Opinion
No. 31436.
November 19, 1934.
1. LEVEES AND FLOOD CONTROL.
Statutory penalty for removal of cotton from levee district without paying levee tax and without consent of levy commissioners should be allowed only in case of culpable fault or omission, "culpable" meaning that which is deserving of moral blame (Laws 1906, ch. 128, sec. 5).
2. LEVEES AND FLOOD CONTROL.
Levee commissioners held not entitled to recover statutory penalty for removal of cotton from levee district without payment of tax and without commissioners' consent, where cotton purchaser believed, upon representations of sellers, that cotton had not been grown within district and, upon discovering that cotton had been grown in district, purchaser paid normal levee tax (Laws 1906, ch. 128, sec. 5).
APPEAL from the Chancery Court of Washington County.
Ernest Kellner, Jr., of Greenville, and John T. Smith, of Cleveland, for appellant.
There is no proof (and appellant does not contend) that appellee shipped either the one hundred and sixteen bales or the five bales out of the levee district, without paying the tax thereon and without the consent of appellant, with an intent to evade the payment of the tax thereon.
Section 5, chapter 128, Laws of 1906 (now — section 27, chapter 154, Laws of 1932) which, by its language, imposes a tax of ten dollars per bale for removing taxable cotton from the levee district without paying the tax thereon and without the consent of the levee board, has been held to impose a penalty.
Goodstein v. Bd. of Miss. Levee Commissioners, 153 Miss. 783.
The statute is silent on the question of intent. It simply imposes a penalty for the doing of the act condemned without the consent of the levee board.
The difficulty of the collection of the tax and the ease with which a dishonest person may defeat the payment thereof necessarily influenced the Legislature in imposing a penalty so greatly in excess of the normal tax and leads to the conclusion that the Legislature intended that the penalty should attach by a removal of the cotton in violation of the statute, even though such violation may be innocent.
8 R.C.L. 62; Holstead v. State (New Jersey), 32 Am. Rep. 247; King v. State, 66 Miss. 502; Bacot v. State, 94 Miss. 225; 26 R.C.L. 385.
In the case of State ex rel. Roberson v. C. G.R. Co., 129 Miss. 564, as to the recovery of damages for failure to pay ad valorem taxes as required by law, it was held that such damages accrued and were recoverable under the express terms of the act.
Jorgensen-Bennett Mfg. Co. v. Knight, 156 Tenn. 579, 3 S.W.2d 668, 60 A.L.R. 393.
We respectfully submit that appellee's intentional violation of the statute involved in this case, though based on a good faith mistake of fact, does not relieve appellee of the penalty imposed by the statute.
Shands, Elmore Causey, of Cleveland, for appellee.
This action is based upon a claimed violation of section 27, chapter 154 of the Laws of 1932, which is the same as section 5, chapter 128 of the Laws of 1906.
This court, in the case of Goodstein v. Board of Mississippi Levee Commissioners, 153 Miss. 783, speaking through GRIFFITH, Justice, announces that this ten dollars is a penalty pure and simple, citing as authority for such holding the case of Helwig v. U.S., 47 L.Ed. 614.
It is a fundamental rule for the construction of statute that where certain language has been defined in the interpretation of one statute, the same language will be given the same interpretation where used in another statute.
Darrill v. Dodds, 78 Miss. 912; Haley v. Taylor, 77 Miss. 867; Smith v. Saucier, 40 So. 328; Therrell v. Ellis, 83 Miss. 494.
In the case of Rector v. Outzen, 93 Miss. 254, the court speaking through Justice CALHOUN, recognizes the position for which I contend, that although the act itself was knowingly done, it was done by reason of a mistake of fact, and with no evil intent, no penalty should be inflicted. I submit that these constructions of this statute (section 3411, Code of 1930), in identically the same words as the statute in the case at bar, sustain the finding of the chancellor, that the shipping of the cotton, under the circumstances, complained of, as disclosed by the evidence, should not subject the party to the payment of the penalty, after the tax had been paid in full and over, before any suit was instituted.
Goode v. State, 87 Miss. 495; Two Rivers Manufacturing Co. v. Beyer et al., 42 N.W. —; County of San Bernardino v. Southern Pacific Railroad Company, 30 U.S. 125.
Appellee purchased in, and shipped from, the Mississippi Levee District one hundred and sixteen bales of cotton, without first paying the levee tax thereon, but in the belief, founded upon the representations of the sellers, that the cotton had been grown in a nearby county, not within the district. Upon discovering that the cotton had been grown in the district, appellee paid the normal levee tax thereon, but declined to pay the statutory penalty of ten dollars a bale demanded by the levee commissioners, whereupon suit was instituted by the commissioners for the said penalty.
The suit is based upon section 5, chapter 128, Laws 1906, wherein it is provided that: "It shall be unlawful for any one to remove or cause to be removed from the Mississippi Levee District any cotton grown therein without first paying the levee tax thereon, and any one so removing such cotton without paying such tax and without the consent of the levee board of said district, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined; . . . and in addition the board of Mississippi levee commissioners shall be entitled to recover from the person so removing such cotton a tax of ten dollars ($10) for each bale . . . on all cotton so removed. . . ." It will be observed that the concluding language of the quoted statute denominates the additional ten dollars a bale as a tax, but in Goodstein v. Board of Miss. Levee Com'rs, 153 Miss. 783, 791, 121 So. 856, this court held that the so-called additional tax is nevertheless a statutory penalty.
It is admitted here that the cotton in question was in fact grown in the district; that it was removed from the district without first paying the levee tax thereon and without the consent of the levee board; and it is the contention of the board that these facts of their own force perfect the right of the levee district to recover the penalty; while appellee contends that it is necessary that the ultimate facts shall show that the act of appellee was one of culpable fault or omission on its part.
Among our statutes, perhaps none of them are more nearly similar in language, in respect to the imposition of penalties, to the statute here under review than those providing penalties for the cutting of trees on the land of another without the consent of the owner. Those statutes are silent, as is the one here, as to the intent of the offender; but from the beginning, they have been construed to mean, as was recently said in a summary of them in Seward v. West, 168 Miss. 376, 385, 150 So. 364, 366, "that statutory penalties such as this `are designed chiefly as punishment, are quasi criminal,' and that recovery therefor should be allowed `only in case of culpable fault or omission.' Culpable means that which is deserving of moral blame." And in that case the court further declared: "Without unduly extending comment, we add by way of summary that this court has always been cautious in the infliction of the statutory penalty, and will allow it only where the facts are well proved and where the testimony shows the trespass to have been willful, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to willfulness."
But appellant contends that while the stated rule in respect to the infliction of statutory penalties may well be conceded to be correct as to controversies between private parties, it should not prevail in cases of the collection of the public revenues, so essential to the carrying on of great public works such as the maintenance of the levees; and in support of this contention appellant cites cases of the enforcement of statutory penalties for the nonpayment of assessed taxes within the time required by law. In those cases when the assessment has been validly made, spread upon the public records, and become a judgment, no extraneous circumstances are, as a general rule, within the province of further inquiry. But as more analogous to the question here before us, there are those statutes existing in many states which impose penalties upon taxpayers for the failure to report, or to make list or statement of their taxable property, in which states, almost without exception, their courts hold that under such statutes the statutory penalty is not recoverable unless the act or omission of the taxpayer was fraudulent or willful, or at least with culpable negligence. See 16 C.J., pp. 1485, 1486. And so we hold in this case, since the act or omission of the taxpayer was the failure to report taxable property; and we affirm the decision of the chancellor, since the facts disclosed by the record are sufficient to support his conclusion that the omission to report and to pay before removal of the cotton was not "willful, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to willfulness."
Affirmed.
Anderson, J., disqualified, takes no part.