Opinion
No. 40654.
February 10, 1958.
1. Attachment — State entitled to bring attachment suit without the giving of an attachment bond.
The State of Mississippi has the right and power to file suits for collection of debts due the State and its political subdivisions as unpaid privilege taxes and penalties thereon by use of statutory remedy of an attachment at law without the giving of an attachment bond. Secs. 2680, 4392, 4395, 9179, Code 1942.
2. Parties — State real party in interest in suit by State Tax Collector to collect privilege taxes and penalties thereon.
State was a real party in interest in a suit brought by State Tax Collector to collect privilege taxes and penalties thereon owing to the State, a county and a city.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Pyles Tucker, Jackson, for appellant.
I. The Circuit Court erred in holding that attachment is not an action or remedy which the State can maintain. General Contract Corp. v. Bailey, 218 Miss. 484, 67 So.2d 485.
II. The Circuit Court erred in holding that attachment is not a suit such as would entitle the State to institute the same without giving bond. Box v. Straight Bayou Drainage District, 121 Miss. 850; Calinet v. Hare Chase of Atlanta, 37 Ga. App. 167, 139 S.E. 115; Cass County v. Sarpy County, 83 Neb. 435, 119 N.W. 685; Des Chatelets v. Des Chatelets, 292 Ill. App. 357, 11 N.E.2d 13; Dulion v. S.A. Lynch Enterprise Finance Corp. (Ga.), 53 F.2d 568; Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314; Jordan v. Dewey, 40 Neb. 639, 59 N.W. 88; Kuhl v. Chicago N.W.R. Co., 101 Wis. 42, 77 N.W. 144; Reed v. Maben, 21 Neb. 696, 33 N.W. 252; 37 Cyc. 522-523; 40 Words and Phrases (Perm. Ed.) 636, et seq.; Bouvier's Law Dictionary (Baldwin's Ed.) 1148.
III. The appellant State Tax Collector is granted broad powers in the performance of his duty to assess and collect unpaid taxes, including the privilege taxes sought to be collected in the instant case, and the Circuit Court erred in denying appellant the right to maintain said suit for the collection of taxes due the State, County and City and erred in thus interfering with the speedy collection of said taxes. McArdle's Estate v. Jackson, 215 Miss. 586, 61 So.2d 400; Miller v. McGehee, 60 Miss. 903; Stone v. Kerr, 194 Miss. 646, 10 So.2d 845; 84 C.J.S., Taxation, 1409, 1444.
IV. The order of the Circuit Court quashing and dismissing the writs of attachment and garnishment and finally dismissing the entire cause of action brought by appellant against appellees is contrary to the law. Ford v. Hurd, 4 Sm. M. 683; State, Use of Lawrence County v. Fortenberry, 54 Miss. 316; United States v. Baules, 5 Id. 567; United States v. Cochrane, 5 La. 120; United States v. Hawkins, 4 Martin, N.S. 317; United States v. Murdock, 18 La. Ann. 305, 49 Am. Dec. 651; United States v. Smith, 7 La. Ann. 185; United States v. United States Bank, 8 Id. 262; Williams v. Thigpen, 217 Miss. 683, 64 So.2d 765; 4 Am. Jur., Attachment and Garnishment, Sec. 126.
V. The Circuit Court erred in denying appellant an appeal with supersedeas from the final order rendered in said cause.
Pierce Waller, Jackson, for appellee.
I. The present suit brought by the State Tax Collector is not a suit by the State of Mississippi, and the State Tax Collector cannot invoke the provisions of Section 4395 of Mississippi Code 1942. Adams v. Kuhn, 72 Miss. 276, 16 So. 598; Canton v. Ross, 157 Miss. 788, 128 So. 560; Capital Stages v. State ex rel. Hewitt, 157 Miss. 756, 128 So. 759; Gully v. Stewart, 178 Miss. 758, 174 So. 559; Henry v. State, 78 Miss. 1, 39 So. 856; Starling Smith v. Flash (Miss.), 16 So. 875; Hirsch Bros. Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344; Kirkland v. Lowe, 33 Miss. 423; State Ex Rel Rice v. Stewart, 184 Miss. 202, 185 So. 247; White v. Lowry, 162 Miss. 752, 139 So. 874; Secs. 2680, 2683, 2686, 3975, 4395, 9187, Code 1942.
II. The appellant, State Tax Collector, cannot institute an attachment at law for the recovery of alleged delinquent privilege taxes, without executing, filing and having approved an attachment bond as required by Chapter 1 of Title 12 of Mississippi Code 1942. Ford v. Hurd, 12 Miss. 683; Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888; Beasley for Use of Norcum v. Sergeant S. Prentiss, 13 Miss. 97; State, Use of Lawrence County v. Fortenberry, 54 Miss. 316; Williams v. Thigpen, 217 Miss. 683, 64 So.2d 765; Yale Bowling v. McDaniel, 69 Miss. 337, 12 So. 556; Secs. 2639, 2675, 2679, 2680, 2686, 3975, 4395, 9187, Code 1942.
III. The Circuit Court of the First Judicial District of Hinds County, Mississippi, did not obtain jurisdiction in the case. Board of Suprs. Lauderdale County v. Citizens National Bank of Meridian, 118 Miss. 600, 79 So. 802; Board of Suprs. Lauderdale County v. First National Bank of Meridian, 118 Miss. 600, 79 So. 802; Board of Suprs. Lauderdale County v. Guaranty Loan, Trust Banking Co., 118 Miss. 600, 79 So. 802; Ford v. Woodward, 10 Miss. 260; Gully v. Denkmann Lbr. Co., 177 Miss. 164, 170 So. 151; Howard v. Frazier, 2 Miss. 578; Laurel Implement Co. v. Rowell, 84 Miss. 435, 36 So. 543; State, Use of Lawrence County v. Fortenberry, supra; Warren County v. Lanier, 87 Miss. 606, 40 So. 429; Sec. 9187, Code 1942.
APPELLANT IN REPLY.
I. The State is legally a party to the suit in the instant case brought by the State Tax Collector as the representative of the State for the purpose of suing, under his statutory authority. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799; Chicago, Burlington Quincy R. Co. v. Willard, 200 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Chicago, R.I. P.R. Co. v. State of Nebraska, 251 Fed. 279, 163 C.C.A. 435; Craig v. Southern Natural Gas Co., 125 F.2d 66; Darnell v. State, 174 Ind. 143, 90 N.E. 796, 225 U.S. 390, 57 L.Ed. 267, 33 S.Ct. 120; Ferguson v. Ross, 38 Fed. 161, 3 L.R.A. 322; General Contract Corp. v. Bailey, 218 Miss. 484, 67 So.2d 485; Gully v. Stewart, 178 Miss. 758, 174 So. 559; Henry v. State, 87 Miss. 1, 39 So. 856; Louisiana Highway Comm. v. Farnsworth, 74 F.2d 910, 294 U.S. 729, 79 L.Ed. 1259, 55 S.Ct. 638; M.C. L.N.R. Co. v. Swann, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462; Missouri R. Co. v. Missouri Road Commissioners, 183 U.S. 53, 22 S.Ct. 18, 46 L.Ed. 78; In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; Pacific Fruit Produce Co. v. Oregon Liquor Control Comm., 41 F. Supp. 175; Robertson v. Ingram-Day Lbr. Co., 271 Fed. 1023; Robertson State Revenue Agent v. Monroe County, 118 Miss. 520, 79 So. 184; Robertson, State Revenue Agent v. Jordan River Lbr. Co., 269 Fed. 606; Robertson, State Revenue Agent v. Wolf River Lbr. Co., 269 Fed. 606; Southern R. Co. v. State, 165 Ind. 613, 75 N.E. 272; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; State of Indiana for Use of Delaware County v. Allegheny Oil Co., 85 Fed. 870; State v. Rogers, 206 Miss. 643, 39 So.2d 533; Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962; Union Passenger R. Co. v. Philadelphia, 101 U.S. 528, 25 L.Ed. 912; Wilson v. Oswego Township, 151 U.S. 56, 14 S.Ct. 259, 38 L.Ed. 70; 45 Am. Jur., Removal of Causes, Sec. 58; 51 Am. Jur., Taxation, Sec. 2 pp. 34-35; Anno. 147 A.L.R. 794; Foster's Federal Practice (6th Ed.), Sec. 44.
(Hn 1) The State Tax Collector, William Winter, a duly elected public official of this State, acting pursuant to his authority under the law to collect privilege taxes and penalties thereon in proper cases, brought this suit for the use and benefit of the State of Mississippi, the City of Jackson, and the County of Hinds, by an attachment at law.
The said official acting for the use and benefit of the State of Mississippi and the other named political subdivisions thereof, did not give an attachment bond for the payment of any judgment that might be rendered for a wrongful suing out of the writ of attachment, in the event the trial court had adjudged that the writ had in fact been wrongfully sued out. Because of the fact that no such bond was given by the plaintiff in the attachment proceedings, the trial court dismissed the suit of the State Tax Collector, as well as all writs of attachment and garnishment against the principal garnishee defendants, and all effects held under the said writs were ordered released.
The trial court denied the application of the appellant for an appeal with supersedeas, but such an appeal was thereafter granted by a member of this Court.
The question posed to this Court for decision is: Has the State of Mississippi the right and power to file suits for the collection of debts due the State and its political subdivisions as unpaid privilege taxes and penalties thereon, by the use of the statutory remedy of an attachment at law, where the Legislature has by Section 4395, Code of 1942, relieved the State of giving bond in any suit, and made no provision for the posting of a bond in any case such as the one now before us by the duly authorized public official acting for and on behalf of the State, and has also provided by Section 4392, Code of 1942, that "the State shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case; * * *"?
Section 4395, Code of 1942, reads in full as follows: "Neither the state nor any county shall be required to give bond in any suit." It will be noted that no exceptions are contained in this statute.
The principal issue presented to the trial court was whether an attachment proceeding at law was a suit within the meaning of Section 4395, supra. The trial court held that such a proceeding was not a suit, and that the State was without power to file an ordinary attachment at law without giving the bond provided by Section 2680, Code of 1942. Such a bond would have been conditioned to pay to the defendant "all such damages as it shall sustain by the wrongful suing out of the attachment and writs of garnishment * * *."
(Hn 2) Upon this appeal the appellee makes the further point that the State is not a party to the suit.
Section 9179, Code of 1942, provides among other things the following: "The state tax collector * * * shall have power and it shall be his duty to proceed by suit in the proper court against all persons, corporations, companies, and associations of persons for all past due and unpaid taxes of any kind whatever, whether of the state, county, municipality, * * * or any subdivision thereof, and for all past due obligations and indebtedness of any character owing to them, or any of them, * * *." The obligations herein sued for were alleged to have been owing to the State, the County of Hinds and the City of Jackson. If recovered in a suit the money collected would have to be paid into the treasuries of the respective beneficiaries of the suit, that is to say, of the State, county and municipality, less the commission provided for by law to the official bringing the suit in their behalf.
We do not think that the State was required by law to give a bond in this attachment suit at law, and we are also of the opinion that the State, County and Municipality were the real parties in interest in the suit. Moreover, if the State had undertaken to obligate itself by the terms of an attachment bond to pay to the defendant "all such damages as it shall sustain by the wrongful suing out of the attachment and writs of garnishment", and if a judgment had been rendered accordingly, an appropriation by the Legislature would have been necessary to pay such judgment against the State in that behalf.
We are therefore of the opinion that the cause must be reversed and remanded to be proceeded with in a manner not inconsistent with the foregoing views.
Reversed and remanded.
Roberds, Lee, Arrington and Ethridge, JJ., concur.