152 Miss. 539.
Of course, many cases are agreed upon the rule that a fee is not a contract, but whether the fees here involved is a contract or not is immaterial. Section 96 of the Constitution is predicated upon the basis that no fee or salary can be changed after services rendered. The fee or salary may be changed at any time, but it may not relate back and be changed in order to increase the amount to be received for a particular service after that service has been performed. The rights of the parties have then become settled, and neither party is at liberty to change the amount due.
When Hartsfield made his settlement he retained the full amount he had charged for his services, and all the fees that he at the time felt were due him, which was in point of fact the amount due under the then existing laws as to the state taxes. Under the rule laid down in the case of Town of Wesson v. Collins, 72 Miss. 844, he is barred from claiming the greater fee, after voluntary payment of the taxes collected.
In conclusion, appellee charges that this is a suit for additional compensation for past services, claimed for the months of January and February, 1928, after the services were rendered, by authority of a retroactive statute passed by the Legislature during the month of April. That the claim taken as a whole must stand or fall under the law of April, 1928. That an actual calculation of fees for Hartsfield as claimed in his suit will show an increase under the April, 1928, law for any particular period of time that may be selected for the making of a calculation. That the law of April, 1928, increased the compensation of the officer for past services rendered prior to the passage of the act. That a calculation for the period of one year will show an increase of the fees authorized when Hartsfield went into office, as would likewise a calculation for a period of two, three, or four-year period. This being correct, the April, 1928, law violates the provisions of section 96 of the Mississippi Constitution, and the Legislature was without authority to pass the law.
Argued orally by Geo. Butler, for appellant.
The appellant, Hartsfield, sued Lafayette County to recover a balance due him of fees alleged to have been earned by him in January and February, 1928, as sheriff and tax collector of said county. His declaration alleged that he collected a less sum than was due him under and by virtue of chapter 87, Laws of 1928, and attached thereto as an exhibit an itemized statement of the taxes collected, the amount alleged to have been due him, the amount paid thereon, and the balance due him. The appellee, Lafayette County, filed a demurrer, the effect of which was that the statute relied on by the appellant attempted to give the tax collector the right to collect a greater per cent of fees than was allowed by the statute in force at the time the service was rendered, and that to that extent the statute relied on was violative of section 96, of the Constitution of 1890. The court below sustained the demurrer and dismissed the cause, and from the judgment thereon an appeal is prosecuted here.
The itemized claim for fees as compensation is divided into two parts, one claim for $215.12 for a balance on commissions of five per cent allowed by the statute for the collection of poll taxes and commutation road taxes, the other claim was for $800, balance of commissions due for collecting ad valorem taxes under chapter 87, of the Laws of 1928.
As to the item of $215, it is clear that chapter 87, of the Laws of 1928, has no application to, or bearing on, the question of liability of the county. The compensation fixed for collecting poll tax and commutation tax is five per cent, whether the amount collected is large or small, as fixed by chapter 206, of the Laws of 1924, which schedule of fees was in force in the months of January and February, 1928, and which schedule was in no manner changed by chapter 87, Laws of 1928, insofar as the percentage due for the collection of poll taxes and commutation taxes is concerned. The percentage allowed the sheriff under the Laws of 1924 was five per cent, and that rate was not changed by the Laws of 1928. The demurrer therefor being general, it was improperly sustained insofar as this item is concerned.
The only answer made on this particular claim is that Hartsfield, as sheriff, was estopped because he had collected a less amount. Quite a sufficient answer to that proposition is that estoppel can only be raised by plea, and not by demurrer.
As to the item of $800 alleged to have been due for the time specified, we are confronted with this situation: In 1916 the Legislature abolished the fee system as compensation for sheriffs, and substituted as such compensation a salary based upon the collection of fees, and limiting the amount of fees which might be applied to salaries. By chapter 160, of the Laws of 1922, the Legislature undertook to abolish the salary system theretofore in force, and substitute the fee system without reenacting the schedule of fees. In Moore v. Tunica County, 143 Miss. 821, 107 So. 659, this court held chapter 160 void as violative of the constitution.
By section 2, chapter 206, Laws 1924, the Legislature enacted that sheriffs should receive, as compensation for their services, fees, commissions, and salaries, and that such officers should be paid exclusively therefrom; and, in reference to tax collections, in Paragraph c of said section, it was provided that:
"Each tax collector shall be allowed to deduct for his services in making tax collections the following fees and commissions.
"5% on all privilege taxes and poll taxes and commutation road taxes collected.
"5% on the first $10,000.00 of the state taxes collected.
"2% on the excess of state taxes collected over $10,000.00, but not on exceeding $40,000.00.
1% on the excess of state taxes collected over $50,000.00.
"5% on the first $10,000.00 of all county and taxing district and drainage district taxes collected.
"2% on the excess over $10,000.00 of the county and taxing district and drainage district collected, but not on exceeding $40,000.00.
"1% on all county and taxing district and drainage district taxes collected in excess of $50,000.00."
Thereafter it was assumed by the officials that the calculation as to the higher rate of fees began on the first of January of each calendar year. This is borne out by the fact that it was provided, by the Laws of 1926, chapter 193, that the tax collectors, in deducting compensation for the collection of ad valorem taxes, shall deduct such commissions based upon the fiscal, and not the calendar year, and that the act should take effect and be in force from and after the beginning of the next fiscal year, to-wit, October 1, 1926. When Hartsfield collected the ad valorem tax commissions, which he is suing for here, his term of office began the first Monday of January, 1928, and his account shows that he collected taxes upon the low rate counting that fiscal year as beginning on October 1, 1927. In other words, when he collected the ad valorem taxes in January and February of the year, 1928, we must assume that his predecessor had collected during the time from October, 1927, to January 1, 1928, the higher percentage of taxes on the first $50,000, and, if there had been no change in the law, subsequently there could be no question but that Hartsfield was only entitled to the amount of one per cent on taxes collected by him for the months in question, as that was the percentage allowed him by law at the time he rendered the services for the collection of the taxes, the commissions on which are here involved.
Chapter 87 of the Laws of 1928 was approved April 12, 1928, and the applicable part of it is as follows:
"Each tax collector shall be allowed to deduct for his services in making tax collections the following fees and commissions, each year, same to be deducted by the calendar year, commencing with January, 1928.
"5% on all privilege taxes and poll taxes and commutation road taxes collected, including road and bridge privilege tax on automobiles, trucks, trailers, and motor cycles.
"5% on the first $10,000.00 of the state taxes collected.
"2% on the excess of state taxes collected over $10,000.00, but not exceeding $40,000.00.
"1% on the excess of state taxes collected over $50,000.00."
It will be observed that the Laws of 1926 in force during January and February, 1928, made the tax collector's fiscal year begin October 1st. By chapter 87, this was changed so that the collections were to be deducted by the calendar year, and should commence with January 1, 1928, which date had already passed when the law was enacted.
We have this situation: The tax collector in office prior to the beginning of Hartsfield's term was allowed to collect the highest percentage on the first collections made by him on and after October 1, 1927, the beginning of the fiscal year, and then, if effect can be given to the act retrospectively, Hartsfield, in the months of January and February, was thereby allowed to collect the highest fees for collection of ad valorem taxes, all of which was compensation for the taxes which had been assessed and became due for the year 1937, so that within six months or less the highest percentage would be collectible by the two tax collectors.
Section 96 of the Constitution of 1890 is as follows: "The legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections."
We think it is quite clear that the effort of the Legislature was to change from the fiscal year to the calendar year and permit the sheriff to collect five per cent on the first $10,000 and two per cent on the next $40,000. After that collection had already been made by the sheriff, and he had been paid therefor under the law as it existed at the time the collection was made, it had the effect to increase his fees and augment his compensation, so that it was extra compensation paid to him for the particular service rendered in the collection of the first taxes collected by him in contravention of the express mandate of the constitution. It undertook to grant this sheriff extra compensation, if chapter 87 is permitted to be effective retrospectively. This was extra compensation paid to this sheriff for the particular service at a particular time, and is prohibited, and the Legislature is not permitted so to do. Of course, this does not mean that the statute in question is unconstitutional in its perspective views, but only the effort to allow extra compensation to the tax collectors of the state for the service already rendered prior to the passage of the act.
It is argued that the court could adopt the view that the Legislature intended to allow a certain amount in fees as compensation to the sheriffs by the year, and, so construed, the act would not violate the Constitution in this particular. The argument is unsound because the statute fixes a per cent on a certain collection beginning at a certain time. The first collections made by this sheriff were slightly in excess of $50,000. During the months of January and February, the Legislature fixed the compensation at five per cent fee on the first collection, and in this respect did not take into consideration the other collections that might be made during any given year.
Our attention is called to the case of Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96, 705, and a paragraph in response to the suggestion of error by this court, which has no good bearing on, and in no way assists, the court in the solution of the question here presented.
We therefore conclude that the court erred in sustaining the general demurrer insofar as the item of $215 is concerned, and that under the constitution the sheriff and tax collector's fees for the months of January and February, 1928, could not be increased so as to grant to them extra compensation for the particular services rendered at the beginning of their terms.
We are strengthened in this view by the fact that the Legislature, by chapter 17 of the Laws of Extraordinary Session, 1928, again changed so that tax collections begin with the fiscal year, and the first collections made on that basis as to the fees of the sheriff effective November 1, 1928. We are of opinion that Hartsfield cannot be allowed the collections claimed for the months of January and February, 1928, but that insofar as the demurrer is concerned as to the $215 item, the court should have overruled it.
Reversed and remanded.