Opinion
No. 35924.
October 22, 1945. Suggestion of Error Overruled March 11, 1946.
1. LICENSES.
A levee is an "improvement or structure" within the statute imposing a privilege tax on persons who offer or bid to contract to construct specified structures "or other improvement or structure," being of the same general nature or class as those enumerated. (Laws 1934, chap. 119, sec. 2-e; Laws 1940, chap. 120, sec. 57(a, b)).
2. LICENSES.
Contractor, who contracted with War Department for construction of a levee along the Mississippi river, was subject to privilege tax imposed on contractors for enumerated construction projects and was liable for sales tax imposed on persons engaged in the business of contracting as defined in privilege tax law. (Laws 1934, chap. 119, sec. 2-e; Laws 1940, chap. 120, sec. 57(a, b)).
3. STATUTES.
Legislative intent, where a statute is unambiguous, must be gathered from the statute in the absence of something in its legislative history or other statutes indicating the contrary.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
J.H. Sumrall, of Jackson, for appellant.
No exemption existed from the taxes involved, because of the fact that such work as was performed within the State of Mississippi was performed for a federal department.
Laws of 1934, Ch. 119, Sec. 2-h.
An occupation tax measured by gross income is not invalid where imposed by a state upon a contractor with the United States as laying a direct burden on the Federal Government, even though the imposition of the tax may increase the cost to the Government of the work contracted to be done.
Compress of Union v. Stone, 188 Miss. 49, 193 So. 329; Cook v. Stone, 192 Miss. 219, 5 So.2d 223.
The activity of the plaintiffs in Mississippi constituted "contracting" in the sense contemplated by the Privilege Tax Law of Mississippi, and consequently if the activities of the plaintiffs engaged in Mississippi constituted contracting as contemplated by the Privilege Tax Law, then Section 2-e of the Sales Tax Law was applicable to such activity, and the tax was due as contractors under the Sales Tax Law.
Smith v. Perkins, 112 Miss. 870, 73 So. 797; Johnston v. Long Furniture Co., 113 Miss. 373, 74 So. 283; Stone v. York Ice Machinery Corporation, 193 Miss. 638, 10 So.2d 380; James v. Dravo Contracting Co., 302 U.S. 134, 82 L.Ed. 155; Alabama v. King Boozer, 314 U.S. 1; Penn Dairies v. Milk Control Commission, 318 U.S. 261; United States v. Allegheny County, 322 U.S. 174; Smith v. Davis, 323 U.S. 111; Privilege Tax Law, Ch. 120, Sec. 57, Laws of 1940; Sales Tax Law, Ch. 119, Secs. 2-e, 3, Laws of 1934; 11 Am. Jur. 725, Sec. 97.
W.E. Gore and Butler Snow, all of Jackson, for appellees.
The contracting for and the building of a levee was not included in the Privilege Tax Laws of 1935, 1936 and 1940, and the tax involved was erroneously demanded and collected.
State Tax Commission v. Memphis Natural Gas Co., 197 Miss. 583, 19 So.2d 477; Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880; Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510; Compress of Union v. Stone, 188 Miss. 49, 193 So. 329; Mississippi State Tax Commission v. Brown, 188 Miss. 483, 193 So. 794; State ex rel. Knox v. Home Oil Co., 148 Miss. 511, 114 So. 326; Smith v. Perkins, 112 Miss. 870, 73 So. 797; Johnston v. Long Furniture Co., 113 Miss. 373, 74 So. 283; Stone v. York Ice Machinery Corporation, 193 Miss. 638, 10 So.2d 380; Panhandle Oil Co. v. Knox, Attorney General, 72 L.Ed. 857; Indian Motorcycle Co. v. United States, 75 L.Ed. 1277; Graves v. Texas Co., 80 L.Ed. 1236; James v. Dravo Contracting Co., 302 U.S. 134, 82 L.Ed. 155; Kerns v. Perry (Tenn.), 48 S.W. 729; Thurman v. Morrison, 14 P. Mon. (Ky.) 367; Constitution of 1890, Secs. 227, 232; Laws of 1926, Ch. 118, Sec. 65; Laws of 1930, Ch. 88, Sec. 54; Laws of 1934, Ch. 118, Sec. 61; Laws of 1935, Sec. 57, Ch. 20, as amended by Ch. 154, Laws of 1936; Laws of 1936, Ch. 158, Sec. 5, amending Sec. 2-e of Ch. 119, Laws of 1934; Laws of 1940, Ch. 120, Secs. 56, 57, subdiv. (a), (b), (c); Laws of 1942, Ch. 122; 59 C.J. 1013; 7 Encyclopedia of Evidence 912.
Argued orally by J.H. Sumrall, for appellant, and by C.B. Snow and W.E. Gore, for appellee.
The appellant, Chairman of the State Tax Commission, collected from the appellees a privilege tax under sub-sections (a) and (b) of Section 57, Chapter 120, Laws 1940, and a sales tax under Section 2-e, Chapter 119, Laws 1934. Thereafter the appellees brought this action against the appellant for the recovery of the taxes so paid. A demurrer to the declaration was overruled and on the appellant declining to plead further judgment was rendered for the appellees in accordance with the prayer of their declaration.
Section 57, Chapter 120, Laws 1940, imposes a privilege tax on "each person who offers or bids to contract for a fixed price, commission, fee, or wage to construct, repair, or to superintend the construction or repair of any building, highway, street, sidewalk, bridge, culvert, sewer, or water system, drainage, or dredging system, electric, or steam railway, reservoir, or dam, hydraulic or power plant, electric lighting or power system, steam heating plant or system, transmission line, pipe line, tower, dock, wharf, excavation, grading, water wells, gas wells, oil wells or other improvement or structure, or any part thereof, the contract price of which exceeds the sum of three thousand dollars ($3,000.00)."
Section 2-e, Chapter 119, Laws 1934, imposes a sales tax on persons engaged "in the business of contracting, as defined in the privilege tax law of this state."
The contract which the appellees executed was with the War Department of the Federal Government for the building of a levee along a portion of the Mississippi River.
The appellees' contention is that a contract for the building of a levee is not within the provisions of Section 57, Chapter 120, Laws 1940, for the reason that levees are not "included within the designated items as set forth in the privilege tax law of 1940." Levees are not specifically mentioned in the statute, but unless a contrary intent appears are included in the general provision of the statute "or other improvement or structure" immediately following its specific provisions. A levee is undoubtedly an improvement or structure and the only limitation on these generic terms, "improvement or structure," is that to come within them an improvement or structure must be "of the same general nature or class as those enumerated," to cite authority for which would be supererogatory. Counsel for the appellee give several, we will assume, very good reasons why the legislature would have intended to exclude the building of levees from this tax. But the legislative intent where a statute is plain and unambiguous must be gathered therefrom in the absence of something in its legislative history or other statutes indicating the contrary.
The demurrer should have been sustained.
Reversed and remanded.