Opinion
No. 33119.
April 25, 1938. Suggestion of error overruled June 6, 1938.
1. AUTOMOBILES.
Under statute imposing mileage tax for operation of passenger busses for hire and excluding busses used in lieu of street cars in or between municipalities, operation of busses entirely within city and in lieu of street cars, which busses were not operated as permit carriers and were not under supervision of the Railroad Commission, was not subject to tax, notwithstanding provision of statute making operator not having certificate of public convenience and necessity liable for tax, and authorizing auditor to prescribe regulations for ascertaining liability for tax and for collection thereof (Laws 1934, c. 126, sec. 1, subsec. 12(c), secs. 3, 4, 5(3), 13, 15, 16).
2. STATUTES.
The legislative intent must be ascertained from all the provisions of a statute.
3. AUTOMOBILES.
Under statute imposing tax for use of highways, provision that operator not having certificate of public convenience and necessity shall nevertheless be taxed, and that auditor shall prescribe regulations for ascertaining liability for tax and for collection thereof, empowers auditor to make regulations as respects methods of ascertaining amount of tax found in other provisions, but not to impose liability not imposed by the statute as a whole (Laws 1934, c. 126, secs. 13, 15, 16.)
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
W.W. Pierce, Assistant Attorney-General, for appellant.
We are cognizant of the burden we have assumed in prosecuting this appeal to this court. This is the seventh time we have appeared in this court in cases wherein the right to collect taxes levied and imposed by the statute involved in this case has been in controversy. The cases to which we refer as having heretofore dealt with the statute are:
Hudson v. Stuart, 166 Miss. 339; State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526; Price v. Haney, 174 Miss. 176; Price v. Haney, 165 So. 815; State ex rel. Rice v. City Bus Co., Inc., 176 Miss. 597; State ex rel. Rice v. Hasson Grocery Co., 177 Miss. 204.
In all of the cases above mentioned, there was involved the right to collect motor vehicle taxes levied by Chapter 135 of the General Laws of Mississippi, 1932, and Chapter 126 of the General Laws of Mississippi, 1934. The 1934 act was a reenactment of the 1932 act without material change insofar as the taxes involved in this controversy is concerned.
The appellee is liable for the taxes levied by Section 5 of Chapter 126 of the General Laws of Mississippi 1934, and by reason thereof is not entitled to recover from the state auditor the taxes paid under protest and for which this action was brought.
Our contentions, we submit, are (a) that under the provisions of Chapter 126 of the General Laws of Mississippi 1934 each of the vehicles operated by appellee is a "bus;" (b) that each of these busses is a "commercial motor vehicle;" (c) that the appellee is an "operator" within the meaning of this statute; (d) that appellee is a "common carrier by motor vehicle;" (e) that it operates on the "public highway" within the meaning of this act; (f) that it is "engaged in the business of carrying passengers for hire;" (g) that the only vehicles not taxed by Chapter 126 of the General Laws of Mississippi 1934, or, in other words, the only vehicles that are exempt from the provisions of the act by reason of not being included therein for the purpose of taxation are "road rollers, street sprinklers, fire engines, fire department apparatus, police patrol wagons and locomotives or cars operated on rails or tracks." Those vehicles being excepted from the act in sub-section (19) of Section 1 of Chapter 126 of the Laws of 1934; and (h) those vehicles or operators mentioned in Chapter 183 of the General Laws of Mississippi, to-wit: municipalities, levee district board or drainage district; (i) that it matters not whether appellee has a certificate of public necessity and convenience from the Railroad Commission, neither does it matter that its vehicles are used in lieu of street cars.
In order to demonstrate the correctness of our contentions, we direct the court's attention to Section 1 of the act. This section is a series of definitions for the purposes of the act. The Legislature having defined certain words and phrases, the legislative definition is controlling and binding on the court.
Mathiston v. Brister, 166 Miss. 67.
Sub-section (3) of Section 1 of the act defines the word "bus" to mean any motor vehicles designed for carrying passengers, except a school bus used exclusively as such, and engaged in the business of carrying passengers for hire.
In sub-section (11) of Section 1 of the act, the term "common carrier by motor vehicle" is defined to include any common carrier of person and any common carrier of property operating one or more motor vehicles for compensation over fixed routes or between fixed terminis. Therefore, since the agreed statement of facts stipulates that the appellee operates on a regular schedule and over a regular and fixed route, and between fixed termini and transports all persons who present themselves for transportation and pay the fare required of them, from point to point on its route, or routes, there can be no argument that the appellee is not a common carrier as defined by the act.
In sub-section (9) of Section 1 of Chapter 126, Laws of 1934, the term "public highway" is defined to include public roads, highways, streets and bridges in this state.
State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526.
We think it clear that appellee is an operator; that each of its vehicles is a bus; that each bus is a commercial motor vehicle; that it operates on the public highway; that it is a common carrier and engaged in the business of carrying passengers for hire within the meaning of Chapter 126 of the Laws of 1934. Under the agreed statement of facts the appellee comes within the definitions of sub-sections (1), (3), (5), (9) and (11) of Section 1 of the act.
But it was argued in the trial court, and we assume it will be argued here, that by inserting the parenthetical clause (except as provided in Section 1 hereof) in Section 3 of the act, it was intended by the Legislature that appellee's operations were not to be taxed. We submit that the parenthetical clause is given its full meaning by reference to sub-section (1) of Section 1 of the act wherein it is provided that the term "motor vehicles" shall not include any road rollers, street sprinklers, fire engines, fire department apparatus, police patrol wagons and locomotives or cars operated on rails or tracks. The vehicles just mentioned were not included in the act and, hence, not taxable under the act, from which it is made clear by the parenthetical clause that those vehicles not included in the act were not taxed for the use of the highways.
The question now before the court is here for the first time. The only case which remotely touches the question now under consideration is the case of State ex rel. Rice v. City Bus Company, 176 Miss. 595.
We do not think it will be seriously argued that the appellee is not an operator under the provisions of Chapter 126 of the Laws of 1934.
Section 17 of the act requires every operator within the provisions of the act to file with the Auditor of Public Accounts on or before the tenth day of each month a report and, among other things, there is required to be given the actual miles of public highway of the state traveled during the preceding calendar month by each motor vehicle. The appellee being an operator of motor vehicles for hire, and a common carrier of persons, failure of the State Auditor to make actual demand for the tax, would not create an exemption.
The court is not empowered to make a new law by judicial construction, and create an exemption from the tax by a construction of Section 1 of the Act to permit an exemption, where none can be found therein, clearly expressed.
Abbott v. State, 106 Miss. 340; Holly Springs v. Marshall Company, 104 Miss. 752; Prather v. Googe, 108 Miss. 670.
There are no express words in the entire act granting an exemption to appellee. The court should not conclude that this has been done by implication.
A motor vehicle operator claiming an exemption from payment of taxes imposed by Chapter 126 of the Laws of 1934 must affirmatively show an exemption expressly declared in the statute; and that such operator is clearly within the terms of the statute, providing for the exemption.
Y. M.V.R.R. Co. v. Adams, 180 U.S. 1, 45 L.Ed. 385, 77 Miss. 194.
There is no principle of law better settled by this court than that a statute under which an exemption is claimed to exist, the right to the exemption must be clearly expressed in the statute, and the claimant must come clearly within the terms of the statute.
Morris Ice Co. v. Adams, 75 Miss. 410; Barnes v. Jones, 139 Miss. 675; New Standard Club v. McGowan, 111 Miss. 92; Bd. of Suprs. v. Merck Alston, 153 Miss. 346; Adams v. R.R. Co., 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 395.
Exemption from taxation will never be presumed. This court cannot presume that the appellee is exempt from payment of mileage taxes.
Morris Ice Co. v. Adams, 75 Miss. 410; Bd. of Suprs. v. Merck Alston, 153 Miss. 346; Gulfport Building Loan Assn. v. City of Gulfport, 155 Miss. 498; R.R. Co. v. Adams, 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 395; Magnolia Building Loan Assn. v. Miller, 128 So. 585, 282 U.S. 803, 75 L.Ed. 722.
The claim of an exemption from taxation should never be enlarged by construction.
Barnes v. Jones, 139 Miss. 675; Bd. of Suprs. v. Merck Alston, 153 Miss. 346; Building Loan Assn. v. City of Gulfport, 155 Miss. 498; Leaf Hotel Corp. v. City of Hattiesburg, 168 Miss. 304; Teche Lines v. Bd. of Suprs., Forrest County, 165 Miss. 594; Building Loan Assn. v. Miller, 128 So. 585, 282 U.S. 803, 75 Fed. 722.
A statute under which the right to an exemption is claimed to exist must be strictly construed against would-be exemptionists; and if the right to the exemption clearly remains in doubt the claim must be denied.
New Standard Club v. McGowan, 111 Miss. 92; Greenville Ice Co. v. City of Greenville, 69 Miss. 86; Brick Lumber Co. v. Miller, 123 Miss. 850; Adams Co. v. National Box Co., 125 Miss. 598; Barnes v. Jones, 139 Miss. 675; Board of Supervisors v. Merck Alston, 153 Miss. 346; Building Loan Assn. v. City of Gulfport, 155 Miss. 498; Leaf Hotel Corp. v. Hattiesburg, 168 Miss. 304.
The tax paid by appellee was not an unconstitutional exaction for the use of the highways.
State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526, 296 U.S. 663, 80 L.Ed. 473.
Green, Green Jackson, of Jackson, for appellee.
Appellee is not liable for mileage tax because impliedly and properly so held in Auditor v. City Bus Company, 176 Miss. 597, 169 So. 774.
The tax having been paid under protest, may be recovered back, if illegal.
Section 3276, Code of 1930; Miss. Central R. Co. v. Hattiesburg, 141 So. 897, 163 Miss. 311.
The Attorney General's chief point was rejected definitely in the City Bus case, namely, that the parenthetical clause in Section 3 had an express reference to an exempting provision found in Section 1. School busses, street sprinklers and the like were put outside of the act when they were said to be neither busses nor motor vehicles and trucks and busses are the vehicles that are taxed with mileage, and this contention, with deference, of the Attorney General is absolutely without foundation.
As admitted by the court, the words for construction are "except as provided in Section 1 hereof." These words are express and unambiguous. The court cannot restrict or enlarge their meaning.
City of Hazlehurst v. Mayes, 51 So. 890; Mississippi Digest, Key No. 174.
In construing a statute, the court must seek the legislative intent from the statute as a whole. Key No. 205. If the language be ambiguous, the legislative intent judicially to be ascertained must be gathered from all of the provisions of the statute.
Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Gresser v. Hathorn, 144 Miss. 24, 109 So. 23.
Effect must be given to all provisions.
McKenzie v. Boykin, 111 Miss. 256, 71 So. 382.
The court cannot find in Section 1 immunity by express words for a class (having rejected Section 12 (a) to (e) in the City Bus case) and the only class potentially immune includes the appellee. This court is obligated to follow, when ascertained, the legislative will.
Kennington v. Hemingway, 57 So. 809, 101 Miss. 259, 39 L.R.A. (N.S.) 541; 59 C.J. 1033.
The exaction of this tax would be double taxation, and this statute is to be construed, if possible, to avoid such.
Hudson v. Stewart, 166 Miss. 339, 145 So. 611.
All doubts in taxing statutes are resolved in favor of the taxpayer.
Gould v. Gould, 245 U.S. 151, 62 L.Ed. 211; Frazer v. Stone, 171 Miss. 56, 156 So. 596; Pan American Petroleum Corp. v. Miller, 154 Miss. 565, 122 So. 393; Gully v. Alexander, 171 Miss. 567, 158 So. 201; Middleton v. Lincoln County, 84 So. 908, 122 Miss. 673; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Furniture Co. v. Tax Commission, 133 So. 652, 160 Miss. 185; Town of Utica v. State, 148 So. 635, 166 Miss. 565; State v. Grenada Compress Co., 123 Miss. 191, 85 So. 139; State v. Union Tank-Car Co., 119 So. 312, 151 Miss. 797.
As to city streets, the several municipalities are vested with, during the time of their controversy, by Section 2414 of the Code, "full jurisdiction in the matter of streets . . . to open and lay out and construct the same; to repair, maintain, pave, sprinkle, adorn and light the same." And likewise, by Section 2399, vested with power "to provide for and regulate the construction and passage of railways and street railroads through the streets, avenues, alleys . . . but a person or company to whom the right and privilege shall, at any time be granted, by the authorities of a city . . . shall not have the exclusive privilege to do so." In dealing with matters of this character, the power of the municipality is very great.
Scott v. Hart, 128 Miss. 353, 91 So. 17; Edwards Hotel, etc. v. City of Jackson, 51 So. 802, 96 Miss. 547; 44 C.J. 508-532; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 908.
The revenue laws are construed favorably to the citizen and taxpayer, and the court will not place a construction that will impose double taxation upon the citizen unless the language is plain.
State v. Simmons, 70 Miss. 485, 12 So. 477; Vicksburg, etc., Ry. Co. v. State, 62 Miss. 105; Wilby v. State 93 Miss. 767, 47 So. 465, 23 L.R.A. (N.S.) 677; Tennessee v. Whitworth, 117 U.S. 129, 29 L.Ed. 830; 61 C.J. 139.
Imposition would impair obligation of appellee's contract.
G. S.I.R. v. Adams, 90 Miss. 559, 45 So. 93; Stone v. R. Com., 62 Miss. 607; Stone v. Farmers Loan Tr. Co., 116 U.S. 307, 29 L.Ed. 636; Vicksburg Water Works v. Vicksburg, 185 U.S. 65, 202 U.S. 453, 50 L.Ed. 1102, 206 U.S. 496, 51 L.Ed. 1155.
Departmental construction with subsequent reenactment of the statute gives immunity.
Miss. Cottonseed Products Co. v. Sheldon, 81 F.2d 169, 297 U.S. 721, 80 L.Ed. 1005; Continental Baking Co. v. Woodring, 55 F.2d 350, 286 U.S. 352, 76 L.Ed. 1155; State v. Kozer, 116 Or. 581, 242 P. 621; White v. Miller, 160 Miss. 734, 133 So. 146; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Robertson v. Gulf Oil Co., 106 So. 451; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407.
In the Attorney General's analysis of the City Bus case, he overlooks, with deference, the declaration which is a decision, "It seems from the parenthetical clause of Section 3 . . . that the draftsman . . . intended to exclude some carriers using the public highways . . . but when we turn to Section 1, to which the parenthetical clause refers, no words which therein appear, by themselves alone, suggest such an exemption." Counsel overlook this declaration, "by themselves alone." Counsel, with deference, is inaccurate in stating that "the question now before the court is here for the first time." This precise contention was before the court in the City Bus case and was decided therein adversely to the Attorney General, for, if his contention presently made is correct, the decision that "by themselves alone" there was an exemption, is erroneous.
Argued orally by W.W. Pierce for appellant and by Garner Green for appellee.
The Mississippi Power Light Company, appellee here, brought an action at law against Joe S. Price, auditor of public accounts of the state of Mississippi, by which it sought to recover $1,052.92 paid under protest by it to the auditor, and the refusal of the auditor upon demand within due time to refund the amount to the plaintiff. When Price retired as auditor, the suit was revived against his successor, Carl Craig, who pleaded the general issue. The case was tried upon an agreed statement of facts, upon which the court below entered its judgment in favor of the Mississippi Power Light Company, appellee here, in the amount sued for; and the auditor appealed to this court.
We deem it unnecessary to set out, in extenso, the agreed statement of facts. The amount of the tax paid, it is agreed, was the correct amount; it was paid to the auditor (under protest) under chapter 126, Laws 1934. It was agreed that the appellee operated busses in lieu of street cars, entirely within the municipalities of Jackson, Greenville, and Vicksburg, in this state. Its busses were operated on the public streets of these municipalities between fixed termini, carrying passengers for hire, in lieu of street cars, as stated above. The busses in these municipalities had theretofore been substituted for such street cars, and operated in lieu thereof, at various times unnecessary to detail. By the agreement it is clear that these busses were not operated in these municipalities as permit carriers, neither were they under the supervision of the State Railroad Commission; and their operation was entirely urban, not extending beyond the city limits.
There was no dispute as to the amount involved, nor of the fact that, if the controlling statute does not impose the tax upon the appellee, it was entitled to recover the amount sued for. It was the precise contention of the appellee in the court below that in the case of State v. City Bus Co., 176 Miss. 597, 169 So. 774, 777, this court held, impliedly and properly, that the appellee was not liable for the tax collected from it under protest by the state auditor.
There were other contentions, unnecessary to state, in view of the conclusion we have reached. A very full analysis of the applicable sections of chapter 126, Laws 1934, is to be found in the opinions in State v. City Bus Co., supra, so we shall not undertake again to analyze the sections, except in so far as may be necessary to make clear, and amplify what is therein stated.
In the City Bus Company Case it appeared that the corporation operated motor vehicles on the public streets of Biloxi, Gulfport, Long Beach, and Pass Christian, and also on public highways of the state outside and between these municipalities; that the busses were operated in lieu of street cars in and between the several municipalities.
In that case it was the contention of the bus company that under subsection 12 (c) of section 1 it, as an operator of busses for hire, was excluded from the tax imposed in the other sections of the statute, subsection (c) being as follows: "Motor vehicles used in lieu of street cars in or between municipalities, or by a hotel exclusively for its patrons and employees, operation not exceeding fifteen miles distant from such hotel, and taxicabs within the city limits of a municipality, or not exceeding three miles therefrom." We had then before us a case in which motor vehicles were operated between fixed termini, both within and without municipalities, the operators being subject to the supervision of the State Railroad Commission. We have now before us an operator of motor vehicles used in lieu of street cars in municipalities, and not subject to the supervision of the State Railroad Commission.
In the City Bus Company Case we reached the conclusion that the operator there was subject to the tax, because under sections 15 and 16 of the act the Legislature had definitely fixed a method by which to ascertain the amount of tax to be collected from that class of motor vehicle operators; that, although the Legislature clearly intended to exempt certain carriers using the public highway from liability for the privilege tax imposed by the act, when we turn to section 1, to which the parenthetical clause refers, no words therein, considered alone, suggest such an exception.
We again cite the applicable portion of section 3: "Every operator using the public highways of the state ( except as provided in section 1 hereof) shall pay as herein provided," etc. (Italic ours.)
Section 4 levies a flat privilege tax per annum upon commercial motor vehicles, measured by weight and horsepower. By section 5, subsec. 3, a mileage tax was imposed on, "each bus engaged in the business of transporting passengers for hire over the public highways of the state, whether loaded or empty, in addition to the weight and horsepower tax imposed, for each mile of public highway in the state traversed by such vehicle, the following amount shall be paid."
In the City Bus Company Case the court decided that section 1, subsec. 12 (c), did not exclude the operator there under consideration, for the reason that by sections 15 and 16 the Legislature evinced its intention to tax that operator on its busses, clearly outlining the method by which to ascertain and measure such tax. The court there said: "It seems from the parenthetical clause of section 3 — 'except as provided in section 1 hereof' — that the draftsman of the act intended to exclude some carriers using the public highways from liability for the privilege tax which the act then proceeds to impose; but when we turn to section 1, to which the parenthetical clause refers, no words which therein appear, by themselves alone, suggest such an exception. . . . Nothing herein said must, or can reasonably, be construed as an intimation that carriers who are neither permit carriers nor common carriers within the provision of the second paragraph of section 15 are subject to the tax here imposed. What we have in effect said is that the statute provides no method of ascertaining the mileage of their vehicles, from which it may follow that the draftsman of the statute accomplished his purpose (set forth in the parenthetical clause of section 3) of excepting some carriers from the tax imposed, a question not now before us and on which we express no opinion."
The appellee in this case is in a different situation and class. Applying the rule announced in the City Bus Company Case, and considering all the sections of the chapter together, it is quite clear that the Legislature intended to exclude from levy of the mileage privilege tax here involved some of the carriers using the public highways. By sections 15 and 16 it is clear that the Legislature imposed the privilege tax upon special permit carriers, and (1) provided the method of ascertaining the amount of tax by requiring the use of speedometers; and (2) that it so provided as to common carriers of passengers for hire on the public highways and streets, both in and between municipalities, for the reason that they were subject to the supervision of the State Railroad Commission, and the mileage of its motor vehicles should be determined by the records or data supplied by the State Highway Commission.
The common carriers involved in the present case are not within either of these classes, and we are of the opinion, from a re-examination of the whole chapter, that no mode of establishing their liability is to be found therein.
In making the above statement, we have not overlooked the contention of the Attorney-General that by section 13 of the chapter the common carrier here involved is rendered subject to the tax. That section is as follows: "The state railroad commission shall continue to exercise all jurisdiction as now provided by law for granting certificates to and supervising operators of busses and trucks for hire as common carriers over the highways of this state. Any operator not having a certificate of public convenience and necessity from the Mississippi railroad commission shall nevertheless be taxed for the use of the highways, and the auditor of public accounts shall prescribe rules and regulations not inconsistent with this act under which the liability for the tax may be ascertained and the collection of it made, and may prescribe rules and regulations under which any operator may pay the tax monthly as hereinafter provided."
We conceive it to be the contention of the Attorney-General that, because the auditor may prescribe rules and regulations under which liability for the tax may be ascertained, therefore the carrier appellee here, is not excepted by the subsection in section 3. If we should lift said section 13 from the entire act, without any consideration or emphasis being given to the exception stated in section 3, there might be substantial ground for argument. The word "except" as provided in section 1 of the chapter, as pointed out in the City Bus Company Case, cannot be eliminated therefrom; and neither can the intention of the Legislature to exempt some carriers be ignored or nullified by placing undue emphasis upon the power granted the auditor to make rules and regulations. We must ascertain the legislative intent from all the provisions of the statute. See Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Dresser v. Hathorn, 144 Miss. 24, 109 So. 23; McKenzie v. Boykin, 111 Miss. 256, 71 So. 382; City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A., (N.S.) 541, Ann. Cas. 1914B, 392.
Investing the auditor with power to make rules and regulations, not inconsistent with the act, for ascertaining the amount of mileage tax due is one thing, and the imposition of such tax by him is another. According to the opinion as expressed in the City Bus Company Case, this particular section means that the auditor was empowered to make rules and regulations with reference to the two methods of ascertaining the amount of tax found in sections 15 and 16, but not to impose liability which was not imposed by the statute as a whole. It is quite evident that rules and regulations might be necessary to the speedometer method and likewise to the manner of ascertaining and reporting the amount to the auditor by the common carrier, operating under the supervision of the Railroad Commission. It is evident that many things would be taken into consideration where the carrier was operating upon the various highways of the state. We therefore conclude that section 13 did not extend and impose any other and different liability, so as to include carriers which, in our opinion, the Legislature intended to exclude.
In the light of subsequent legislation in 1936, excluding the carrier here involved, we feel satisfied that we have correctly announced the intention of the Legislature in the City Bus Company Case, and in the case now before us; not that the subsequent legislation excluding this carrier would be properly considered by us as an aid to the construction of the statute. It is quite clear, as announced in the former case, that the Legislature intended to except some carriers from the mileage tax imposed by it.
We are of the opinion that the Legislature did not in express terms impose the liability, in the light of sections 15 and 16, and 3, and section 1, subsec. 12(c).
We cannot determine with certainty any method by which, according to legislative will, the tax should be measured as to the common carrier here involved, nor do we know how the common carrier and the auditor arrived at the amount which was paid in this case. In the City Bus Company Case we could determine with certainty that the operator there was taxed, because the Legislature clearly defined how the tax should be imposed. In the case now before us it has not done so. We have therefore reached the conclusion that no tax was imposed upon the appellee, and that the judgment of the court below should be approved by this court.
Affirmed.