Summary
In Emmich the taxpayer was operating a store and the tax sought to be collected in that suit was an additional assessment.
Summary of this case from State Tax Collector v. NashOpinion
December 13, 1948.
1. State tax collector — what are past due and unpaid taxes.
The state tax collector has no authority except as granted him by statute, and he has no authority to collect back taxes where no assessment had been made and when therefore there was no accrued debt or obligation. Section 9179, Code 1942.
2. State tax collector — no authority to create a tax delinquency and thereupon to collect.
The principle that a state tax collector is simply a collector and has no authority to create the delinquency for which he may sue, applies to privilege taxes as well as to ad valorem taxes.
3. Statutes — a statute applicable in general terms yields to another which applies in particular terms — municipal privilege taxes.
A statute applicable in general terms yields to another which deals with a particular subject in particular terms; hence the Local Privilege Tax Law of 1944 dealing especially and completely and in every detail with the subject of municipal privilege taxes excludes any general statute although the latter without the particular statute might be held to apply. Section 9696-01 et seq. Supp. Code 1942.
4. Statutes — special statute which provides in detail all machinery for the assessment and recovery of privilege taxes, and this by local officers, is exclusive.
When a municipal privilege tax statute has provided and prescribed all the machinery in every detail for the assessment and recovery of municipal privilege taxes which should be but were not fully assessed and this by local officers, the state tax collector is excluded and has no authority to intervene and to make such assessments and thereupon to sue upon the assessments made by him.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, J.
L.C. Franklin, Jr., for appellant.
The State Tax Collector is under a statutory duty "to proceed by suit in the proper court against all persons . . . for all past due and unpaid taxes of any kind whatever, whether of the . . . municipality . . ., and for all past due obligations and indebtness of any character due and owing to them . . .", as is shown by the statutes, Sec. 9179, Code of 1942.
Section 9746, Code of 1946, as amended by Chapter 459, Laws of 1946, under the division on "Assessment" provides that "Every lawful tax . . . is a debt."
In accordance with the duty imposed upon appellant by these statutes, appellant brought this suit originally to recover from appellees additional store privilege taxes as a past due and unpaid tax and as a past due obligation and indebtedness of appellees. Delta Pine Land Company v. Adams, 93 Miss. 340, 48 So. 190, 193; Nickey v. State, 167 Miss. 650, 145 So. 630, 633.
Sec. 7179, Code of 1942, which defines the duty of appellant to sue to collect past due taxes and obligations lists three exceptions, which are "penalties for the violation of the anti-trust laws and except income and inheritance taxes." The courts properly should not ingraft other exceptions to the statute. Thus in Town of Purvis v. Lamar, 161 Miss. 454, 138 So. 323, 324, the court said: "We call attention to the rule that when a statute contains exceptions in express language there is an admonition to the courts that the exceptions thus expressed are the only ones contemplated, and that further exceptions should not be engrafted by construction unless the necessity therefor be inescapable or the propriety thereof be substantially incontrovertible."
A case directly in point on the issue as to whether the State Tax Collector had the authority to bring this suit is that of Craig, State Tax Collector, v. J.A. Jones Construction Company, Inc. 195 Miss. 378, 15 So.2d 45, which involves statutes markedly similar to those in the case at bar. In that case the State Tax Collector brought his bill for an attachment in chancery against the construction company to collect a contractor's license fee and privilege taxes allegedly due under a contract for the construction of an army camp at Camp Shelby. It was contended by the defendant that the State Tax Commission was vested with sole authority to assess and collect these taxes, but on appeal, the court held that appellant had authority to bring the suit.
By the same reasoning and analysis, the authority of the State Tax Collector should be upheld by allowing the suit at bar. The only difference between the two cases is that in Craig v. Jones Construction Co. the application for privilege license was supposed to be made to the State Tax Commissioner who had the duty to collect the tax, make demand therefor and distrain property in the event of non-payment, while in the case at bar, under the provisions of the "Local Privilege Tax Law of 1944," the municipal tax collector had the right to receive applications for store privilege taxes, made additional determintaions of taxes due, make demand therefor and collect same. But the fact that one official has such powers does not deprive appellant of co-equal and alternate rights and duties in the event the local official for any reason fails to collect such taxes. Rather, it is a more compelling reason for the State Tax Collector's bringing suit to recover the unpaid taxes which are due and are a debt. Furthermore, it is respectfully urged that there is all the more reason for this honorable court's imputing to the legislature in Craig v. Jones Construction Co. the intention to clothe the Tax Commissioner, an official with broad, discretionary, quasi-judicial powers, with the exclusive right to collect the privilege taxes there due than there is in the case at bar to impute to the legislature the intention to clothe the municipal tax collector with the exclusive power to determine additional privilege taxes due and with the sole authority to collect same. It is respectfully submitted that the case of appellant at bar is stronger than it was in Craig v. Jones Construction Co.
Pertinent and applicable to the decision of this case are those provisions of the "Local Privilege Tax Law of 1944," Chapter 137 of Mississippi Laws of 1944, appearing as sections 9696-01 et seq. in the 1946 Supplement to the Mississippi Code of 1942 as follows: Section 9696-01 gives the title and definitions, among which the "officer collecting the tax" in this instance is "the person who collects the taxes for the municipality, regardless by whatever title he may be known."
Section 9696-212 provides for the local tax collector's sending a notice to persons liable for privilege taxes, though not a prerequisite to liability therefor and provides for an assessment by the state tax collector of privilege taxes due, as follows: "Immediately upon receipt of an assessment by the state tax collector, or the tax commissioner, of privilege taxes due, the collector shall mail to the person liable for the privilege license, or licenses, and damages shown in the assessment, a notice thereof and the person liable for the privilege license and damages named in the assessment shall have ten days, after the notice has been given, within which to pay the tax." Thus showing that it is within the contemplation of said statute that the state tax collector may make an assessment of privilege taxes due, with damages. The requirements of 10 days notice to the taxpayer within which to pay the tax were observed in the case at bar, as were the requirements of 30 days notice after determination of the tax due likewise observed prior to bringing this suit.
Sec. 9696-225 provides for compensation to the local tax collector for collecting damages for non-payment of local privilege taxes when due and also provides for a reduction in such commissions where collection is made by said local official at the instance of the state tax collector. Said section is quoted in full, as follows: Section 9696-225. Compensation allowed tax collector for tax collecting damages. — On all privilege taxes not paid during the month when due and on which a penalty is collected, the tax collector making such collection shall be entitled to retain one-fourth of said damages, as compensation for his extra services, in addition to the regular commission now allowed by law on regular collections; provided, however, that if such collection is made by such tax collector, at the instance of the state tax collector, or through his authorized deputies, the said tax collector shall receive only ten per cent of said damages, in addition to the regular commissions allowed by law on regular collections. Provided, further, that if a collection is made of any delinquent tax and damages assessed and levied by this act at the instance of any constable of this state, and of any police officer of any municipality, the said tax collector shall receive only ten per cent of said damages in addition to the regular commissions allowed by law on regular collections, and the peace officer shall receive as compensation for this service fifteen per cent of said damages, and the officer collecting the tax is hereby directed to pay to the constable or police officer the commission allowed by this section for the collection of the delinquent tax and damages at the time of the collection of said tax and damages."
Which shows that the legislature contemplated imposing upon the state tax collector duties with respect to collecting said privilege taxes, inasmuch as the section immediately above provides for reduced commissions to the local tax collector where collection was made "at the instance of the state tax collector." The section is silent about commissions to the state tax collector, although it provides for splitting commissions between constables and tax collectors and police officers and tax collectors. Such silence is undoubtedly due to the fact that commissions are provided elsewhere not to exceed 20% in the event of collections by the state tax collector and is it reasonable to assume that the legilature intended the application of said statute, which will be discussed more fully hereinafter, rather than the performance of services by the state tax collector free gratis, whose expenses must be largely met under the law out of commissions earned.
Construing these aforesaid statutes together, it is apparent that the legislature did not intend to vest in the local tax collector sole power to determine the amount of additional local privilege taxes due with the exclusive authority to collect same, but that, rather, the appellant is given an additional cumulative, alternate method of determining the amount of said tax and proceeding by suit to collect same. It is apparent that the very reason for creating the office of state tax collector was to collect unpaid taxes, which would not otherwise be collected. In our government, both federal and state, the provision for commissions as payment to appellant for services rendered as best calculated to insure collection of such taxes as would otherwise not be collected, by imposing upon appellant the duty to collect such past due and unpaid taxes and obligations.
The honorable lower courts in denying that appellant had right to maintain this suit did so on the ground that the Privilege Tax Law of 1944 provided an exclusive means of determining additional privilege taxes due and unpaid and of collecting same, placing the jurisdiction thereof in the hands of the local tax collector. It is respectfully urged that on the contrary said Privilege Tax Law of 1944 does not so limit the authority of appellant and that nowhere therein is there the specific provision excluding appellant from collecting the taxes herein involved. Nor is this done by implication or as a necessary inference from the wording of said statutes quoted supra. With due deference it is urged that the honorable lower courts mistook the nature of the case at bar and failed to make the distinction between the nature of property taxes and privilege taxes. The legislature, in effect, makes the assessment of privilege taxes by fixing the amount of privilege tax due under the privilege tax statute, once the local governing authorities adopt the tax code as was done in this case. The cases hereinafter quoted hold that no assessment of privilege taxes is necessary. There is no elaborate method of assessment as in the case of ad valorem taxes on property, real and personal, with the provision of law for equalization of taxes, transfer of the rolls to the state tax commission for approval or changes, conformance by the board of supervisors or city authorities and elaborate provisions for tax sales in the event of non payment of the taxes due on the property. As assessment of privilege taxes is not a condition precedent to suit by appellent to recover the taxes due herein. Such determination as is necessary to arrive at the value of the stock of merchandise in appellee's store can be made equally as well by the deputies appellant is authorized to have as by the local tax collector. In the event a taxpayer has a stock of merchandise in his store in excess of that upon which he is paying privilege taxes, the state tax collector should, and for good cause, does have authority to determine that fact and collect the tax. It would appear that the legislature intended that appellant have such authority. The powers of the office of State Tax Collector appeared on the statute books of Mississippi long before the passage of the privilege tax law of 1944. It must be assumed that the legislature was cognizant of those powers and intended the State Tax Collector to retain same or it would have specifically repealed the prior existing law rather than permit said statutes to remain unchanged.
A debt made such by the legislature in imposing a privilege tax is as much a debt and has just as much sanction of authority, if not more, than does one arising under contract for the rental of buildings.
The learned circuit judge below relied upon the case of Craig v. Southern Natural Gas Co., 193 Miss. 76, 8. So.2d 230 in rendering his written opinion herein against appellant. In that case the court held that the State Tax Collector was without authority to collect privilege taxes from the gas company based on the length of pipe-lines in the State and the diameter of the pipe and that the Tax Commissioner had exclusive jurisdiction to determine that privilege taxes were due and in what amount they were due.
The Southern Natural Gas Co. case is decided on the basis of the statute therein involved, which specifically gives the State Tax Commissioner exclusive jurisdiction over the matter of assessing and collecting the privilege tax upon pipe-lines in question. It is illustrative of those cases denying to the State Tax Collector the power to institute suit on the grounds of specific statutory exceptions having been engrafted upon the general powers of the state tax collector, such as, in the authority to assess and collect sales taxes, which is vested in the state tax commission (Craig v. Dunn Construction Co., 2 So.2d 166, Sugg. of Error Overruled, 3 So.2d 834), or again where there is provided a special remedy for the collection of the tax to the exclusion of ordinary remedies (Craig v. C. G. Ry. Co., 5 So.2d 681; Enochs v. Robertson 128 Miss. 361, 91 So. 20; and Craig v. So. Natural Gas Co., supra) or in that class of cases where, by statute, no tax is due until there has been made a prior administrative or quasi-judicial determination of value or class, where it is necessary under the statute that such classification of assessment be made by some official other than the state tax collector before suit may be brought (R.R. Co. v. Adams, 83 Miss. 306, 36 So. 144; Enochs v. Robertson, supra, and Craig v. So. Natural Gas Co., supra). It will be noted that in this last class of cases, the statute provides for the exercise of discretionary, quasi-judicial powers in some official with supervisory, administrative status and that provision is made for a hearing, review and appeal therefrom.
The case at bar does not belong to any of these classes of cases. Nowhere in the privilege tax law of 1944 is there any provision for exclusive jurisdiction over the assessment and collection of municipal privilege taxes vested in the municipal tax collector, who is a ministerial officer rather than an administrative officer. The local tax collector has the function of simply collecting taxes. He does not have the responsibility of determining whether the tax is due. The provisions of the local privilege tax law of 1944 with respect to additional assessments of local privilege taxes do not specifically state directly or by implication that the local tax collector has the exclusive duty to assess and collect said taxes. Sec. 9696-208, Code of 1942, with 1946 Supplement provides: "If, however, such officer, shall, before issuing the said license, or at any time thereafter, having reason to believe that the statements of the business contained in the application are incorrect and false in any material particular, the said officer (local tax collector) shall duly notify the applicant wherein the supposed discrepancy lies, and he is empowered to require the applicant to render such other information as will enable him to determine the proper tax due."
But the same provides no special, exclusive statutory scheme for determining the amount of the tax due and collecting same. The effect of the section is very casual — if it comes to the attention of the local collector that more tax is due is the basis on which such assessment and collection is authorized. There is no special administrative machinery set up whereby the taxpayer appears before the official for a hearing, and there is an order as to his liability, with the right to appeal therefrom. A simple assessment is merely made for ordinary privilege taxes, with both the tax and the classification fixed by the legislature. It would be different if this were a case involving complicated questions of valuation on a unit mile basis such as applies to railroads, which have always received special treatment by the legislature. It would be hard to conceive of a matter with which a deputy of the state tax commissioner would be more conversant that that of arriving at the value of the stock of merchandise of a store. In short, it is respectfully submitted that the legislature was silent about any elaborate scheme for the assessment and collection of the taxes at bar because it knew and took into consideration that in event of failure on the part of the local tax collector to collect the taxes due that the state tax collector had been granted authority to collect those taxes and it intended that such should be the case for the protection of the public and in order to reduce taxes by the collection of those that were due.
A careful reading of the provisions of the Local Privilege Tax Code of 1944 will show that no distinction is made between sheriffs and municipal tax collectors therein. It is a well known fact that a great deal of the time and energy of sheriffs is consumed with law enforcement functions and that it must have been within the contemplation of the legislature that both types of local tax collectors were subject to the supervision of the state tax collector to the extent that the state tax collector could bring suit for such privilege taxes if they were not paid.
The functions of local tax collectors are ministerial. The ministerial act is performed in obedience to the mandate of legal authority and in accord with statutory direction. The statute imposes the privilege taxes herein. It is the duty of the local official to collect the taxes that are due. He is not supposed to exercise judicial or quasi-judicial functions. (Railroad Company v. West, 78 Miss. 789, 29 So. 475; Revenue Agent v. Stonewall Cotton Mills, 80 Miss. 94, 31 So. 544; and Revenue Agent v. Kuykendall, 83 Miss. 571, 35 So. 830). Under section 100 of the Constitution of 1890, it is unlawful for any obligation due a city to be released without just compensation therefor. If this tax here asserted to be due is due, it would be unreasonable to assume that the legislature intended by its statute to create a chaotic situation of non-collection of just taxes by which this section of the constitution would be violated.
It is a matter of concern to the entire state as to whether a municipality or other local governing authority collects taxes due in that locality. During the 1948 session of the legislature millions of dollars were appropriated out of the surplus in the state treasury for distribution to the various counties and cities of the state. Finally, it is a matter of grave public concern as to whether taxes which are due are paid.
Finally, it is respectfully submitted, that in accordance with the fundamental rule of statutory construction, the laws providing for the collection of the local privilege taxes enacted in 1944 and those previously enacted and setting forth the duties and powers of the state tax collector, if at variance, can best be reconciled and both given effect by recognizing in the state tax collector alternate powers of determining the tax due and proceeding by suit to collect these taxes in the case at bar.
In arriving at the determination of this case, it is respectfully urged, that consideration should be given to the nature of the privilege tax involved, the purpose of creating the office of state tax collector, the broad powers granted to him, the relative duties of appellant and the local tax collector, in fact, all the circumstances and applicable law applying hereto, taking into consideration the effect of denying the power of appellant to bring this suit and the possibility of laxity in tax enforcement resulting therefrom, which would amount to upsetting an established custom and method of collecting taxes engaged in by the state tax collector and revenue agent since the creation of those offices.
Voller, Teller Biedenharn, for appellee.
On October 27, 1947, a deputy state tax collector appeared and served notice on appellee that the licenses which appellee then held, as duly issued by the Assessor of the City of Vicksburg, were insufficient, and, for appellee to be placed in the good graces of the office of the state tax collector, a further sum of $612.50 must be forthwith paid.
Now the law, Sec. 9696-01, supplement to Code of 1942 (Sec. 1, said Chapter 137) tells appellee that "all licenses shall be good, usable and valid for one year from the date thereof" — and the actual licenses issued appellee over the signature of the city tax assessor so stated. In the same section of the statutory enactment, appellee was also told by the legislature that "The words `officer collecting the tax' shall mean . . . the person who collects the taxes for the municipality, regardless by whatever title he may be known" — in this case the assessor and tax collector of the City of Vicksburg and certainly not a roving deputy from the office of the state tax collector.
Further and of paramount and controlling importance, the applicable statutes proclaimed the appellee that no additional assessment could be made by other than the assessor of said city who had issued to appellee the license. Nothing could be clearer. Sec. 9696-208, supplement to Code of 1942 (Sec. 204, said Chapter 137).
Every reference to the word "officer" is, in this instance, to the Assessor of the City of Vicksburg — and not to the state tax collector nor to any of his deputies. See "definitions" in the first section of the "Local Privilege Tax Law of 1944."
Here we have a taxpayer who has paid his taxes in amounts entirely satisfactory to the elected local officer issuing the licenses. This officer, the elected Assessor of the City of Vicksburg, is accountable to his constituents and the elected Mayor and Aldermen of Vicksburg. He is familiar with the businesses, the revenues and the tax problems of the city, and is charged by law with the issuance of store privilege taxes in the proper amounts after himself ascertaining "the correct amount of tax due." Failing in his duty, this Assessor of the City of Vicksburg is not only subject to public censorship and to be deposed from office, but is himself civilly liable for the tax plus 50 per cent penalty thereon if he "wilfully fails to collect" plus an additional $100.00 penalty "for each such failure," as set forth 9696-226, supplement Code of 1942 (Section 222, said Chapter 137).
The Declaration sets up an "additional assessment." Necessarily, as a precedent step to liability, an assessment different than that fixed by the City Assessor is prerequisite. The statute (said Sec. 9696-208, said Sec. 204 of Chapter 137) places, under the notices and terms therein prescribed, this duty and right solely in the officer collecting the tax and having issued the license. Therefore, it is crystal clear that neither the state tax collector nor his deputies are clothed with this right and power.
That the state tax collector does not have any assessing authority is noted from Sec. 9184, Code of 1942. As there stated, "should the state tax collector discover that any person . . . business, occupation or calling has escaped taxation . . . by reason of not being assessed" then the state tax collector gives notice to the "tax assessor" (not the taxpayer), and the statutory scheme for notice and an opportunity to be heard before and by the municipal authorities is afforded — and thereby "due process of law" and not the whim or judgment of one sole deputy is the result contemplated. The learned judge of the county court discusses said Sec. 9184 in his opinion.
Long ago this court held that the state tax collector has no assessing authority — simply the authority to collect past due taxes which have been properly assessed but are uncollected. See State ex rel. Revenue Agent v. Thibodeaux, 69 Miss. 92, 10 So. 58.
Then, and especially note, the clear and lucid opinion of this honorable court, speaking through Chief Justice Campbell, upon the reappearance of the Thibodeaux case, wherein a recovery by the Revenue Agent was reversed. The case, upon the second appeal is styled Thibodeaux v. State, 69 Miss. 683, 13 So. 352.
The Declaration at bar avers an "additional assessment" attempted by the deputy state tax collector. That a valid assessment was necessary to liability is recognized. Section 9696-208, supplement to Code of 1942 discloses that such an additional assessment can only be made by the officer having collected the tax, the Assessor of the City of Vicksburg, and then only after such local officer has notified the taxpayer "wherein the supposed discrepancy lies." Additionally, said Section 9696-178 (Sec. 174 of said Chapter 137) deals with the difficult question of valuation of a merchant's entire stock — "no mere tryo's job." This honorable court in the well reasoned case of State Revenue Agent v. Tonella, 70 Miss. 701, 14 So. 17, 22 L.R.A. 346 by apt language pointed out: "The question of value is one of the most difficult of solution in the administration of the law. One man may value an article at one price, and another at another, and another at another, and all be equally honest in their action. But it is also a relative question, for the value of one horse or cow or tract of land is largely determinable by the value of other horses and cows and lands at the same time and place. When the agent proceeds to re-examine the value of property assessed in years past, no just conclusion could be reached without consideration of the property of others assessed on the same roll. If the valuation of the property of one man is increased, so also must be that of every other man, if it has been undervalued, otherwise the principle of uniformity and equality is departed from. It is to be remembered that in all the assessments which are reopened by the law under consideration, the boards of supervisors had been charged with the duty of examining and equalizing the rolls: and, if this was done, as must be presumed, any action by the revenue agent in changing one assessment would disturb the uniformity and equality of the burden, unless his jurisdiction may be considered as a revisory one, and his finding of the fact of undervaluation of particular property be considered as a judicial determination that all other property appearing thereon had been assessed at its true value."
Long established, respected and adherred to is the rule that a valid assessment must precede liability for tax when valuation is an issue; and almost as well established is the premise that the local assessing authority and not the state revenue collector (even in cases where the property has wholly escaped taxation) must exclusively perform the function of making the assessment, all, as in the instant case, declared by the legislature in said Sec. 9696-208. We refer to the opinion of this court by Justice Cooper in State ex rel. Revenue Agent v. Adler (1891), 68 Miss. 487, 9 So. 645.
The rationale prompting strict conformity to the rule further appears in the case of State ex rel. Adams v. Taylor, 68 Miss. 730, 9 So. 894, wherein the official reporter states that the clause involved a claim for "unpaid privilege taxes for 1889 and 1890," and showed that "the defendant demurred to the declaration upon the ground that the demand was not such a debt as the law authorizes the state revenue agent to sue for and collect, and because there had been no legal assessment."
Since the Declaration with the exhibit affirmatively discloses that the appellee has paid all store privilege taxes for each of the three years in question as assessed by the local tax collector, the Assessor and Tax Collector of the City of Vicksburg, and since the law affirmatively and positively places the authority for, and the right to make, additional assessments solely and exclusively in the local officer collecting the tax, we, with confidence, submit the absence of any right in the state tax collector or any of his deputies to make the determination, the assessment, which is an essential prerequisite to the additional liability here contended for.
We therefore respectfully submit that appellee has here paid all store privilege taxes properly or legally assessed; and, for that reason, the upholding of the demurrer should be here approved.
The state tax collector, to proceed in any matter, must find his authority in the statutes of this state. The governing statute is Sec. 9179, Code of 1942.
Therefore, with reference to "taxes" (and that is what is herein involved), before the state tax collector may lawfully proceed to suit, the taxes must be "past due" and must be "unpaid." As an aside, we ask this court to also note that in cases of "valuation," and this confined to property which has actually "escaped taxation," the state tax collector's power stops with his authority to subpoena witnesses to testify before the actual taxing authority.
Here, the appellant appears under an alleged statutory authority for and in the name of the City of Vicksburg — the City that has assessed and collected the privilege taxes for 1945, 1946, and 1947 from the appellee and has issued licenses to appellee which the law levying the taxes proclaimed were "good, usable and valid" for each of the three years in question. Therefore, the city actually has and seeks to make no claim. These taxes are neither "past due" nor are they "unpaid" so far as the City of Vicksburg is concerned. In fact these store privilege taxes were by appellee promptly paid when due. Now, pray tell, how can the appellant be permitted to proceed on behalf of and in the name of this city which has no claim against appellee, desires to make no claim against appellee and is satisfied that appellee has met and discharged to it the full, fair share and sums which appellee, in equity, right and law, was due to bear and pay?
Surely, the right of the state tax collector here to proceed is dependent on the right of the City of Vicksburg to do so. At bar, said city has actually issued store privilege licenses to appellee for the three years in question which the city maintained, and still maintains, as its ordinance proclaims, are "good, usable and valid." Anomalous and untendable is appellant's contention that a deputy state tax collector can change the ordinance and, by his unauthorized act, either make "past due" taxes that have been timely collected when due or make "unpaid" taxes which have been actually paid.
The recent jurisprudence of Mississippi, as ably announced by this honorable court, assuredly precludes appellant from here proceeding. See the cases cited in the opinions of the courts below.
An analogous authority, referring to an attempt to collect a privilege tax, where the duty to determine the amount due rested with the State Tax commissioner (just as here with the Assessor of the City) is that of Craig, State Tax Collector, v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230.
Note also Craig, State Tax Collector, v. Stone, State Tax Commissioner, 194 Miss. 767, 11 So.2d 433, where "per curiam," this court denied the right in the state tax collector to collect an unassessed privilege tax.
Though further authority is not believed necessary, we do, for emphasis, refer to the case of Craig, State Tax Collector, v. Columbus Greenville Ry. Co., 192 Miss. 461, 5 So.2d 681, (cited at page 27 of appellant's brief).
The brief of appellant is concededly most able and exhaustive, and has been carefully studied by the writer of this brief who avails of this opportunity to extend compliments on the excellency of its composition. That appellant is palpably incorrect in the legal position taken we have endeavored to show beyond cavil without making specific reference to the points urged in the order set forth in appellant's brief. For instance, the learned circuit judge below in his opinion points out the inapplicability of the case of Craig v. Jones Construction Co., 195 Miss. 278, 15 So.2d 45, to the facts at bar. We could indeed amplify on this opinion, but content ourselves by emphasizing that, in the Jones case, there had been no collection by the Tax Commissioner, no privilege tax issued by him or held by Jones, and it was a simple matter from the public contract itself (involving no determination of value) to compute the liability past due and to collect the unpaid taxes.
This case originated in the County Court of Warren County, where the State Tax Collector filed an action against appellees "for the use of the City of Vicksburg," as stated in the declaration.
"That said defendants, M.B. Emmich, Helen B. Emmich, and Ethel R. Emmich, doing business as as Emmich Brothers, which is a store in the City of Vicksburg, Mississippi for the sale of goods, wares and merchandise were so engaged in said business on January 1, 1945, and have continued in same to the date of filing hereof. That during said period of time, that is, for the fiscal years from January 1st, 1945, to January 1, 1946 and from January 1st, 1946 to January 1st, 1947 and from January 1st, 1947 to January 1st, 1948 said defendants have engaged in said business without the payment of proper, adequate and sufficient municipal, store privilege license, as required by pertinent, applicable state laws enacted in the State of Mississippi and adopted by the said municipality of Vicksburg, Mississippi and computed in the manner and on the basis provided by said laws.
"That on October 27th, 1947, the plaintiff by his deputy additionally assessed said defendants with an additional Store Privilege Assessment, No. 4427 for said fiscal years: January 1, 1945 to January 1, 1946; January 1, 1946 to January 1, 1947 and from January 1, 1947 to January 1, 1948, additional assessment plus damages amounting to a total of nine hundred and eighteen and 75/100 dollars ($918.75), a copy of said assessment marked Exhibit `A' is attached hereto and made a part hereof."
The defendants refused to pay such additional assessments, and the State Tax Collector, as stated, sued for the difference between the amount fixed by, and paid to, the local tax collector of the City of Vicksburg, and the amount fixed by the State Tax Collector, this difference being due to diversity in the respectively determined values of the stock of merchandise. Both collectors used the schedule of privilege taxes.
The purported assessment of this difference by the State Tax Collector was in the form of a letter, a copy of which was exhibited with the declaration, addressed to appellees, Emmich Brothers. The City of Vicksburg was not a party to it, and did not consent thereto, or authorize it; or have any thing to do with it.
The defendants demurred to the declaration on the grounds that the State Tax Collector had no right of action or authority in law to make an additional assessment with reference to the store tax for which suit was brought; that the exclusive assessing authority as to the privilege taxes in controversy was vested with the assessor of the City of Vicksburg; that the declaration shows on its face that the defendants had paid the store privilege tax assessment for the years in question in amounts satisfactory to, and received by, the taxing authorities of the City of Vicksburg, and that complainant had no power to impose an additional or different assessment; and, that, in the absence of an additional assessment by the tax assessor and the governing authorities of the City of Vicksburg, who had the exclusive and sole right to make such additional assessments for said City under the statutory laws, there was no accrued debt or obligation which the State Tax Collector or anyone else had a right to seek to collect or a cause of action therefor.
The county court judge sustained the demurrer, and dismissed the action. In his opinion, the presiding judge of that court held that since the amount demanded by the State Tax Collector had never been imposed as a privilege tax against defendants by the municipal tax collector as comprehended under the provisions of Sec. 9696-03 of the 1946 Supplement to the 1942 Code, there was no "past due" obligations within the meaning of Sec. 9179, Code 1942. He also held that Secs. 9696-207 and 9696-208 of said supplement prescribed a specific exclusive method of ascertaining the correct amount of the privilege tax in the City authorities.
The State Tax Collector appealed to the circuit court, where the county court judgment was affirmed. The circuit judge held that the case of Craig v. J.A. Jones Const. Co., 195 Miss. 378, 15 So.2d 45, relied upon by appellants, was not in point, because of differences in that case and the one at bar. He also held that the instant case was controlled by Craig, State Tax Collector, v. Southern Natural Gas Company, 193 Miss. 76, 8 So.2d 230, and Craig, State Tax Collector v. Stone, State Tax Commissioner et al., 194 Miss. 767, 11 So.2d 433. From an adverse judgment, therefore, by the circuit judge, the State Tax Collector has appealed here, as stated.
It is contended by appellant that the Mississippi Statutes impose upon the State Tax Collector the duty to collect these taxes as unpaid debts from appellees. The statutes, to which the above references is made, are Secs. 9179, Code 1942; and Sec. 9746, Code 1942, as amended by Chap. 459, Laws 1946. Sec. 9179, supra, provides that the State Tax Collector shall have the power and it shall be his duty to proceed by suit in the proper court against all persons, corporations, etc., "for all past due and unpaid taxes of any kind whatever, whether of the state, county, municipality, drainage, levee or other taxing district, or any subdivision thereof, and for all past due obligations and indebtedness of any character due and owing to them or any of them, except penalties for the violation of the anti-trust laws and except income and inheritance taxes."
Sec. 9746, Code 1942, as amended by Chap. 459, Laws 1946, provides that every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem (including separate or special school district taxes), is a debt due by the person or corporation owning the property or carrying on the business or profession upon which the tax is levied or imposed, whether properly assessed or not, or by the person liable for the income, inheritance or excise tax, "and may be recovered by action; and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct."
Appellant, as stated, relies upon Craig v. J.A. Jones Construction Co., supra, to support his claimed power as State Tax Collector in the premises. Without detailing the same, we content ourselves by stating that we agree with the circuit judge that the differences in that case and the one here before us are enough to remove it from controlling the issues before us. It does not deal with Sec. 9696-01 et seq., the "Local Privilege Tax Law of 1944."
As to Sec. 9179, supra, we held in Craig, State Tax Collector v. Stone, supra, (Hn 1) that under that statute the State Tax Collector had no authority to collect back taxes, where no assessment had been made, and there was, therefore, no accrued debt or obligation. Nevertheless, that is what is being attempted here, in our opinion. This difference had never been imposed under the "Local Privilege Tax Law of 1944," and the attempted invalid imposition thereof by the State Tax Collector was ineffectual to make refusal to pay it create a past due obligation. We said in Craig v. Stone, just cited, that: "The State Tax Collector must find his powers in the statutes; he has none other. He confesses that he is unable to proceed under Sec. 6986, Code 1930, because no assessment has been made and that therefore there is no accrued debt or obligation, as was held in the cited opinion." Sec. 6986, Code 1930, is now Sec. 9179, Code of 1942.
As to Sec. 9746, as amended by Chap. 459, Laws 1946, appellant relies on Delta Pine Land Company v. Adams, State Revenue Agent, 93 Miss. 340, 48 So. 190, 193. That case dealt with assessment for ad valorem back taxes, under general authority, and is not pertinent here. While this statute embraces, within its provisions, privilege taxes, which may be recovered by action, the act itself limits the subject-matter to "Every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, . . ." Here, we have, in our opinion, an unlawful tax attempted to be imposed by the State Tax Collector, and, therefore, no action will lie for its recovery from the taxpayer. In the case of State, ex. rel. Adams, Revenue Agent, v. Adler, 68 Miss. 487, 9 So. 645, 647, this Court held that: (Hn 2) "The revenue agent is a pure collector, authorized only to collect taxes already assessed and delinquent, and having no authority to create the delinquency for which he may sue." This case also deals with assessment of property, but announces also the principle applicable to the privilege tax at bar, we think. The amount of the privilege tax on a person for operating a store depends on the value of the stock of merchandise. Sec. 9696-178, 1946 Supplement to the Code of 1942, which Act provides it shall be cited as "Local Privilege Tax Law of 1944." This value must be determined by someone, as to which we have said "The question of value is one of the most difficult of solution in the administration of the law." State Revenue Agent v. Tonella, 70 Miss. 701, 14 So. 17, 22 L.R.A. 346. Yet, here we are asked to construe the law so that the Legislature will appear to have carelessly provided that a traveling deputy state tax collector may, without prescribed formality, fix the value. Such construction would be unsound and ascribe undeserved laxity to the Legislature. Especially is this true in the case at bar in view of the meticulous care the Legislature displayed in Secs. 9696-207 and 9696-208, in the "Local Privilege Tax Law of 1944." Those two statutes, in close detail, provide for application by the taxpayer to the local tax collector, and a carefully worked out system for the latter to determine and fix the proper privilege tax, based on value.
But, appellant contends that such general powers are conferred on the State Tax Collector by the statutes on which he relies, as pointed out ante, as supersede those conferred upon the local taxing powers of Vicksburg; that the exceptions listed in Sec. 9179 do not number local municipal taxation among them, and hence it is not excepted therefrom. Laying aside other elements involved, for the moment, it is here only necessary to call attention to the well-known principle of statutory construction that (Hn 3) a statute applying in general terms yields to one applying in particular terms. Here, is not a matter of exceptions listed in a general statute, but of specific provisions in a special statutory system, applying generally to all municipalities adopting it. Here, obviously, Sec. 9696-01 et seq., is a special and complete scheme of taxation and collection by local authorities, and the Legislature so construed it by entitling it "Local Privilege Tax Law of 1944." While this law provides for local management of taxation, it applies generally to all municipalities electing to come within its provisions. Vicksburg so elected. If it be conceded here, for the sake of discussion, but which we do not decide, that the general statutes on which appellant relies, if standing alone would include the same matter as the "Local Privilege Tax Law of 1944," the particular and specific and special provisions of the latter would supplant the generic powers granted the State Tax Collector, because they have been expressly and exclusively conferred on municipal tax authorities in relation to the matter of municipal privilege taxes. Greaves et al. v. Hinds County, ex rel., 166 Miss. 89, 145 So. 900.
(Hn 4) Let us now examine the "Local Privilege Tax Law of 1944." Sec. 9696-01 defines "officer collecting the tax" to mean "the sheriff and tax collector of the county, or in the case of municipalities, the person who collects the taxes for the municipality, . . ." It also provides that all licenses shall be good, usuable and valid for one year from the date thereof, unless a more limited time is shown, and shall never be issued for a longer period than one year.
Sec. 9696-03 requires that every person desiring to engage in any business specified in the Act shall first, before commencing the same, apply for, pay for and procure, if such business is located in a municipality having adopted "this privilege tax code," a privilege license authorizing him to engage in such business.
Sec. 9696-178 contains the schedule of privilege tax in proportion to listed values of stocks of merchandise, as applicable under the act to all persons operating a wholesale or retail store for the sale of goods, wares and merchandise. The appellees operated a store in the City of Vicksburg. The section provides that any license issued under its provisions shall be revoked by the officer issuing it, if an investigation by him, or at his instance, or on the complaint of any citizens of this State, discloses that the conditions imposed by the section have not been, or are not being, complied with.
Sec. 9696-207 requires that application for a privilege license shall be made to the officer who is required to collect the tax. It must be sworn to and shall be on blanks furnished by such tax collector. Such officer may require additional information, but in any event, the officer who is required to collect the tax, (that is, in the case at bar, the municipal tax collector), must receive certain information detailed in the statute. The application must be accompanied by the amount of the privilege tax as required by law. The application must be preserved for three years for the grand jury, the courts and any duly authorized officer of the State.
Sec. 9696-208, in great and careful detail, requires that upon receipt of the application, and payment of the privilege tax shown therein to be due, the officer, to whom the application is made, must determine if it is proper form, if the amount tendered be correct, and may require "the applicant to furnish such other and further information as in his opinion is necessary to ascertain the correct amount of tax due. When the correct amount of the tax has been so ascertained, . . .", a privilege license shall by such office be issued to the applicant, according to the application. The license is to be dated as of the first of the month of its issuance. It shall be "good, usuable, and valid for one year after the date thereof, or for such other period as is fixed by law for the privilege, . . ." which period shall be designated in the license. The license is recorded in a book, issued in duplicate, the original transmitted to the licensee, and the duplicate retained by the collector as a permanent record of his office.
The statute, furthermore, deals with the matter of increase of the privilege tax by the local authorities in a carefully devised procedure, even after the privilege tax has been paid, and the license issued. This is the function which the State Tax Collector has assumed to perform in the case at bar, so that this part of Sec. 9696-208 of "The Local Privilege Tax Law of 1944" is particularly pertinent. It provides that: "If, however, such officer, shall, before issuing the said license, or at any time thereafter, have reason to believe that the statements of the business contained in the application are incorrect or false in any material particular, the said officer shall duly notify the applicant wherein the supposed discrepancy lies, and he is hereby empowered to require the applicant to render such other information as will enable him to determine the proper tax due. After making such determination of the proper tax due, . . . if the license shall have been issued under the original application, he shall collect the difference between the sum shown to be properly due, and the sum paid with the original application, and shall issue an additional license therefor which shall expire at the same time as the original." (Italics ours.) There is to be no penalty if the additional tax be paid in thirty days, and a willful refusal to furnish the additional information will be followed by imposition of damages on the derelict taxpayer, and such taxpayer "may be proceeded against civilly or criminally as otherwise provided herein, . . ."
Sec. 9696-226 makes it the duty of the municipal tax collector to require all persons liable therefor to pay privilege taxes; cause any person, failing to pay, to be prosecuted; to make demand for payment, plus 50 per cent penalty, and if payment be not made on demand, he "shall forthwith bring suit in his official character," (Italics ours) against all such persons legally liable for privilege licenses, and such suits must be prosecuted to final judgment and execution, if judgment be for such officer. The officer, to whom reference is made, is the "officer collecting the tax," as defined pertinently to the instant case by Sec. 9696-01, supra, "the person who collects the taxes for the municipality." It will therefore be seen that the Local Privilege Tax Law of 1944 expressly confers on the municipal tax collector the exclusive power to sue for past due privilege taxes, and that this section also gives a definition of "past due."
The municipal tax collector is liable for heavy penalties if he fail to perform these duties. And Sec. 9696-228 provides that "Any persons failing to pay the privilege taxes imposed by this act, and to obtain a license as hereby required, but pursuing the business for which a privilege tax is imposed without procuring such license, may be proceeded against by suit, . . . and the officer required to collect the tax may seize and sell any property of such person liable for such tax and penalty, in the same manner as he may distrain and sell property of other taxpayers delinquent for the payment of ad valorem taxes due on personal property." This statute is not especially pertinent to the precise issue before us, but is relevant as demonstrating a complete statutory scheme as to municipal taxation. This section also inferentially defines "past due" privilege taxes, and commits suits therefor, when due a municipality, to the local authorities.
Aside from the fact that the amount for which the State Tax Collector sued was not a "past due" obligation within the applicable statutes, supra, or even under the statute on which the authority is claimed, that officer had no power to assess these appellees as was attempted, and this action in so doing, under the circumstances, was illegal and of no effect. It is not necessary, in our judgment, to prolong this already too long opinion, by discussing the numerous cases cited on both sides, in view of the explicit provisions of "The Local Privilege Tax Law of 1944." No construction of it has heretofore been made by us. We think that Sec. 9696-01 et seq., in which it is provided that it is to be cited as the "Local Privilege Tax Law of 1944" clearly answers all of appellant's arguments seeking to sustain the right of the State Tax Collector to make the so-called assessment and to sue for same, for the use of the City of Vicksburg, in the case at bar, without citation of any court decisions. The Local Privilege Tax Law of 1944 confers the power and duty exclusively upon the proper municipal taxing officer.
In view of what we have said, we are constrained to affirm the judgment of the circuit court affirming the judgment of the county court.
Affirmed.