Letter from Mississippi Governor Adelbert Ames to Mississippi Attorney General George E. Harris; April 11, 1875

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Letter from Mississippi Governor Adelbert Ames to Mississippi Attorney General George E. Harris; April 11, 1875

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Ames, Adelbert, 1835-1933 Bleckenships, Unknown Byron, Unknown Falconer, Unknown Harris, George E. (George Emrick), 1827-1911 Holley, Unknown Hutchinson, A. (Anderson), -1853 Lee, Unknown Matherty, Unknown McKay, Unknown Osborn, I. N.Payne, Theodore Poindexter, George, 1779-1853 Ross, Unknown Sadler, Unknown Webb, Unknown Wendell, Unknown Williams, Unknown

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Criminal Procedure Criminal Procedure--Quo Warranto Criminal Procedure--Writ of Mandamus Legislation Legislation. Mississippi Legislation. Mississippi. Revised Code of the Statute Laws of the State of Mississippi (1857)Legislation. Mississippi. Revised Code of the Statute Laws of the State of Mississippi (1871)Political Office--Appointment to office Political Office--Removal from office Political elections Political elections--Mississippi Taxation Taxation--Mississippi

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[image: eagle holding shield]
Van Beek, Barnard & Tinsley, Stationers, St. Louis.

STATE OF MISSISSIPPI.
Executive Office,
~~Jackson~~Bay St. Louis Miss. April 11" 1875

Hon. Geo. E. Harris
Attorney General
Jackson Miss.

Sir;

I am informed that the tax collec-tor of Grenada Co. has not given a bonds as such.

This information being true is there at this time a vacancy in that office in that county? If so when did such vacancy be-gin?

By giving at this time the proper bond as T tax collector would the sheriff of Grenada co become tax col-lector—assumming of course that there is now a vacancy?

Very Truly Yours

Adelbert Ames.

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[seal]

Attorney Generals Office
Jackson Miss. April 13, 1875

His Excellency
Gov^r. Adelbert Ames

Sir:

Your communication of the 10^th to hand, In which you say. you have information that the Tax collector of Grenada County has not given bond as such, and you desire my opinion on the following points, to each: 1. " Is there at this time a vacancy in that office in that county"? 2—"If so, when did that vacancy begin"? 3—"By giving at this time, the proper bond as tax collector would the sheriff of Grenada Co. become tax collector (assuming, of course, that there is now a vacancy)"

It is a question, not at all free from difficulty. It may not be amiss to examine the history of the office of Tax collector in this state through its various changes, in order to ascertain

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how it was created, how it has been filled, and by whom filled.

The first Constitution of the State, adopted august 15, 1817. provides for the election of a sheriff, Art IV. Sect 24. but it is silent as to the office of Tax Collector. We find in the act of June 25, 1822 this provision. "There shall be annually appointed by the governor, a person of honesty, probity and good demeanor to be assessor and collector of taxes" Poindex=ters code page 288. The constitution of 1832 is also silent as to who shall be Tax Collecor, in fact it makes no provisions whatever, touching such an office, either to create it or to regulate it. But it provides for the election of a Sheriff, Art V Sec. 19 "A Sheriff and one or more coroners, a Treasurer, Surveyor, and Ranger Shall be elected in each county"

The act of the legislature of 1833. Hutch-insons Code page 174 provides: that

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" The qualified electors of the several counties in this State shall elect an assessor and collector for their respective counties." Thus retaining the two offices in the same person, which continued until Feby 6, 1841 when the legislature enacted "That the offices of assessors and collectors shall not be held by the same individual, but the qualified electors of each county shall at each regular election, elect one assessor, and one collector of Taxes" pamphlet act of 1841 page 36-7. This seems to be the first and only time that the office had been made elective, and separate from any other office, and so remained for only two years, for we find again another change by act of July 26, 1843. It provides; (pamphlet act 1843, page 43) "That the office of the Tax Collector from "and after the first day of November "next be abolished, and from and after "that time, all the duties required by

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law, of the Tax Collector, shall be "performed by the Sheriffs of the "Several Counties." [gap] And again in 1844. we find it provided for the elec-tion of an assessor, and that the offices of the assesssor and collector should not be held by the same person, and that the Sheriff should collect the taxes, Sec act of 1844 pages 63 and 71.

We find no more changes in this office, but a reenactment of these laws in the Revised Code of 1857 at page 71. Art 5. Sec. 2 "The Sheriff of each "county shall be tax collector therein, and " at the time of giving bond as Sheriff " shall give bond as tax collector xxx "x x x x x x x In case of the failure "of any Sheriff to qualify as Tax Collector " within the same time allowed for taking " the oath of office, and giving bond " as sheriff, he shall thereby vacate the " office of sheriff and the vacancy " shall be filled according to law"

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and this is the last legislation that we have that even indicates who shall be Tax Collector, in any ^and^ all of our legislation on the subject, until the recent act of March 1875 (not involved in this ques-tion) [gap] Our Supreme Court in the recent case of Byron V. The
State, held that this provision of the code of 1857 had not been repealed by the code of 1871 or any subsequent legis-lation, and that under the provisions of the Code of 1857 The Sheriff is Tax Collector of his county by virtue of his office, [gap] The act of July 9, 1870. Section 16 provides ^a^ basis upon which the amount of the Tax collectors bond shall be fixed, but this does not repeal the act of 1857. So far as that act makes the Sheriff Tax collector and only amends it as to the amount of the bond required to be executed by him. [gap] The same act of 1870 Section 24 provides that

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all laws relating to public revenues, or their assessment and collection, in force on the first day of December 1869. not inconsistent with this act, or the constitution are hereby continued in force. The act of 1870, then does not repeal either the former of the later part of the Code of 1857 p 71 Art 5. Sec 2. Supra Nor has it been repealed by the act of 1871 or any subsequent act (until 1875) and the act of 1870 should govern as to the amount of the bond, and the act of 1857 as to the ^~~term of the~~^ execution of the bond

By ^the^ Code of 1871 Sec 257. If there is a vacancy in the Sheriffs office, the coroner shall perform the duties of the office, But the coroner shall not execute the office of Tax collector

The Code of 1871, Sec 319 provides: If any person elected to the office of Sheriff shall fail to take the oath of office, and give bond, as required by law, on or before the day of the

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the commencement of his time of office, such election shall be void, and an=other election shall be ordered to fill such vacancy. But this is amended by the act of April 19, 1873. which gives to county and precinct officers thirty (30) days, in which to qualify, and upon failure to qualify in that time, the office shall be forfieted, and the Board of Supervisors shall order an election to fill the vacy; pamphlet acts of 1873 page 76. [gap] and this would seem to amend the latter clause of Art 5. ^Sec 2.^ on page 71. Code of 1857, and ^we^ need only examine this case under consideration, in reference to the act of 1873. Supra ^as to time^, we have seen that the collection of Taxes is one of the duties of the Sheriff, and that he cannot perform that duty un=til he has executed the required bond We have also seen that every county and precinct officer is required to ex=ecute that required bond within thirty

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(30) days after the time fixed for the commencement of the regular term of office, [gap] The facts in this ^case^ I assure, to be these, The Sheriff of Grenada County was elected November 1873 his time of office commensed on the first monday of January 1874 (more than fifteen months ago) that he gave bond and otherwise qualified himself as Sheriff, in due time, but has never, executed the bond reequired of him as tax collector,

and the question to be next con=sidered, is this, Is the act of april 19, 1873, mandatory, or is it merely directory? [gap] This question has been frequently adjudicated in several of the states of the union, under statutes very similar to our own, and the authorities are contradictory. In Kansas, the Statute provides "that "every county officer x x x x before entering upon the duties of his office, and within

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twenty days after recieving official notice "of his election or appointment, or within "twenty days oafter the commencenment of the "time for which he was elected, execute "and deposit his official bond as required "by law. [gap] under this Statute Matherty was elected county clerk of [?] County at the general election in 1869. His term of office ^to commence^ on the second monday of Janry 1870. He entered upon the duties of his office executed an official bond, and took the oath of office in proper time, but did not file the same with the county Treasurer as required by p 173, ch 25 gen. Stat, p 293. On the 15th Nov^r. 1870 proceedings in quo warranto were commensed against him to oust him from the office, alleging that he had not qualified as required by law, and was there-fore a usurper and intruder, The court say "There can be no mistake, as to the meaning "of these Statutes, whatsover may be the "rule independent of the statutes the plain "provision of the law is that not only _{a refusal}

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but a neglect simply, to deposit the "official ^oath and^ bond within the time prescribed "vacates the office. We may not add or "take from the law. 7 Webb (Kansas) 330.

Under the statute of New York which provides: that, "Every person hereafter "elected to the office of Sheriff of any county "within this state, shall within twenty days "after he shall recieve notice of his election "and before he shall enter upon the duties of his office, execute x x x x x a joint and "several bond to the people of the state " be "1. R.S. 176. p.3. They must take and subscribe "the oath of office, and deposit it in the "county clerks office within fifiteen days "after they shall be notified of their election "or within fifteen days after the commence"=ment of their time of office. 1. R.S. 119.

Information in the nature of quo warranto was filed against Holley, alleging that he usurped the office of Sheriff of Columbia County, Holly pleaded: that on the first Moday in Nov 1831. Lee was duly elected

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to the office, that on the first day of December thereafter he received notice of his election, that on the 2^nd day of January following he executed his bond as sheriff which was approved and that he then took the oath of office. "The court says; "upon a consideration of all these provisions "I am inclined to to think the Sheriff doesn't "forfeit his title to the office, by omitting to "execute the bond required to be given by him "with sureties ~~within a given~~ for more than "twenty days, that the statute may be "considered in that respect directory to "the Sheriff merely, and not as imposing "an absolute limitation upon him.

The people V. Holley 12 Wendell, p. 481 In Falconers case 44 ala. Ref. 696. It is held that "the failure of an officer to file his bond within the time prescribed by law, does not ipso facto vacate his office"

In Ross V. Williams 44 Georgia p. 501 the court say, McKay Judge delivering the opinion of the court that "the

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statement made in the answer that the petitioner had not taken the oath and given the bond within the time prescribed by law is not sufficient, that it ought to have further set forth that this was by his default and the ^court^ sustained the petition of Williams, the newly elected Treasurer.

The case of Bleckenships V. Count Court of Texas County, 44 Missouri Rf. 230. was a petition for man damus setting forth his (Blenkenships) election to the office of county Treasurer of Texas county, and praying for a writ of mandamus requir=ing the county court to accept and approve his bond as county Treasurer. The Court say: "If the time originally prescribed by law for "filing the bond had expired when these pro "=ceedings were had, that created no forfeirture, "The Statute as to times is merely directory" In this case the writ was awarded—

This question has been decided by the Supreme Court of California. In the case of Payne V. San Francisco. 3. Cal. Ref. 122.

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Payne was elected Street Commissioner of ^San Francisco^ and sued the city for one months salary. The answer denied that Payne was duly qualified. He was elected in Sept 1851. Filed his bond Janry 7 1852. which was approved by the mayor. [gap] The charter of the city provides "If any person elected to a city office shall remove from the city, absent himself there=from for more than thirty days, or shall fail to qualify within ten days after his election his office shall be deemed vacant."

"The court says: "This provision we regard "as preemptory and positive in its terms. "It differs essentially from those provisions "of law which are construed by the courts "as being merely directory."

In our own State we find but one case in which the question has been adjudicated, Sadler V Bell Mss. opionion, The facts in that case were briefly, these, Sadler was elected Sheriff of Pontotoc County in 1871 served two years, and was reelected

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in 1870, but there being (as it was thought to some persons) some doubt
about the validity of the election of 1873. he did not qualify within thirty days after the final monday of January 1874. On the 10^th of february 1874 the Board of Supervisors order an election to fill the vacancy, that election was held in March and Bell was elected, and qualified according to law, and made a demand upon Sadler for the office Salder refused to surrender and Bell instituted proceedings in Quo warrento for the office, and recovered a judgment in the court below, and Sadler brought the case to the Supreme Court, and the court held, that Sadler having failed to qualify within the thirty days al=lowed by law, after the first monday in January 1874. had forfieted his right to the office, and that, as to him the election is void, and this accords with the cases refered to in Kansas & California

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Although the decisions are somewhat conflicting, the weight of authority, seems to be, that these positive statutes, prescribing a forfeiture of the office in case of a failure to qualify within the limited time cannot be held merely directory, but are preemptory and mandatory, [gap] Now apply the rule of law to this case, and the office of Tax collector of Grenada County is vacant, but under the Code of 1857, how can the office of Tax collector be vacant, without vacating also, the office of Sheriff? and what effect has the act of april 19, 1873 upon the Code of 1857 p 71 Supra The Code of 1857. relates specially to the bond of the Tax collector. and if the Sheriff fails to execute that bond at the same time he executes his bond as sheriff he forfeits his office as sheriff: [gap] The act of april 19, 1873, is general, and provides that all county and precinct officers who fails to qualify within thirty days after the commencement of ^their term^ shall forfiet their office,

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and the only effect the act of 1870 can have upon the Code of 1857 is to extend the time in which he may qualify, and does not affect the questions of forfeiture, as they both provide for the forfeiture upon a failure to qualify, the one at the commensment of the time, and
the other, thirty days thereafter.

The office of Tax collector being vacant does that of necessity vacate the office of Sheriff? or if the Sheriff qualifies himself, ^as Sheriff^ according to all the requirements of the Code of 1871, and subsequent acts, can he not still hold the office of Sheriff and vacate the office of Tax collector. [Ruere?].

From this investigation I am of opinion 1—That there is a va=cancy in the office of Tax Collector of Grenada County. 2—That such vacancy commenced, thirty days after the first monday of January 1874 3—That the Sheriff having forfeited

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the office ^of Tax collector^ by his failure to qualify cannot require the office by any qualification now. it is too late.

Very Respectfully

G. E. Harris
Attorney General

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EXECUTIVE OFFICE,
STATE OF MISSISSIPPI,
Hinds County.

From Geo E. Harris
Address Jackson
Dated April 13"/75;
Received [gap
Answered [gap]

SUBJECT:

Opinion on Tax Collectors bond for Grenada Co.

ADELBERT AMES,
Governor.

I. N. OSBORN,
Private Secretary.