Nease v. Smith

73 S.E. 910, 70 W. Va. 325, 1912 W. Va. LEXIS 24

• Court: West Virginia Supreme Court
• Decided: February 6, 1912
• Status: Published

Opinions

BRANNON, PRESIDENT:

In a settlement between S. P. Smith, sheriff of Kanawha county, and the county, district ajid district school funds, the county court, acting upon a report of such settlement made by commissioners, for the year ending June 30, 1910, refused to charge the sheriff with the interest collected by him on taxes unpaid until after 1st January, and refused to charge him with 15 per cent on commissions on taxes collected, and allowed him 7 % per cent commission on road taxes. H. E. Nease as citizen and taxpayer intervened in the proceeding in the county court, and excepted to such action of the court, and carried the matter to the circuit court by writ of certiorari. The judgment of the circuit court allowed Smith to retain the ten per cent collected by him as interest on taxes not paid until 1st January, and allowed him 7 % per cent on road taxes, and charged him with lo per cent on commission on taxes collected. Nease brought the case to this Court, complaining that the circuit court had not charged Smith with the ten per cent penalty collected by him on taxes collected after 1st January, and had allowed him 7 % per cent on road taxes, instead of 5 per cent, as Nease claimed was legal commission. Smith cross assigned error in the action of the circuit court in charging him with 15 per cent on commission on taxes collected.

Is Smith chargeable with that ten per cent per annum interest imposed as a penalty to compel prompt payment on all tax payers in default of payment before 1st January? Code of 1906> cli. 30, § 8, demands payment of taxes by 30th November. On taxes in default it says, “interest” at the rate of ten per cent per annum on the amount of each tax bill shall be added thereto from .said first day of January until payment.” One question will answer the claim of the sheriff to this interest. Whose money is it bearing that interest? Not the sheriff’s, but money of the public. Who ever heard of any one getting interest on money not belonging to him? We would expect that for such an extraordinary claim some statute allowing it should be shown; but it is admitted that no express statute doing so can be found. But the- argument is that by implication the sheriff may retain such interest, because code, § 33, ch. 39, charges the sheriff with the amount of the- county levy; and because sec. 139, ch. 27, acts 1908, charges him'with amount of taxes levied by the board of education; and because code, ch. 49, charges him with amount of district levies; in other words, only the amounts of levies shown by assessment books, and those statutes do not say that he shall pay interest. Two answers here. One is that when such books of levies are made no interest has accrued or collections made. Another is that, those charging statutes and settlements surely mean to charge all taxes, and interest is a part of the taxes, first, because interest is an increment or increase of money, following it as shadow follows its substance, adhering to it. The letter of the statute is that ‘'‘interest shall be added thereto.” Another cogent answer to this claim is that ch. 69, § 31, acts 1909, fixes what commissions on taxes the sheriff shall get, and does not give him that 10 per cent interest. He is limited to that commission. And it is undeniable law that a sheriff can get no reward from the public unless statute concedes it. 35 Cyc.'79. I find that 25 Am. & Eng. Eney. of Law 730, says that a sheriff at common law could receive no compensation other than that received from the king. “His right to it is wholly derived from statutes, which being in derogation of common law, must be strictly con. strued.”

What commission shall Smith receive on road taxes ? Section 31, ch. 69, acts 1909, fixes five per cent commission on county levy, district levies, and district levy for schools. This would apply to road taxes. But eh. 52, § 66, acts 1909, a later act .by four days, says that commission on road levy shall be the same as on state taxes, which by ch. 69, acts 1909, is 7 % per cent. So, it is clear that the sheriff gets that commission on road taxes.

Must the sheriff pay the county treasury fifteen per cent, of his official emolument ? This depends on section 9, ch. 15, Acts of 1908. It reads as follows: "Bach sheriff, clerk of the county court, clerk of the circuit court, or clerk of the circuit and criminal or intermediate court and prosecuting attorney in the counties of the state, shall receive as compensation for his services as such sheriff, clerks and prosecuting attorney, the following sums, to wit:

(a) The "salaries authorized by law to he fixed by the county court of the respective counties and paid out of the county treasury;

(b) Such allowance or allowances as may be made by the county court of the different counties to such officers by authority of law now in effect.

(c) Eighty-five per centum of all other fees, costs, percentages, perquisites, commissions and emoluments; provided,, however, that such sheriff, clerks and prosecuting attorney shall receive all fees, costs, percentages, perquisites, emoluments and commissions collected or received by him until the gross income of his office from all sources including salaries and allowances as aforesaid shall equal the following sums, that is to say:

Bor the office of sheriff, three thousand dollars.

Bor the office of clerk of the county court, two thousand dollars.

Bor the office of clerk of the circuit court, two thousand dollars.

Bor the office of clerk of the circuit court and criminal court or intermediate court, three thousand dollars.

Bor the office of clerk of the county and circuit court when held by the same person, two thousand dollars.

Bor the office of prosecuting attorney, fifteen hundred dollars.

When said salaries, allowances, fees, costs, percentages, perquisites, emoluments and commissions exceed the sum herein-before mentioned to be retained by such officers, then such officers shall pay to the sheriff as treasurer of his county, fifteen per centum of all fees, costs, percentages, perquisites, penalties, commissions and emoluments collected by him, excluding therefrom the salaries of such officers paid .out of the county treasury, and allowances made- by authority of law as aforesaid: provided, however, should the gross income from all sources, aforesaid, for any of the said offices, exceed the amounts hereinbefore specified, but insufficient to net said amounts so specified, after deducting the said fifteen per centum aforesaid, then in such event said officers shall retain' respectively, said amounts specified as aforesaid, and the residue of said gross income pay into the county treasury.”

It is first said that the provision of this statute, if calling on the sheriff to pay this fifteen per cent., has been repealed by section 31, ch. 69 Acts of 1909. We do not think so. The acts are on different subjects. Section 31 of ch. 69 has for its purpose the fixing commissions of sheriff on money coming to his hands from taxes, while section 9, ch. 15, Acts of 1908, does not fix commissions, but deals with what the sheriff shall retain of his emoluments from all sources, what is the minimum he shall receive therefrom, and what part he shall pay into the county treasury. Both statutes can stand in harmony.

What is the purpose of this section? The purpose is to fix minimum incomes, prescribe their sources and raise revenue by imposing what I may call a tax upon the income of the officers named in it. Its plain purpose is to require payment to the county treasury of 15 per cent, of official income. In conference upon this case the point of discussion was, whether sheriff’s commission on taxes should bear the 15 per cent, exaction; must it be -included or excluded in the sum subject to that 15 per cent? The statute does not fix the sheriff’s commission. It does fix the minimum of emolument which he is entitled to receive clear from all sources. It says he shall receive (a) salaries fixed by the county court, and (b) such allowances- as may be made by the county court, and (c) 85 per cent of all other fees, costs, percentages, perquisites, commissions and emoluments. Here are three distinct sources of income. The proviso says that he shall receive and keep free of tax all fees, costs, percentages perquisites, emoluments, and commissions until they, with salaries and other county court allowances, shall amount to a certain sum. Having fixed what the officers shall receive from all sources up to at least certain sums, the section proceeding to say what they shall pay out of the total into the county treasury, says that when the income from salaries, and allowances by the county court, fees, costs, percentages, perquisites, emoluments and commissions, exceeds $3,000, in the ease of sheriff, he shall pay the treasury 15 per cent, thereof, excepting from the sum total of taxable receipts salaries and allowances by the court. It is contended that commissions on taxes shall not be counted in ascertaining the sum taxable or chargeable with 15 per cent. To exclude it we must make it an “allowance” under clause (b). It is so claimed. But this cannot be so. The word “allowance” does not mean “commission.” It means an allowance mentioned in clause (b) made by order of the county court. Clauses (a), (b) .and (c) specify the only sources of income tfnder the act. Observe that clause (c) gives the sheriff 85 per cent, of all “other” fees, costs, percentages, perquisites, commissions and emoluments;” that is, all receipts other than those specified in clauses (a) and (b). The use of the word “other” just after those clauses shows that it is things not named in them on which he gets 85 per cent.; shows that commissions are included in those things on which he gets 85 per cent.; in other words, shows that commissions are not allowances by the county court. If commissions are allowances, then clause (c) does the useless thing of giving 85 per cent, of them, since it would be simply specifying the same thing the second time, when the language is other fees, costs, percentages, perquisites, commissions, &e. Commissions are not allowances.

Hote that the close of the section before the repealing clause says that when said salaries, allowances, fees, costs, percentages, perquisites, emoluments and commissions exceed the sum to be retained by the officer allowed him as a minimum, then he shall pay the county treasury fifteen per cent, of all fees, costs, percentages, perquisites, penalties, commissions and emoluments collected by him, excluding therefrom salaries of such officers paid out of the county treasury, and allowances made by authority of law “as aforesaid.”

Here we see that in making up the sum taxable commissions are in words included, and while salaries and allowances made by authority of law “as aforesaid,” are excluded from the tax charge, commissions are not excluded. Allowances and commissions are both counted in making up the total income, but only allowances and salaries are released from the tax. They are excepted from the tax, but commissions not. If the intention was to exempt commissions from the tax, why not exempt them by name, as they are included by name in total income ? They are left taxable. The real question is, Do commissions come under the head of allowances under clause (b) ? They do not. The allowances meant are those, (not salaries) fixed by. the court in its discretion by special order, not a commission fixed by positive statute as commissions on taxes. Commissions are not allowances under clause (b). It is said the commissions charged with the 15 per cent, are eommisions on execution or other process. The section does not so limit or declare. It uses the generic word commissions, which applies to taxes. There is no subject to which it more plainly applies under statute law and common understanding. The question was asked, what allowances are meant in clause (b), and it was asserted that there are no such allowances under existing law but salaries and commissions. I think the word “allowances” was intended as a safety clause' to include any allowances that could be made, not salaries. Again, the Legislature thought there might be in this county or that allowances lawfully made under special local acts. I further answer that question by saying that if there are no allowances that can be made to a sheriff, there are allowances that can be made to the clerk, for instance, the reasonable allowance which the county court can make to him for the financial statement under Code of 190C, ch. 39 § 35. Both the words commissions and allowances are used to meet the case of both. Sheriff’s commissions on taxes are not “allowances” made by the court, but are fixed without any order of allowance by the court by eh. 69, Acts of 1909, § 31, the court having no power over them. If a clerk pays this 15 per cent, on fees, why should not the sheriff pay on commissions?

Both are emoluments coming from public service. The tax is levied on clerk fees.

If this .were not so there would be little revenue from that source. Did the Legislature intend to tax clerk’s fees and release the large amount of sheriff’s commissions? The bulk of clerk’s income is fees, and the bulk of sheriff’s income is commission. We say that the intent of said section is to impose a tax on incomes from office when suck incomes amount to certain sums, for revenue, and we cannot think that the Legislature intended to emasculate the act and defeat it largely as a revenue measure by excluding from the 15 per cent, large sums of commissions.

Just 'here I note that section 31 chapter 69, Acts 1909, instead of repealing by either expression or implication the act of 1908, regards it as still to continue. “Every sheriff or collector shall be allowed a commission of five per cent., on the amount of all county levies, district levies, and district levies for free school purposes, collected from the tax payers, except those taxes for said purposes paid through the auditor’s office from railroads and other persons and corporations, on which last mentioned taxes he shall receive a commission of one and one-half per cent.; provided however, that in any county where the gross income of the sheriff’s office, including the salaries authorized by law to be fixed by the county court of the respective counties, and paid out of the county treasury, the commissions allowed by this section, and all other allowances, fees, costs, percentages, perquisites, commissions and emoluments, amounts to less than three thousand dollars, the sheriffs of such counties may be allowed such additional commissions,” as will make up $3,000. Observe that it fixes $3,000 as a minimum. That is' the sum fixed by the act of 1908. And it uses the same words found in that act to make that sum, salaries, commissions, allowances, fees, costs, percentages, perquisites, commissions and emoluments, evidently regarding it. But moreover note that making up the $3,000, it includes “the commissions allowed by this section, and all other allowances, fees, costs, percentages, perquisites, commissions and emoluments.” Both tax commissions and allowances are named, showing that they are different things. This feature of this case has been much contested, and but for this I would not have written this prolix discussion of it, as in my humble opinion it presents no serious difficulty.

I think the statute plain, and it is only a matter of obeying its plain letter to execute its plain intent. We cannot put into the statute what is not there. Therefore the sheriff is required to pay the county treasury 15 per cent, on commissions on taxes. Everything that is a fee is counted in the taxable sum; fees are those sums feed by law. Allowances are those made under the discretion of court, not feed, as for instance, the reasonable compensation for financial statement under Code 1906, ch. 39, §35., They are not allowances. Allowance is where the court must make an order fixing the amount. The sheriff pays this tax of fifteen per cent, on gross income, except salaries and county court allowances, if any. But by a provisio of the statute if the imposition of the tax would lea.ve 'him less than the minimum sum prescribed by the statute, he is entitled to retain up to that sum, though the treasury may not get that per cent., and it gets what is left over that sum.

Our conclusion is to reverse the judgment of the circuit court in so far as it allows the sheriff said ten per cent, interest, amounting to $160.48, and affirm it in so far as it allows the sheriff 7 % per cent on road taxes, $158.37, and in so far as it charges the sheriff with $2,963.06 for the 15 per cent on commissions on taxes collected.

Affirmed in part. Reversed in pari.