Summary
In Craig v. Walker, 191 Miss. 424, 2 So.2d 806, it was pointed out that where the court cannot confidently determine what is meant by a taxing statute, "We, therefore, resolve the doubt in favor of the taxpayer — taxation is never to be allowed under a statute of doubtful interpretation."
Summary of this case from A.J. Lyon Co. v. StoneOpinion
No. 34686.
June 9, 1941. Suggestion of Error Overruled September 22, 1941.
1. LICENSES.
Under statute imposing state-wide privilege tax for each county on transient vendors of tobacco and requiring the state tax commissioner to issue transient vendor licenses in name of firm operating business, showing name of agent operating vehicle from which merchandise is sold and delivered, it is immaterial whether vendor or firm employing him pays the tax so long as it is paid when due (Laws 1940, chap. 120, sec. 221).
2. LICENSES.
The statute imposing state-wide privilege tax for each county on transient vendors of tobacco and requiring the state tax commissioner to issue transient vendor licenses in name of firm operating business, showing name of agent operating vehicle from which merchandise is sold and delivered, was intended to provide for joint identification of the agent and his employer in the license, and whether license recites that it was issued to firm for agent named therein or that it was issued to agent himself, naming firm for whom he is licensed to do the work, is immaterial (Laws 1940, chap. 120, sec. 221).
3. LICENSES.
Under statute imposing state-wide privilege tax for each county on transient vendors of tobacco, authorizing municipalities to impose such a tax also, and providing that no municipality shall levy any tax on any privilege which has been duly licensed for state-wide purposes, municipalities may not impose privilege taxes (Laws 1940, chap. 120, secs. 221, 264).
4. STATUTES.
Rules of construction are valuable only as aids to the court in arriving at the legislative intent of a statute.
5. STATUTES.
Taxation should never be allowed under a statute of doubtful interpretation.
SMITH, C.J., dissenting in part.
APPEAL from the chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Creekmore Creekmore and McLendon Edmonds, all of Jackson, for appellant.
The privilege granted is personal to him to whom the license is issued. It cannot be transferred. No one else may operate under its authority. He who is to exercise the privilege is required to make application therefor to the proper officer under oath; he is required to furnish full information in regard to the nature of the business and the places wherein it is to be conducted, and the application must be accompanied by the amount of the tax. The license must be in the actual possession of the person to whom it is issued at all times while engaging in the business; and in all cases where a question arises as to whether or not a proper license has been procured the license itself is to be the only evidence in regard thereto.
Privilege Tax Code of 1940, Sec. 3, 238, 239, 245, 246; Temple v. Sumner, 51 Miss. 13; Gully v. Joseph, 183 Miss. 662, 184 So. 818; Carter v. State, 60 Miss. 456.
It will doubtless be argued that the state has received in taxes the full amount due on account of the business which was engaged in; that the payments made by the company were induced by a misconception of the law not only on its part but on the part of the Tax Commission and other officials of the state. Conceding for the argument such to be the facts, we remind the court that it was the American Tobacco Company, employer of appellees herein, which when sued for state and municipal taxes first raised the point that the construction theretofore placed upon the 1940 statute by it and by all other parties was wrong; and that it was only the individual peddler who is liable. The situation in which it now finds itself and in which its employees, appellees herein, find themselves are of their own creation. The course of conduct followed and adopted by them as hereinbefore set forth by every principle of law and common justice estops them from now taking the position that the payments made by the company were intended for the benefit of, and were actually paid for licenses for these appellees as individuals and that the licenses issued to the company were in reality licenses for the individuals. That the American Tobacco Company may have paid privilege taxes for which it was not liable can in nowise affect the principles involved. The Mississippi statutes provide a full and complete remedy whereby refunds may be had of all such taxes so erroneously paid. That remedy is available and should be followed. Appellees have not paid the tax and do not have licenses authorizing them to engage in the business. They are liable for the state taxes sued for in the cross bill.
The prohibition contained in Section 264, Chapter 120, Laws 1940, is against the taxing of privileges licenses for state wide purposes. The prohibition is not against the taxing of privileges for which a state wide tax is levied. That the Legislature used the words "for state wide purposes" advisedly is made evident by a comparison of this paragraph with that contained in the same section which prohibits levee districts from taxing any privilege "upon which a state wide tax is levied."
Sec. 1, Privilege Tax Code.
The tax levied by Section 221, Chapter 120, Laws 1940, is denominated a "state wide tax for each county." The license is not usable, good and valid in each and every county in the state, but is limited and circumscribed in its territorial scope to those counties for which the tax of $50.00 has been paid. Neither the appellees nor the company were licensed for state wide purposes, but were licensed only to do business in those counties for which the tax was paid and which were specifically set forth in the license.
When the 1940 statute was changed so as to denominate the tax a "state wide tax for each county" rather than a "state tax," as theretofore designated, we think the change was made for the single and only purpose of placing the administration of the act under the Chairman of the State Tax Commission, thus centralizing authority in that department of the government and facilitating the collection of the tax. Had the Legislature intended to exempt peddlers from the payment of municipal taxes theretofore required of them under the previous law, it would have found a more direct, a clearer, and more explicit method of expressing its intention than by a mere change in the designation of the tax from a "state tax" to a "state wide tax for each county."
Where a statute contains both a particular and a general enactment and the general enactment includes that embraced in the particular one, then the particular provisions must be given effect as to all cases falling therein.
Madison County v. Stewart, 74 Miss. 160, 20 So. 857; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; White v. Lowrey, 162 Miss. 751, 139 So. 874; Graves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully v. Lumbermen's Mutual Casualty Co., 176 Miss. 388, 158 So. 609; Life Cas. Ins. Co. v. Walters, 180 Miss. 384, 170 So. 47; Dunn Const. Co. v. Craig (Miss.), 2 So.2d 166.
R.H. J.H. Thompson, of Jackson, for appellees.
The state does not care in what capacity the vendor acts, or by whom the tax is paid just so it is paid. The state is not interested in the question of who is the owner of the goods peddled. All it demands is that the person doing the peddling procure privilege licenses, and it makes no difference whether the licensee pays for the license out of his own funds or whether his employer makes the payment for him.
Temple v. Sumner, 51 Miss. 13; Mathison v. Brister, 166 Miss. 67.
The requirement that the name of "the firm" be set out in the state-wide license was inserted solely for statistical purposes so as to enable the Commissioner to check up on the individual vendors and, if it is found that any vendor was not duly licensed it could report that fact to his employer and thereby collect the tax with less delay and effort than through locating the salesman in his perambulations from county to county.
When the act was drawn, Chapter 160 of the Laws of 1936 (page 183) was in full force and effect and has never been repealed. Hence, at the time the authors were framing the statute and before its adoption, it was "provided by law" that, ". . . no municipality shall levy a tax on any privilege which has been duly licensed for state-wide purposes." It is reasonable to infer that the last paragraph of Section 221, copied from a former act, was left in the statute as the result of an oversight. This appears clear from the failure of the legislature to repeal the 1936 act.
The concluding paragraph of Section 221 must give way to the last expression of the legislative will, and the provisions of Section 264, appearing practically at the end of the statute, forbid municipalities and levee districts from levying any tax on any privilege duly licensed for state-wide purposes such as transient vendors.
59 C.J. 999, sec. 596; Gibbons v. Brittenum, 56 Miss. 232; Coker v. Wilkinson, 142 Miss. 1.
Lotterhos Travis, of Jackson, amicus curiae.
The State Tax Collector argues that the Legislature intended to use the term "state-wide" in the Transient Vendors Tax Statute of 1940, in a limited sense and not in a broad sense, and that this state-wide tax is in fact a state tax, except that it is collected by the Tax Commissioner instead of by the sheriffs. But the statute makes no provision for a "limited" and "broad" state-wide tax. Each tax provided in the privilege tax code is either the one or the other; that is, it is either a state tax or a state-wide tax, and if it is a state-wide tax, the provisions of the 1940 Act, and the preceding privilege tax codes, going back to 1930, prevent taxation by a municipality. If the Legislature had desired merely to change the collection from the sheriffs to the Tax Commissioner, it could and would have left the tax as a state tax, and then especially provided who should collect it, but the Legislature did not do so.
Chap. 120, Laws 1940.
The State Tax Collector argues that the last mentioned provision in Section 221 of the 1940 Act is a specific enactment which will control as against, what he terms, the general enactment which is contained in Section 264 of the same statute. In the first place, if the provision on municipal taxation contained in Section 221 is in conflict with the provision contained in Section 264, forbidding municipal taxation of state-wide privileges, then the last enactment, which is that contained in Section 264, would control, especially where there is a negative provision taking away the power, and where it is clear and explicit as this provision certainly is.
Coker v. Wilkinson, 142 Miss. 1, 106 So. 886.
In 1940 the Legislature changed the tax from a state tax to a state-wide tax, and in so doing is certain to have intended to accomplish a denial of the right of municipalities to tax, in accord with the established policy of the statutes since 1930. The provision in Section 221 was obviously carried forward inadvertently from the preceding statute, which is rather long, and which was almost entirely copied into the 1940 Act.
The State Tax Collector makes the argument that Section 264 does not apply because it forbids municipal taxation on a privilege which has been licensed "for state-wide purposes," it being contended that although the transient vendors tax is defined as "a state-wide tax," yet it is not imposed "for state-wide purposes." We think this is an attempt at refined quibbling over words, which the court should ignore. It is apparent that Section 264, as well as the similar sections of preceding codes, is intended to cover all privileges included in the privilege tax code, whether state or state-wide.
Tax statutes will be strictly construed against the state or its subdivisions.
Planters Lbr. Co. v. Wells, 147 Miss. 279, 112 So. 9; Pan-American Pet. Corp. v. Miller, 154 Miss. 565, 122 So. 393; State v. Miss. P. L. Co., 161 Miss. 839, 138 So. 567; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Town of Utica v. State, 166 Miss. 565, 148 So. 635.
The powers of municipalities both in levying taxes and exercising other functions have been strictly limited to those granted in the municipal charter or in statutes.
Ex Parte Ferguson, 59 Miss. 13; Greenwood v. Delta Bank, 75 Miss. 162, 21 So. 747; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723; City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; A. V.R.R. Co. v. Turner, 95 Miss. 594, 52 So. 261; Adams v. Ducate, 86 Miss. 276, 38 So. 497.
Argued orally by Rufus Creekmore, for appellant, and by J.H. Thompson, for appellees.
Section 221, Chap. 120, Laws 1940, imposed a state-wide privilege tax for each county of $50 upon each transient vendor, or dealer, of cigarettes, cigars and other tobaccos, and provided that the state tax commissioner "shall issue transient vendor licenses in the name of the firm operating the business, and further show the name of the agent who operates the vehicle from which the merchandise is sold and delivered." The American Tobacco Company had among its agents, who were transient vendors for the company, the two complainants in this case.
The State Tax Commissioner construed the provision quoted above as imposing the tax upon the firm and issued the privilege licenses to the American Tobacco Company and named in each license the particular agent or transient vendor for whom the particular license was issued. The licenses were so issued in respect to the agents who are the complainants herein.
After this Court decided in Craig v. Brown Williamson Tobacco Corp., 190 Miss. 360, 200 So. 446, that the tax is one upon the transient vendor as an individual and not upon the firm or company employing him, the State Tax Collector sought to disregard the payments made by the companies for the agents, and instituted actions against the agents, both for the principal sums of the entire tax and for statutory penalties, and of the agents so sued, two of them, heretofore mentioned, filed this bill for an injunction, which on the hearing was sustained.
It is immaterial who pays a particular privilege tax so long as it is paid when due, as was done in this case; and, under the cited section, it is immaterial that the formal recitals of the privilege-tax license was that it was issued to the employer firm or company for the agent named therein, instead of being issued to the agent himself and naming therein the firm or company for whom he is thereby licensed to do the work. The purpose of the statute was that there should be a joint identification of the agent and his employer in the license, and this having been done, the State is not to be permitted to again collect the tax, with penalties, upon what at best is a technicality, unsupported by substantial merit.
But neither the company nor the agents paid any privilege taxes to the municipalities within the counties designated in the licenses, and the remaining question is whether the agents are liable for municipal privilege taxes. Beginning with the Privilege Tax Code of 1930, Laws 1930, ch. 88, and through every privilege tax revision since that time, privilege taxes have been classified either as state-wide privilege taxes or simply as privilege taxes; and throughout all this time there has been a provision such as contained in Section 264, Chap. 120, Laws 1940, "that no municipality shall levy any tax on any privilege which has been duly licensed for state-wide purposes as herein provided." Thus there has become a fixed legislative policy to designate privilege taxes, in certain of each of the sections levying them, as state-wide, in which case municipalities are barred, and in the other sections, each of them, to designate the tax as simply a privilege tax upon the particular business dealt with in that section, in which cases, as the ordinary rule, municipalities may collect fifty per cent. of the specified state tax.
In all the privilege tax laws dealing with transient vendors or dealers enacted prior to Chapter 120, Laws 1940, the tax had been imposed upon the business dealt with simply as a privilege tax, and these laws had carried the provision that municipalities could also impose the tax, in its proper proportion, upon that business. But for the first time when that section was brought forward as Section 221, Chap. 120, Laws 1940, there was inserted in the opening sentence of the section the words that the tax thereby imposed was a state-wide tax. Nevertheless, the old provision that the municipalities could also collect was left in the section, and, as we have already mentioned and quoted, Section 264 at the concluding portion of the chapter, expressly negatived the authority of municipalities to levy a tax on state-wide privilege taxes.
With these contradictory and blundering provisions, the court has striven to arrive at some dependable conclusion as to what was the legislative intent. The taxpayers have urged that inasmuch as the legislature deliberately inserted the designation at the very opening of the section to the effect that the tax was thenceforth to be considered as a state-wide tax, it was a mere inadvertence that the provision in regard to municipalities was not stricken out, and that in any event since both cannot stand together, the last expression of the legislature which is embodied in Section 264 must prevail, citing among others, Coker v. Wilkinson, 142 Miss. 1, 16, 106 So. 886.
The tax collector contends that the provisions of Section 264 are general in their nature, while the concluding paragraph of Section 221, allowing municipalities also to collect the tax, is a particular enactment dealing with that particular section, and, therefore, must be taken as excepted from the general language of Section 264 — citing, among others, Greaves v. Hinds County, 166 Miss. 89, 145 So. 900. But this does not adequately meet the difficulty, because in the same section, that is to say, Section 221, in which the particular language referred to is used, there appears at the very opening of the section the particular language that the tax thereby levied is a state-wide tax.
Other arguments and other rules of construction are pressed by each side. Rules of construction are valuable only as aids to the court in arriving at the legislative intent; but when we have applied all of them in the situation here before us, candor must compel us to say that we cannot confidently determine what was meant, and we, therefore, resolve the doubt in favor of the taxpayer — taxation is never to be allowed under a statute of doubtful interpretation. Pan-American Petroleum Corp. v. Miller, 154 Miss. 565, 122 So. 393, and the numerous cases cited therein.
Affirmed.
DISSENTING OPINION.
Chapter 120, Laws of 1940, revised the privilege tax code of the state and followed the plan pursued in Chapter 88, Laws of 1930, of designating several of the privilege taxes imposed as "state-wide taxes" to be collected by the State Tax Commission, the other taxes imposed to be collected by the county tax collector. Section 221 thereof imposes on transient vendors a state-wide tax for each county according to the following schedules: ". . . (o) Upon each transient vendor, or dealer of cigarettes, cigars or other tobaccos . . . $50.00." The concluding paragraph of the section provides that, "The privileges taxed by this section may be subjected to taxation by municipalities of the various classes, as now provided by law." It is under this paragraph of the section that the state tax collector is here proceeding, but a later section of the statute, Section 264 thereof, which permits municipalities to tax all of the privileges taxed therein, contains this proviso: "Provided, however, that no municipality shall levy any tax on any privilege which has been duly licensed for state-wide purposes as herein provided," and the appellee's contention is that this general provision of the statute is in conflict with and withdraws the express permission given municipalities in Section 221 of the statute to tax the privileges taxed by that section. Since the transient vendor tax is designated in Section 221 as a state-wide tax, it would be included in the general provision of Section 264 prohibiting municipalities from taxing privileges whereon a state-wide tax is imposed if this general provision of the statute stood alone, but when it is construed, as it must be, with the paragraph of Section 221 specifically granting to municipalities the right to tax the privileges taxed by that section, it must yield to the legislature's specific intent therein expressed. Insofar as I am aware, the universal rule for construing statutes is as set forth in 59 C.J. 993 et seq.: "Section 594. In construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent as deduced from the whole will prevail over that of a particular part considered separately." . . .
"Section 595. Provided always that the interpretation is reasonable and not in conflict with the legislative intent, it is a cardinal rule of construction of statutes that effect must be given, if possible, to the whole statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Just as an interpretation which gives effect to the statute will be chosen instead of one which defeats it, so an interpretation which gives effect to the entire language will be selected as against one which does not."
"Section 596. . . . General and special provisions in a statute should stand together, if possible, but where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part the particular provisions must govern, unless the statute as a whole clearly shows the contrary intention and they must be given effect notwithstanding the general provision is broad enough to include the subject to which the particular provisions relate. The particular provision should be regarded as an exception to the general provision so that both may be given effect."
These rules have been many times applied by this Court when construing a single statute or two or more statutes in pari materia as will appear from Madison County v. Stewart, 74 Miss. 160, 20 So. 857; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; White v. Lowry, 162 Miss. 751, 139 So. 874; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully v. Lumbermen's Mutual Casualty Co., 176 Miss. 388, 166 So. 541, 168 So. 609; Life Casualty Insurance Co. v. Walters, 180 Miss. 384, 177 So. 47; Dunn Construction Co. v. Craig, 2 So.2d 166, decided May 12, 1941.
In White v. Lowry, supra [ 162 Miss. 751, 139 So. 876], the court said: "There is therefore involved the application of that well-settled principle in the construction of statutes that, where a statute contains both a particular and a general enactment, and the general enactment in its most comprehensive sense would include what is embraced in the particular one, the latter must be given effect as to all cases which fall within the particular provision, and the general enactment must be taken to embrace only such cases within its general language as are not within the provisions of the particular enactment."
It follows, therefore, that the proviso in Section 264, of Chapter 120, Laws of 1940, because of the provision of Section 221 here under consideration, must be applied as if it read as follows: "Provided, however, that no municipality shall levy any tax on any privilege which has been duly licensed for state-wide purposes as herein provided, except upon privileges taxed by Section 221 of this chapter."
A cursory examination of the legislative history of Section 221, Chapter 120, Laws of 1940, will disclose that the application of this rule of construction carries out the legislative intent as expressed therein.
Since the adoption of the Code of 1880 (Section 585 thereof), a privilege tax has been imposed on transient vendors of merchandise with permission to municipalities to also impose a tax thereon, unless Section 221, Chapter 120, Laws of 1940, forbids. The designation of some of the privilege taxes as "state-wide taxes" first appeared in Chapter 88, Laws of 1930, and was manifestly for the purpose of designating what privilege taxes should be collected by the state tax commission instead of by the county tax collector and on which municipalities were forbidden to levy a tax. Taxes so designated were mainly on privileges the tax on which had theretofore been collected by the state auditor set forth in Section 3894, Code of 1906. Chapter 20 of the Extraordinary Session of 1935 brought forward these provisions of Chapter 88, Laws of 1930. Section 225 thereof, which imposes a license on transient vendors, designates it as "a state tax for each county" and expressly permits municipalities to also tax the privilege. Section 221, Chapter 120, Laws of 1940, here under consideration, is practically a rescript of Section 225, Chapter 20, Laws of 1935, Ex. Sess., except that the designation therein of the tax as "a state tax for each county" was changed to "a state-wide tax for each county," the permission to municipalities to tax the privilege being retained as hereinbefore set forth. The tax imposed by Section 221, Chapter 120, Laws of 1940, must be paid for each county in which the taxpayer desires to do business, and is state-wide only when the taxpayer elects to pay the tax for every county in the state. Such also was the effect of Section 225, Chapter 20, Laws of 1935, Ex. Sess. Consequently, no distinction between the two sections appears that would reasonably have caused the legislature to permit municipalities to tax the privilege taxed by the latter, but to forbid it to tax the privilege taxed by the former.
It follows from the foregoing views that I am of the opinion that the state tax collector has the right to collect the municipal privilege taxes here involved. I concur in the holding that the appellees are not liable for the state taxes involved.