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Craig v. Stone

Supreme Court of Mississippi, In Banc
Jan 18, 1943
11 So. 2d 433 (Miss. 1943)

Opinion

No. 35244.

January 18, 1943.

1. TAXATION.

State Tax Collector has only such powers as are conferred upon him by statute.

2. MANDAMUS.

Statutory authority of State Tax Collector to interpose in the making of assessments applies only to ad valorem taxes, and hence did not authorize maintenance by collector of mandamus action to compel State Tax Commissioner to make back assessments of privilege taxes on pipe line (Code 1930, secs. 6991, 6992; Laws 1935, Ex. Sess., chap. 20, sec. 180).

3. MANDAMUS.

Ascertaining taxable units of pipe line for privilege tax purposes is an essential step toward assessment, and hence State Tax Collector could not maintain mandamus action to compel State Tax Commissioner to ascertain such units (Code 1930, secs. 6991, 6992; Laws 1935, Ex. Sess., chap. 20, sec. 180).

4. TAXATION.

Except as provided in statutes authorizing State Tax Collector to interpose in the making of ad valorem tax assessments, Collector has no authority save as to past due obligations (Code 1930, secs. 6986, 6991, 6992).

APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.

Alexander Satterfield and Forrest B. Jackson, all of Jackson, for appellant.

Does the State Tax Collector have the right to maintain a petition for a writ of mandamus against another state officer, or tax collecting body or official, upon his or its refusal to act, whereby the State Tax Collector is prevented from performing his official duties and prevented from collecting the individual compensation of himself and his deputies, amounting to twenty percent of the taxes involved?

Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; Gulley v. Denkmann Lumber Co. et al., 177 Miss. 164, 170 So. 151; Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808; White v. Miller, 159 Miss. 598, 599, 132 So. 745; Miller v. White, 157 Miss. 114, 126 So. 833; State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566; Swann v. Buck, 40 Miss. 268, 288; White v. Miller, 159 Miss. 49, 132 So. 79; White v. Miller, 162 Miss. 296, 139 So. 611; Adams, State Revenue Agent, v. City of Clarksdale, 95 Miss. 88, 48 So. 242; Code of 1930, Secs. 2348, 6999, 7180, 7182; 34 Am. Jur. 981, pars. 213-214; 38 C.J. 772, par. 415; 38 C.J. 836; 13 Encyclopedia of Pleading Practice 627.

If the State Tax Collector has the authority to file a petition for writ of mandamus under the circumstances stated in the first question, is the present suit an attempt to require the State Tax Commissioner to exercise his discretion in a certain way or simply an attempt to require him to act and to perform duties enjoined upon him by the statute?

City of Clarksdale v. Harris, 188 Miss. 806, 816, 196 So. 647; Loeb, Inc., v. Board of Trustees of Pearl River Junior College, 171 Miss. 467, 158 So. 333; Taylor et al., County Supervisors, v. State, 121 Miss. 771, 83 So. 810; Thomas v. Price, 171 Miss. 450, 456, 158 So. 206; Huidekoper v. Hadley, 100 C.C.A. 396, 117 F. 1, 40 L.R.A. (N.S.) 505; 4 Cooley on Taxation 3180, par 1600.

Assuming that mandamus is a proper remedy in this case, does the State Tax Collector have the right to enforce the collection of privilege taxes by proper judicial proceedings?

Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883; Craig v. Columbus G.R. Co., 192 Miss. 461, 5 So.2d 681; Dukate v. Adams, 101 Miss. 433, 58 So. 475; Dunn Construction Co. v. Craig, 191 Miss. 682, 2 So.2d 166; Enochs v. State, 128 Miss. 361, 91 So. 20; Gully v. Matthews, 179 Miss. 579, 176 So. 277; Gully v. Lumbermen's Casualty Co., 176 Miss. 388, 166 So. 541; Gully v. Williams Brothers, 182 Miss. 119, 180 So. 400; McClellan v. Gully, 172 Miss. 431, 160 So. 567; Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318; State v. Piazza, 66 Miss. 426, 6 So. 316; Code of 1906, Sec. 2250 (5014 Hemingway's Code); Code of 1906, Sec. 2554 (5018 Hemingway's Code); Laws of 1934, Ch. 119, "Sales Tax Act"; Laws of 1935, Ch. 20, Sec. 240; Laws of 1935, Sec. 246.

Does the State Tax Commissioner have authority to proceed with the ascertainment of the units and the calculation of the tax at this time?

Adams v. Railroad Co., 85 Miss. 772, 38 So. 348; Laws of 1935, Secs. 181, 182, Ch. 20; Laws of 1935, Sec. 184.

The State Tax Collector has a right to maintain a petition for mandamus against the State Tax Commissioner upon his refusal to take one of the steps precedent to the final collection of a past due tax.

Adams v. Greenville, 7 Miss. 881, 27 So. 990; Adams v. Kuykendall, supra; Craig, State Tax Collector, v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230; Enochs v. State, supra; Hattiesburg Grocery Co. v. Roberson, 126 Miss. 34, 88 So. 4; Laws of 1894, Ch. 34.

J.H. Sumrall, of Jackson, for appellee, A.H. Stone, Commissioner.

In view of the fact that the defendant, A.H. Stone, Commissioner, is a state officer, and for that reason necessarily is interested only in the proper administration of the laws which require administration by him, it would be unseemly for him to take any position that would indicate his preference as to the ultimate outcome of any litigation involving the right of the state to recover taxes. But in his desire to administer properly the laws confided to his authority, he necessarily desires all the aid and counsel from the courts of the state in determining the proper procedure imposed on him by any statute. He therefore declines to raise, individually, any legal objection to the right of any court of the state to determine in its own discretion any advisory conclusion as to the propriety of any action taken by him in his efforts to perform fully his duties under the law.

Since every question to be decided by the court, before reaching a final conclusion in this case, has been presented in the able briefs filed by representatives of the Southern Natural Gas Company and the Interstate Natural Gas Company, the Commissioner deems this presentation of all questions that the court might be called upon to consider as sufficiently presented, and that said presentation relieves the defendant Commissioner from any responsibility or necessity for individually presenting any of said questions, since his attitude is necessarily that of acquiescence in any conclusion that may be reached by the Supreme Court of Mississippi, whose duty it is to serve the State of Mississippi and its interests, exclusively, the same as the duty devolving upon said Commissioner.

R.H. J.H. Thompson and Fulton Thompson, all of Jackson, and Cabaniss Johnston, of Birmingham, Ala., amicus curiae.

The State Tax Collector was not authorized to institute, and is not authorized to maintain, this action.

Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808; State ex rel. Trahan v. Price, State Auditor, 168 Miss. 818, 151 So. 566; Madison County v. State Highway Commission, 191 Miss. 192, 198 So. 284; Dunn Construction Co. v. Craig, State Tax Collector, 191 Miss. 682, 2 So.2d 166; Craig, State Tax Collector, v. Columbus Greenville R. Co., 192 Miss. 461, 5 So.2d 681; Craig, State Tax Collector, v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230; Enochs v. State, 128 Miss. 361, 91 So. 20; Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4; State v. Piazza, 66 Miss. 426, 6 So. 316; Gully v. Lumbermen's Casualty Co., 176 Miss. 388, 166 So. 541; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Adams, State Revenue Agent, v. Kuykendall, 83 Miss. 571, 35 So. 830; Code of 1930, Sec. 2348; 1 C.J. 982, 988.

The writ of mandamus will not issue if in ultimate effect it will be nugatory as, for instance, where the act sought to be required is impossible of performance.

Overstreet v. Lord, 160 Miss. 444, 134 So. 169; Attala County v. Grant, 9 Smedes M. 77, 47 Am. Dec. 102; Board of Education v. West Point, 50 Miss. 638; Wood, Secretary of State, v. State, ex rel. Gillespie, District Attorney, 169 Miss. 790, 142 So. 747; Beaman v. Board of Police of Leake County, 42 Miss. 237; Swann, Auditor, v. Buck, District Attorney, 40 Miss. 268; United States v. Lamont, 155 U.S. 303, 39 L.Ed. 160; Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861.

The writ of mandamus, when directed to a public officer, must be for the enforcement of performance of a mere ministerial act not involving on the part of the officer the exercise of judgment or discretion.

Swann, Auditor, v. Buck, District Attorney, supra; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; United States v. Lamont, supra.

Green Green, of Jackson, Maxwell Bramlette, of Woodville, Canada, Russell Turner, of Memphis, Tenn., and Wm. A. Dougherty, of New York, N.Y., amicus curiae.

There is no official right in the State Tax Collector for an alleged unassessed privilege tax to compel action by the State Tax Commissioner to whose discretion the state committed the matter of assessment.

Craig, State Tax Collector, v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230; Gulf S.I.R. Co. v. Adams, 83 Miss. 306, 36 So. 144, 85 Miss. 772, 38 So. 348; Yazoo M.V.R. Co. v. Adams, 83 Miss. 306, 36 So. 144, 85 Miss. 772, 38 So. 348; Gulf S.I.R. Co. v. Adams, 90 Miss. 559, 607, 45 So. 91; Johnston v. Reeves, 112 Miss. 227, 72 So. 925; State v. McPhail, 182 Miss. 360, 180 So. 387; Craig v. Columbus G.R. Co., 192 Miss. 461, 5 So.2d 681; Dunn Construction Co. v. Craig, 191 Miss. 682, 2 So.2d 166; Craig v. Standard Oil Co. (Miss.), 2 So.2d 558; Enochs v. State, 128 Miss. 361, 91 So. 20, 22; Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4, 7; Thompson v. Kreutzer, 103 Miss. 388, 60 So. 334; State v. Piazza, 66 Miss. 426, 6 So. 316; Gully, State Tax Collector, v. Stewart, 178 Miss. 758, 174 So. 559; Adams, State Revenue Agent, v. Tonella, 70 Miss. 701, 14 So. 17; City of Biloxi v. Gully, State Tax Collector, 187 Miss. 664, 193 So. 786; Malouf v. Gully, 187 Miss. 331, 192 So. 2; Miller v. Coahoma County, 157 Miss. 404, 128 So. 348; Gully, State Tax Collector, v. Copiah County, 167 Miss. 562, 147 So. 300; Mississippi Railroad Commission v. Western Union Tel. Co., 107 Miss. 442, 65 So. 505; Code of 1930, Secs. 6986, 6988, 6989, 6990, 6991, 6992.

There is no individual right in the State Tax Collector for an alleged unassessed privilege tax to compel action by the State Tax Commissioner to whose discretion the state committed the matter of assessment.

Biloxi v. Gully, State Tax Collector, supra; Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 698; Miller v. White, 157 Miss. 114, 126 So. 833; White, Auditor, v. Miller, State Tax Collector, 159 Miss. 598, 132 So. 745, 162 Miss. 296, 139 So. 611; Biloxi v. Gully, State Tax Collector, 182 Miss. 723, 180 So. 821; Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318.

There is no right under the circumstances of this cause to issue mandamus where the assessment has not been made by the officer vested with plenary power thereover.

Mandamus is not allowable in a case affecting the public interest as to an unassessed alleged tax liability.

Adams v. Greenville, 77 Miss. 881, 27 So. 990; Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; Adams v. Luce, 87 Miss. 220, 39 So. 418; Long Bell Lumber Co. v. McLendon, 127 Miss. 636, 90 So. 356; Adams v. Ducate, 86 Miss. 276, 38 So. 497.

Compare Morris Ice Co. v. Adams, 75 Miss. 410, 22 So. 944, expressly approved, Adams v. Kuykendall, supra, and other decisions contra, construing Sec. 100 of the Constitution; Jackson Electric Ry. Light Power Co. v. Adams, 79 Miss. 408, 30 So. 694.

Mandamus is regulated by statute, and in matters affecting the public interest the action must be brought on petition of the state by its Attorney-General or a district attorney.

State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566; Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808; Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284.

While a judicial officer, or one exercising a judicial or discretionary authority, may be compelled to proceed in the performance of duty, he cannot be coerced in his judgment or compelled to exercise his discretion in a particular manner by means of this writ.

4 Cooley on Taxation 3180, par. 1600.

Argued orally by John C. Satterfield and Jas. A. Alexander, for appellant, and by J.H. Thompson and Garner Green, amicus curiae.


This is the second appearance here of this cause of action although not exactly the same case. The ultimate purpose, however, is the same. Craig, State Tax Collector, v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230, which by reference is made a part of this opinion. In that case the State Tax Collector brought suit against the Gas Company to recover past due privilege taxes on its pipe lines in this state for the years 1936 to 1940, inclusive, under Section 180, Chapter 20, Laws of 1935, Ex. Sess. The case went off on demurrer. The questions raised by the demurrer were whether the State Tax Collector had a right to maintain the suit and whether there was any liability on the part of the Gas Company for the tax until there had been an assessment of the pipe line units by the State Tax Commissioner as provided by the statute. The court held that the suit could not be maintained because there had been no such assessment and pretermitted the decision of the other question. Thereupon the State Tax Collector brought the present action in the circuit court seeking mandamus to force the Tax Commissioner to make the necessary assessment. The trial court held that the Tax Collector had no authority to maintain the suit. We have reached the same conclusion upon the following considerations:

The State Tax Collector must find his powers in the statutes; he has none other. He confesses that he is unable to proceed under Section 6986, Code of 1930, because no assessment has been made and that therefore there is no accrued debt or obligation, as was held in the cited opinion.

His authority to interpose in the making of assessments is found in two sections only. The first is Section 6991, Code 1930, but this section plainly has reference only to ad valorem assessments, as has been held by the court in State Revenue Agent v. Tonella, 70 Miss. 701, 14 So. 17, 22 L.R.A. 346. The other section is Section 6992, Code 1930, but this section mentions only a tax on property, and it was held in Yazoo M.V. Railroad v. Adams, 85 Miss. 772, 38 So. 348, that the section dealt only with ad valorem taxes and had no application to back assessments of privilege taxes. See particularly pages 797 to 799 of that report [38 So. 350, 351]. Since these decisions both sections have been reenacted without any substantial change in language.

Appellant replies, as we understand it, to the point set forth in the foregoing paragraph with the argument that he is not demanding that the Tax Commissioner assess the property but only that he ascertain the taxable units, which when done, the law itself makes the assessment. Even so, that is one of the essential steps toward the assessment, and no statute whatever, expressly or by implication, authorizes the State Tax Collector to interfere in the taking of any of those preliminary steps. Except under Sections 6991 and 6992, Code 1930, the tax collector has no authority save as to past due obligations. The tax here demanded is not due as we held in the opinion first cited, and the two sections last mentioned have no application, as we have already shown.

This is enough to dispose of the present case without going into the numerous other questions discussed.

Affirmed.

Alexander, J., took no part in this decision.


Summaries of

Craig v. Stone

Supreme Court of Mississippi, In Banc
Jan 18, 1943
11 So. 2d 433 (Miss. 1943)
Case details for

Craig v. Stone

Case Details

Full title:CRAIG, STATE TAX COLLECTOR, v. STONE, STATE TAX COMMISSIONER, et al

Court:Supreme Court of Mississippi, In Banc

Date published: Jan 18, 1943

Citations

11 So. 2d 433 (Miss. 1943)
11 So. 2d 433

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