(dissenting). I find myself wholly unable to agree with the opinion of the majority in this case. Some further statement of the case and reference to certain statutes Avill be necessary to make my conclusions understood clearly, and, as I think, make the case properly understood by the bar.
The suit was filed in 1917 for the taxes of the year 1916. The land roll upon which the present suit is based was made up and duly approved in 1915, and the taxes for that year collected partly by the outgoing sheriff, who went out of office on January 1, 1916, and partly by the defandant, who assumed office on that date and completed the collection for that year. The only assessment made in 1916, was the assessment of personal taxes. At the legislative session of 1916 the tax commission was created, and its duties prescribed by law, and under that act it was necessary for the tax commission to approve the assessment of personal property, but it had nothing to do with the assessment of real property. The • assessment roll was turned over to the sheriff prior to November 22, 1916, and be began collecting taxes upon that date. By the 1st of December, 1916, *381be had collected ten thousand, six hundred eighty-five dollars.- The.total amount’of taxes according to the proof would be about two hundred thousand dollars, and on the sheriff’s evidence about ten per cent, of that amount had been collected on January 1, 1917. From January 1, to February 1, 1917, he collected about thirty-three thousand, one hundred, ninety-six dollars, and testifies that all taxes were supposed to be collected by then. In February, 1917, he collected twenty-nine thousand, thirty-nine dollars and fifty-one cents. In March, 1917, he collected sixteen thousand four hundred sixty-four dollars and fifty-two cents. In April, 1917, he collected nine thousand, six hundred ninety dollars and seventeen cents. In May he collected nine thousand, sixty-eight dollars and seventeen cents. In June, 1917, he collected six thousand, five hundred forty-five dollars and ninety-four cents. The sheriff neither levied distress on personal property for the taxes involved in the suit after December 15th, nor did he advertise the land involved in the tax receipts involved in this suit, nor at all until after the revenue agent’s investigation and notice to him and to the boards of supervisors.
The sheriff testified that people offered to pay their taxes, that checks were sent in letters, and said letters were unanswered, or many of them unanswered, on the 1st of April, 1917; that, after answering these /letters, they made up a list of tax receipts of the taxpayers involved in the present suit, and dated said tax receipts as of date February 1st, 1917, and that none of the taxes involved in the present suit were paid on - February 1st or at any other time prior to the demand of the revenue agent. The tax collector did not make any written report to the board of supervisors of these delinquencies, nor did he seek to secure an order to sell the said lands at a later date, and had taken no steps other than to send out a few notices prior to the date the investigation of the revenue agent was made, and notice served upon him of the delinquencies and demand made upon him by the revenue agent for possession of the office and books for the purpose of collecting the *382taxes. The sheriff attempted to justify the delay and failure to advertise the lands on the ground that the land rolls had certain lands doubly assessed and lands assessed to parties who did not own the lands in certain cases. The delinquents involved in the present case whose taxes had not been paid at the time the revenue agent made the investigation and made demand upon the board of supervisors and the tax collector were landowners, and most of them large property owners, many of whom lived in the county site and in other towns within the county easily accessible to the tax collector. The two deputy sheriffs working under the tax collector were delinquent for their taxes, and paid the same after the notice by the state revenue agent of his investigation.
The revenue agent obtained information from the auditor’s office in Jackson, Miss., that the tax collector of Copiah county had not settled with the state for the taxes charged against him, and about July 23, 1917,'the revenue agent sent his deputy to investigate the matter, he having at said time other persons and accountants working on the records of that county in other matters. The deputy revenue agent went to the sheriff’s office, called for the books which were turned over to him, and found a large number of tax receipts made out, but unsigned, dated February 1, 1917, and embracing lands assessed to the owners, and he took the cash-books and the other records of the office and checked them against the tax receipts, and found the charges about which the suit was instituted, and made up a list of the persons and the amounts due, and served it upon the sheriff on July 28, 1917, and also filed a copy.with the board of supervisors. While making the investigation, and on or before the 28th of July, 1917, the deputy revenue agent had notices printed in the county site of Copiah county to the several delinquent taxpayers, and returned to Jackson, Miss., with such notices, and they were mailed out on the 29th of July, 1917.
No report is shown to have been made to the board of supervisors in writing by the sheriff, and no corrected as*383sessment roll was ever attempted to be made by tbe board of supervisors, nor was anything done, so far as the records show, in correcting the assessments upon which the taxes were fin Jly paid to the sheriff. When the deputy revenue agent made demand upon the sheriff for the books and office for the purpose of collecting the taxes, the sheriff took counsel and refused to permit the revenue agent to occupy hi. office or to have possession of the books for that purpose. After receiving notice from the revenue agent the sheriff got busy and the delinquents also got busy after receiving the notices from the revenue agent, and paid the taxes to the sheriff, and not to the revenue agent. When the taxes were collected the revenue agent made demand upon the sheriff for his commission, which the sheriff refused to pay, and this suit was brought against the sheriff personally and officially for such commissions collected by the sheriff after the service of the notices aforesaid and after the investigation of the books by the revenue agent and his deputy.
I desire to notice some of the statutes bearing on the controversy.
Section 4264, Code of 1906 (section 6898, Hemingway’s Code), requires the taxpayer to furnish a list of his taxable property to the tax assessor.
Section 4270, Code of 1906 (section 6904, Hemingway’s Code), prescribes the form to be furnished the taxpayers for their information and convenience in rendering their assessable property for taxation.
Section 4271, Code of 1906 (section 6905, Hemingway’s Code), requires the tax assessor to call attention to the oath appended to this list; and section 4276, Code of 1906 (section 6910, Hemingway’s Code), requires the assessor to report all persons to the board of supervisors who in his opinion have not made a correct assessment.
■ Section 4282, Code of 1906 (section 6916, Hemingway’s Code), requires the land of the county to be accounted for on the roll.
*384Section 4290, Code of 1906 (section 6924, Hemingway’s Code), provides the assessor shall not be paid unless the Avhole county is upon the assessment roll for land assessment, and requires the board of supervisors to carefully examine the roll with a view to the enforcement of this provision.
Section 4291, Code of 1906 (section 6925, Hemingway’s Code), provides that the assessor shall make oath appended to his roll showing that he has faithfully endeavored to assess all persons and property in his county.
Section 4293, Code of 1906 \section 6927, Hemingway’s Code), gives the board of supervisors power to extend the time for filing the roll if it finds the assessor capable, but that he has failed to complete and return his assessment, etc.
Section 4294, Code of 1906 (section 6928, Hemingway’s Code), requires the board of supervisors to examine the roll at its July meeting to see if the new assessment is necessary.
Section 4296, Code of 1906 (section 6930, Hemingway’s Code), provides a privilege of taxpayers to appear and object to the assessment roll, and provides that all persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity after its approval, excepting only minors and persons non compos mentis.
Section 4299, Code of 1906 (section 6933, Hemingway’s Code), provides what land may be reassessed and how.
Section 4301, Code of 1906 (section 6935, Hemingway’s Code), provides that this order for assessment shall be made on the first Monday of July, or the first Monday of August of the year, and that the new assessment, if made, shall be completed within such time as may be allowed, not exceeding ninety days.
Section 4303, Code of 1906 (section 6937, Hemingway’s Code, requires notice of the return and filing of the roll to be given by publication, and charges all persons with notice of the filing of the roll and with notice of the time within *385which to file objections, and the time when the board of supervisors will hear the same, and of its power to raise the assessment thereof.
Section 4308, Code of 1906 (section 6942, Hemingway’s Code), provides for the hearing of objections and the approval of the roll, and requires the board of supervisors at the time mentioned to make all corrections.
Section 4308, Code of 1906 (section 6942, Hemingway’s Code), provides for the roll to be sent to the auditor of public accounts for approval, and that if incorrect that he shall return it to the board of supervisors for correction.
Section 4312, Code of 1906 (section 6946, Hemingway’s Code), provides how changes in the assessment roll may be made.
Section 4314, Code of 1906 (section 6948, Hemingway’s Code), reads as follows:
“On receipt of the assessment rolls the collector shall immediately proceed to collect the taxes, adding the county tax due by each person to his state tax, and -collecting all together; and it shall be the duty of every person assessed to páy his taxes to the collector on or before the fifteenth day of December.”
Section 4315, Code of 1906 (section 6949, Hemingway’s Code), reads as folloAvs:
“All taxes remaining unpaid on the fifteenth day of December, shall immediately be collected by the collector, by distress and sale of any personal property liable therefor; and such sale shall take place at the courthouse door, unless the property distrained be too cumbrous to be removed; and five days’ notice of the time and place of sale shall be given by advertisements put up in three public places in the county, one of which shall be at the courthouse door; and the collector shall be allowed to collect and retain, in addition to the taxes, fees and costs, all necessary expenses of removing and keeping the property dis-trained.”
Section 4316, Code of 1906 (section 6950, Hemingway’s Code), provides that persons delinquent for poll taxes *386shall be published on or before the 1st day of-March of each year, with alphabetical lists of all persons subject to poll tax who have not paid the same on or before the 1st day-of February of each year, and that such lists shall be sworn to by the tax collector.
Section 4323, -Code of 1906 (section 6957, Hemingway’s Code), provides for the keeping of a cashbook by the tax collector, in which he shall enter the number of each tax receipt issued by him, the name of the person being taxed, and the amount paid, etc.
Section 4324, Code of 1906 (section 6958, Hemingway’s Code), provides he shall present this cash book to the board of supervisors- when required, and upon final settlement with the auditor of public accounts, etc.
Section 4326, Code of 1906 (section 6960, Hemingway’s Code), reads as follows:
“After the fifteenth day of January the tax collector shall advertise all land in his county on which the taxes have not been paid, or which is liable to sale for other taxes, for sale at the door of the courthouse of his county on the first Monday of April following; such advertisement shall be inserted for three weeks in some newspaper published in the county, if there be one, but in counties having two court districts the land shall be advertised and sold in the district in which such lands are situated, and be put up at the courthouse door, and shall contain a list of the lands to be sold in numerical order as they are contained in the assessment roll, in substance as follows: Name of Owner. Division of section. Section. Township. Range. State Tax. County Tax . Total Tax — or by such other designation as it may be assessed. Land in cities and towns shall be described in the advertisement as it is described in the assessment rolls.” ■
Section 4328, Code of 1906 (section 6962, Hemingway’s Code), provides for the sale of land for taxes remaining unpaid.
Section 4350, Code of 1906 (section 6984, Hemingway’s Code), provides that the tax collector, if the taxes assessed *387• are not paid when due, and if he cannot find sufficient real and personal property upon which to collect the same, shall ascertain who are indebted to the person liable for taxes and, make a list thereof and advertise the indebtedness for sale at the courthouse door, giving five days’ notice of the sale of said indebtedness for the taxes.
Section 4343, Code of 1906 (section 6977, Hemingway’s Code), provides that notice be given to the debtor of such taxpayer which shall bind the debt in his hands, etc.
Sections 4346-4348, Code of 1906 (sections 6980-6982,-Hemingway’s Code), provide for refunding erroneous payments and double payments.
Section 4350, Code of 1906 (section 6984, Hemingway’s Code), provides that the tax collector shall present to the board of supervisors at its meeting on the first Monday of August of each year a report of all insolvent and delin- ' quent taxpayers in his county, with the amounts due from each, which report shall be verified by affidavit of the collector that he has made in person or by deputy a legal demand for the taxes of all delinquent taxpayers in his county by going to their places of abode or business, and searching for something to seize and sell for taxes, and that the said taxpayers have not paid their taxes and have no effects known to him to pay the same, and that he has made diligent inquiry of such delinquents as have not been found, and cannot find them in his county, and that they have m> effects known to him which can be made to pay the taxes.
These statutes show absolutely that the tax collector was in default, and that no legal excuse existed therefor. It was clearly his duty to comply with these sections, and he had no right or power to change the assessment, and neither did the the board of supervisors, except as authorized by these sections, and there never was any attempt to comply with them. The tax collector had in legal effect abdicated the office to which he was elected so far as his tax-collecting duties were concerned. The taxes were to be paid on or before the 15th day of December. If not paid by that time the sheriff was inquired to distrain and sell per*388sonal property, if any could be found to satisfy such, taxes. If such taxes were not paid by the 15th day of January, he was to advertise the land belonging to the defaulting taxpayer, and he clearly did neither, and made no effort or movement so to do. And he should have published prior to March every delinquent taxpayer as required by law, and then should have resorted to the method provided for the sale of debts owing to the taxpayer, which was not done, and for which no excuse is given.
When the assessment roll was made up by the assessing authorities and approved, the same became binding, and it was clearly the duty of the sheriff to conform to the law. No responsibility attached to him for any mistake in the roll. So in this case we say that the taxes were past due and unpaid, and that the tax collector was making no effort and had made no adequate effort to collect them; the state and county Avere entitled to the taxes due them.
Section 4738, Code of 1906 (section 7056, Hemingway’s Code), reads as folloAvs:
“The state revenue agent may appoint a sufficient number of deputies. He shall have power and it shall be his duty to proceed by suit in the proper court against all officers, county contractors, persons, corporations, companies, and associations of persons for all past-due and unpaid taxes of any kind Avhatever, for all penalties or forfeitures for all past-due obligations and indebtedness of any character AArhatever owing to the state, or any county, municipality or levee board, and for damages growing out of the violation of any contract with the state or any county, municipality, or levee board, and shall have a right of action and may sue at laAV or in equity in all such cases where the state or any county, municipality or levee board has the right of action or may sue. And in all cases of valuation or ownership of property which has escaped taxation, may have subpoenaed witnesses to testify before the board of supervisors, board of mayor and aldermen, or levee board.”
*389Section 4739, Code of 1906 (section 7057, Hemingway’s Code), reads as follows:
“It is the duty of the state revenue agent to investigate the books, accounts and vouchers -of all fiscal officers of the state, and of every county, municipality and levee board, and to sue for, collect and pay over all money improperly withheld from either, and he has the power to sue and right of action against all such officers and their sureties to collect any such moneys; but if the delinquency appear by a correct open account on the books of the proper accounting officer, the right of-the revenue agent to sue shall arise only after he has given thirty days’ notice to the delinquent officer to pay over the amounts and he fails to do so. And the right of the revenue agent to sue shall terminate after the lapse of four years from the expiration of the term of any officer. And if he shall examine the books, accounts and vouchers of any fiscal officer of the state, county, municipality or levee board, and find them correct, he shall give a certificate to that effect, one to such “officer, and file one with the auditor of the state, or board of supervisors of the proper county or with the mayor and aldermen of the proper municipality or with the proper levee board.”
It will be noted from these sections that the revenue agent is given poAver and it is made his duty to investigate the books, accounts, and vouchers of all fiscal officers of the state, and to collect, sue for, and pay over all moneys improperly withheld from either. The investigation is as much a part of his duty as the bringing of suits. - In section 4748, Code of 1906 (section 7066, Hemingway’s Code), his commissions are fixed, and the commission so given is not only to cover compensation for suits brought, but is also to compensate him for investigations made. When he investigated the books and found unpaid and uncollected taxes due to the default and negligence of the tax collector, he had done a service for the state and county for which he was entitled to compensation. It is the policy of the state that the revenue agent shall not have a salary, and that he shall not be paid anything except when the result *390of his work brings something- into the state, county, or municipal treasuries. There is much investigation which he must do at an enormous expense, for which he can receive no compensation at all because the accounts of the officers are correct. Where the officers have performed their duties honestly and faithfully and have kept their books in the manner required by law, the state revenue agent receives nothing for the work he does for the state, county, or municipality in investigating such books. But if the result of his investigation show a failure of duty by the tax collector and result in securing for the state, coitnty, or municipality the-moneys to which they are entitled, he is due his compensation, and is entitled to his commission, even though he brings no suit.
Section 4749, Code of 1906 (section 7067, Hemingway’s Code), provides that where a revenue agent sues delinquent taxpayers he shall make the tax assessor and tax collector parties to such suit, and if it appear that the failure of the taxpayer to properly pay his tax was caused by any willful default or negligence of the tax assessor or tax collector, judgment shall be rendered against the defaulter or defaulters for the amount of the compensation of the revenue agent.
In the present suit the revenue agent made demand upon the sheriff and upon the board .of supervisors, and upon the delinquent taxpayers. The proof shows to the reasoning mind that it was this demand of the revenue agent that produced the result, and not any activities of the tax collector. As soon as the demaiid of the revenue agent was made the taxes began to pour in. The sheriff had made demands from time to time, but with practically no results, and the deputy sheriff told the deputy revenue agent when he made demand for the books, stating that it was his purpose to collect the taxes, that in the opinion of the deputy sheriff the revenue agent would have no better success than they had had.
In Miller v. Delta & Pine Land Co., 74 Miss. 110, 20 So. 875, this court made plain that when an officer charged with *391the duty of collecting taxes had performed a part of their duty and were proceeding in the discharge of their duty, they were entitled to the commissions prescribed by law for their services, and distinguished between that case and that of Anderson v. Hawks, 70 Miss. 639, 12 So. 697, by saying :
“A collection by resorting to any of the plans named in the statute entitles the officer to the per centum, even though the • proceeding is interrupted, by payment of the taxes. The sum given by the statute cannot be apportioned, and a larger or smaller amount, in proportion to the work done, be awarded as on a quantum meruit; the collector is entitled to all or none. There is no point in the proceeding, once begun, at which it may be said that the right to the compensation has attached rather than at another. The compensation is given as a unit; it cannot be apportioned. ,It is given when the collection is made by distress or other proceeding provided by the law, and the proceeding is necessarily also to be viewed as a unit.”
A careful reading of the case of Miller v. Delta & Pine Land Co., supra, will convince the reader, it seems to me, that when an officer performs and is performing a part of his duty for which he is allowed compensation, he cannot be defeated of his just rights by the adversary person taking some steps before the full duty is performed. In that case the sheriff had merely advertised property for sale, and the question was whether he was to be allowed his full fee of ten per cent., where the taxpayer had come in and paid before the sale was consummated.
In the case before us now no suit could be brought until there was an investigation. The facts had to be ascertained before it could be determined what to sue for or whether any suit at all would lie. A suit when filed is merely a demand for the payment-of the taxes. Until the trial or judgment is entered, nothing more than a demand has been made. The revenue agent made demand, and also made the investigation, which disclosed to him, and through him *392to the state and county, the real trouble in the sheriff’s office. Of course the sheriff must have known how the situation stood, but neither the county nor state seems to have known how matters stood.
In Anderson v. Hawks, 70 Miss, 639, 12 So. 697, no action had been taken by the sheriff whatever; no investigation had been made; no fact had been determined; and the court said that the law did not pay gratuitous fees; that the officer’s compensation was for some duty done or performed.
In Adams v. Bolivar County, 75 Miss. 154, 21 So. 608, the court held that the state revenue agent was entitled to his fees for investigating and giving notice and preparing to file suit against a delinquent officer when the officer had before the filing of the suit paid the money, but had failed to pay it within the time prescribed by law for it to be paid. In this ease the court quoted from the Miller Case, supra, and then said (75 Miss. 162, 21 So. 610) :
“The investigation is as much a part of the proceeding for collection as the suit, and here, no more than there, can the compensation be made to depend upon the will of the delinquent.
“It is a grave misconception to suppose that strict construction of this legislation — sticking in the bark and emasculating its plain spirit and scope — is a construction in the interest of the state. The very reverse is true. The interest of the state and of her revenue agent in this matter is identical. He gets nothing if nothing is collected. He gets his twenty per cent, only when the public revenues get their eighty per cent. The discharge of his duties— unpleasant ones, doubtless, in the extreme — brings terror to no honest fiscal officer, and the dishonest are not the objects of this legislation’s tender regard. He is a public officer, elected by the people, serving the people, aiding in keeping down their taxes, teaching fiscal honesty in the school of legal compulsion to those who will learn in no other, and who prefer paying the high tuition exacted in that school to being honest for honesty’s sake.”
*393In discussing the legislation pertaining to the revenue agent’s office the court, in Adams v. Kuhn, 72 Miss. 276 at page 280, 16 So. 598, at page 598, the court said:
“In the execution of the legislative scheme the revenue agent is the directing, impelling agency provided for to put in action the officers and machinery contemplated by the Constitution. He is the state’s agent to compel action by other officers, in order that the constitutional scheme by which all property was intended to bear its equal portion of taxation shall be effectuated. To accomplish this purpose, it is as necessary that the machinery once set in motion shall be kept going until the end is reached, as it is that motion shall be inaugurated. By the Code provisions it was intended and provided that the desired result should be secured in the name and by the action of the revenue agent, and it could not be doubted that the agent was a 'party’ to whom the right of appeal was given by section 4193 of the Code. Section 3 of the act of 1894 is, as we have said, a mere change of the Code provisions to disembarrass the general plan and purpose of the legislature from constitutional objection pointed out in the decision in the Tonella Case [70 Miss. 701]. We cannot doubt that the appeal it provides was intended for the revenue agent on the one side and for the party whose property or calling was intended to be taxed.”
In Y. & M. V. R. R. Co. v. West, 78 Miss. 789, 29 So. 475, this court held specifically that taxes were due and unpaid on the 16th day of December, and that under the law making taxes a debt due by the taxpayer suit could be maintained on that date; that the act of 1894 removed the limitation of one year provided under the prior laws, and that the suit could be maintained as soon as the taxes were past due and unpaid; that the tax collector had from the time the rolls were, turned over to him until the 15th day of December in which to collect the taxes, and the taxpayer had that time in which to pay such taxes,, and if they were not paid within that time that suit could be maintained by the revenue agent; that the tax collector had no power *394to sue for taxes; and that the effect of the statute making the taxes a debt was to create an additional right and remedy. See, also, Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, along the same line and for a full discussion of this feature of the case.
In Brougher v. Conley, 62 Miss. 358, the court specifically held that the board of supervisors had no authority to postpone the land sale for taxes provided by law, and that a sale made under such postponed sale ivas void notwithstanding section 558 of the Code of 1880. It was said in that case:
“This is a valuable provision, but was not intended to arm a board of supervisors with the dispensing power as to the laws enacted for the collection of public revenues. Such a construction would make it the instrument of incalculable mischief. The object and scope of the section is to provide for the case of a failure from any cause to sell land for taxes at the time ’prescribed by law.
“If after the time fixed by law for sale of land for taxes it appears that any land liable to such sale was not sold, as it should have been, it may be sold by order of the board of supervisors. The section sprang from the apprehension that by inadvertence or oversight some land might escape sale at the regular time, and was intended especially for such cases.”
In Garrett v. Robertson, 120 Miss. 731, 83 So. 178, it was held that the revenue agent was entitled to his commission where he had filed suit even though the tax was paid to the sheriff and not to the revenue agent.
In Harrison County v. Robertson, 121 Miss. 387, at page 396, 83 So. 617, at page 618, it is said:
“It is likewise true that the voluntary payment of taxes by delinquent taxpayers to the tax collector, instead of to the revenue agent, makes no difference in the right of the revenue agent to demand his commissions, provided only that the taxes were paid as a result of a demand and litigation instituted by the revenue agent.”
*395For a further discussion of the rights of the revenue agent see Robertson v. Monroe County 118 Miss. 520, 79 So. 184.
I think that the propositions announced in the majority opinion that the institution of suit is the only method by which the revenue agent can recover compensation is not only erroneous, but will result practically to the detriment of the taxpayer by forcing him to pay the court costs in addition to the demands of the state, county, and municipality for their taxes. Manifestly if the revenue agent must investigate the books in all cases without compensation unless he filed suit, and being charged by law with the making of investigations, he will necessarily be compelled to institute suits before making demands upon the taxpayers. It is contrary to the conception of the law as heretofore administered. The larger part of the collections through the revenue agent’s office have been made as a result of notice and demand without suit, but if suit must be filed to entitle the revenue agent to his commissions, necessarily he will have to bring suit, which itself is only a demand in all cases to obtain his compensation for the duties performed.
As stated above, I think the investigation is a necessary step, and that alone is sufficient to authorize the payment of the revenue agent’s commissions when the money is actually collected as a result of his investigations and activities. I cannot agree with the majority that it is incompetent to show by proper evidence that taxes were paid as a result of the revenue agent’s activities. Of course, in most cases you must judge from the facts. What the revenue agent did, and what the taxpayer did, and what the tax collector did, are to be taken and considered, and logical deductions drawn therefrom, but this does not preclude the showing by evidence that the taxpayer paid the taxes as the result of the investigation and demand of the revenue agent.
Cook, J., concurs in this dissent.