Opinion
No. 30419.
February 13, 1933.
1. STATUTES.
Section of statute imposing privilege tax upon persons selling tractors "and/or road machinery" held ambiguous, authorizing resort to heading, "Road Machinery Dealers," to ascertain its meaning (Laws 1930, chapter 88, section 171).
2. STATUTES.
Constitutional requirement that title "ought" clearly to indicate subject-matter of proposed legislation held directory, not mandatory (Constitution 1890, section 71).
3. STATUTES.
Headings to various sections of privilege tax statute are not strictly titles or subtitles, but lead lines which are part of statute itself (Laws 1930, chapter 88; Constitution 1890, section 71).
4. LICENSES.
Privilege tax law section carrying heading "Road Machinery Dealers," and taxing persons selling "tractors and/or road machinery," held not to impose tax on persons selling farm tractors, since intended to reach only road machinery dealers selling road construction machinery (Laws 1930, chapter 88, section 171).
5. STATUTES.
Tax laws are to be strictly construed against taxing power, which cannot be implied, and all doubts must be resolved in taxpayer's favor.
6. STATUTES.
In construing tax statute, construction put upon it by state tax commission is persuasive.
7. STATUTES.
Legislature, when re-enacting statute, is presumed to know and adopt construction placed thereon by state tax commission (Laws 1930, chapter 88, section 171; Laws 1932, chapter 89, section 180).
APPEAL from circuit court of Hinds county. HON.W.H. POTTER, J.
G.R. Nobles and W.H. Hughes, both of Jackson, for appellant.
"Road machinery dealers. Upon each person engaged in the business of selling tractors and/or road machinery, a state wide tax . . . of two hundred dollars."
Section 171, chapter 88, Laws of 1930.
It is, however, only when the meaning of provisions in the body of the act is doubtful that resort may be had to the title. And the title cannot control or vary the meaning of the enacting part, if the latter is plain and unambiguous nor, as a rule, can the title be used for the purpose of adding to the statute or extending or restraining any of its provisions. The ambiguity which justifies a resort to the title must arise in the body of the act; ambiguity in the title alone creates no embarrassment.
25 R.C.L., p. 1032, par. 267.
The enacting part of section 171, chapter 88, Laws of 1930, is written in plain, unmistakable language, and said section imposed a privilege tax on all persons dealing in tractors, regardless of the purpose for which they are sold, and regardless of the purpose for which they are manufactured or designed.
As an evidence that the legislature that enacted chapter 88, Laws of 1930, did not intend that titles to the different sections of said chapter, should limit, qualify or give meaning to any one of the different sections of said act, the court will only have to examine a few of the different sections of said act, with their respective titles to determine this point.
Sections 37, 46, 69 and 92 of Chapter 88, Laws of 1930.
The expression "road machinery" embraces each and all separate pieces of machinery, capable of being used and designed for use in contructing, building, and maintaining roads, such as tractors, graders, scoops, drags, and all other separate pieces of machinery that is used or designated for road use exclusively.
Why did the legislature use the comprehensive word tractor just preceding the words road machinery? It was certainly not used for the purpose of imposing a privilege tax on any machine used exclusively for roads, because all classes of machines used exclusively for roads were embraced in the expression "road machinery." The legislature, with unmistakable design and intention, purposely used the word "tractors" preceding the expression "road machinery;" because the expression "road machinery" did not take in and embrace farm tractors; but the word "tractors" (a comprehensive term) did embrace both farm tractors and road tractors.
The court will observe that dealers in farm tractors and road tractors were not assessed with a separate privilege tax in the privilege tax statute of 1930; that dealers in both farm and road tractors were embraced in section 171 in the 1930 privilege tax statute, no other section in the chapter mentioning or making reference to tractors. But the legislature at its regular 1932 session, in its privilege tax statute, separates the two classes of tractor dealers. And by section 180 of the 1932 act dealers in road tractors are required to pay a tax of two hundred dollars; and by section 214 of the 1932 act dealers in farm tractors are required to pay a privilege tax of fifty dollars.
The order of the state tax commission, holding that section 171 did not apply to dealers who sold farm tractors only, cannot be considered by this court at all, because the order was made and promulgated on September 15, 1931, long after the defendant had become delinquent for each of the years mentioned.
Had the order of the tax commission been made before the defendant became delinquent, and had the defendant acted upon such order, and become delinquent for the sole reason that it did act upon said order, that such order could not and would not have any application here because the language of section 171 under consideration is plain and unmistakable, free from doubt and ambiguity.
25 R.C.L., section 213, page 957.
A statute which is plain and unambiguous must be enforced as written.
Hamner v. Yazoo Delta Lumber Company, 56 So. 466; State v. Traylor, 56 So. 521.
It is clear that construction of statutes by administrative officials should be persuasive and carry weight, only when the statute construed and applied is of doubtful meaning.
Connard Furniture Co. v. Mississippi State Tax Commission, 133 So. 562.
Liability is not and should not be contingent upon the use to which the tractor may be designed, nor upon the class of customers who may buy and use the same.
Where the legislature has made no exception to the positive terms of statute, the presumption is that it intended to make none, and it is not the province of the court to introduce an exception by construction. If a statute is too rigid, or embraces matters that should have been omitted, the remedy is with the legislature.
26 R.C.L., section 224, page 972; Box v. Stanford, 13 S. M. 93.
An exemption from taxation will not be created by implication.
25 R.C.L., section 313.
A claim of exemption from taxation by virtue of a statute is construed strictissimi juris. It must rest upon language in regard to which there can be no doubt as to the meaning, and the exemption must be granted in terms too plain to be mistaken.
25 R.C.L., page 313.
Chambers Trenholm, of Jackson, for appellee.
It shall further specifically be the duty of the State Tax Commission, and it shall have power and authority to promulgate and have printed for distribution to revenue officers, and to taxpayers when requested, instructions for the enforcement of the Privilege Tax Law of 1930 and the Revenue Act of 1930, and rules and regulations governing the application of said laws; and shall promptly advise all revenue officers of any decisions of the courts with reference to the said laws.
Sec. 2, ch. 238, Laws of 1930.
State Tax Commission on Sept. 15, 1931, entered an order reciting its authority under said chapter 238, Laws of 1930, and adopting a regulation for the application of said section, by which it is specifically provided that: "The tax does not apply to a person engaged in the business of selling tractors for farm purposes only; tractors sold for farm purposes only being in no sense road machinery, provisions of section 171 do not apply and a sale of such tractor or tractors would not subject the dealer to the privilege tax imposed thereby.
It is not only where a statute is plain and unambiguous that it must be construed by the courts, for "it is the duty of the court to ascertain the real purpose and intent of the statute, where its meaning is not plain, or the letter leads to an absurdity or injustice.
Robertson v. Oil Company, 141 Miss. 356, 106 So. 449.
Laws imposing duties or taxes are not to be construed beyond the natural import of the language and are never to be construed as imposing burdens upon doubtful interpretation.
State v. Grenada Compress Co., 123 Miss. 191, 85 So. 137; Sperry Hutchinson Co. v. Harbinson, 123 Miss. 674, 86 So. 455.
Tax laws are to be strictly construed against the taxing power, and if the right to tax is not plain it cannot be implied, all doubts being resolved in favor of the taxpayer.
Miller v. I.C.R.R. Co., 146 Miss. 422, 111 So. 558.
A law imposing a privilege tax will be liberally construed in favor of citizens sought to be passed with the tax, and no occupation will be taxed unless it clearly appears that it comes within the provision of the law.
Board of Levee Commissioners v. Howze Mer. Co., 149 Miss. 843, 116 So. 92.
Where a statute has been construed by the Supreme Court, and thereafter re-enacted in substantially the same terms, the reenactment is a Legislative adoption of the construction, the Legislature being presumed to have known of the construction.
White v. Williams, 159 Miss. 732, 132 So. 573.
The legislature, when re-enacting statute, is presumed to have known of and adopted the construction placed thereon by governmental departments.
Miller v. White, 160 Miss. 734, 133 So. 146.
While the construction of the state board would not be binding upon this court, it yet remains that the construction which a department of government has placed upon the very law under which it was created and which it is sworn to enforce should be both suggestive and persuasive with the courts.
State v. Wheatley, 113 Miss. 555, 74 So. 427.
Throwing the weight of that additional argument into the scale — that the title to the section, a title placed there by the Legislature and not by the printer, is road machinery dealers — the balance must be definitely in favor of the constructing placed on the section by the State Tax Commission and by the learned trial court.
It will be remembered that this was a new subject in the privilege tax laws. The arrangement of subjects is alphabetical. Had tractors been the subject, instead of road machinery, the latter being just an addition, the author would undoubtedly have had tractors primarily in mind, and the title would have been tractors, or possibly Tractor-Dealers, or Tractor and Road Machinery Dealers. The section would have been inserted in its alphabetical position with other subjects commencing with the letter "T" and not with the letter "R" as it is.
Appellant brought this action in the circuit court of Hinds county against appellee to recover the privilege tax provided for by section 171, chapter 88, Laws 1930, and the statutory damages thereon. Appellee pleaded specially to the declaration, to which plea appellant demurred, which demurrer was overruled by the court, and appellant declining to plead further, final judgment was entered dismissing the suit, from which judgment appellant prosecutes this appeal.
The declaration is in two counts. The first count charged that appellee had been engaged for a two-year period, beginning June 1, 1930, in the business of selling tractors; the second count charged that appellee had been engaged for that period in the business of selling tractors "and/or road machinery" without first paying the tax required by said section. The special plea set up in substance that appellee had not been engaged in selling any road machinery or tractors for road use during the two-year period, but had sold only trucks and farm tractors, which were of an entirely different type of construction from road tractors and not suitable or intended for use in the construction or maintenance of roads; that appellee had paid an automobile dealer's license for selling trucks, and a store license for selling farm tractors and farm machinery; that the state tax commission, a department of the state government having the duty of collecting the tax, was empowered by statute (section 2, chapter 238, Laws 1930) to make rules and regulations for the application of the privilege tax statute; that accordingly the commission, in a formal order entered September 15, 1931, promulgated a rule or regulation for the application of the particular section here involved, declaring that persons selling farm machinery and tractors for farm use were not subject to the tax. A copy of the order of the state tax commission was made a part of the special plea. The demurrer to the special plea contained several grounds, all of which mean the same thing, namely, that under the statute appellee was subject to the license if it engaged in selling any kind of tractor whether for farm purposes or road construction or road maintenance. The trial court held that the construction placed upon the statute by the state tax commission was the proper one and overruled the demurrer.
The statute involved in section 171 of chapter 88, Laws 1930, which is in this language: "Sec. 171. Road Machinery Dealers. — Upon each person engaged in the business of selling tractors and/or road machinery, a state wide tax of two hundred dollars."
Appellant's contention is that the body of the statute needs no interpretation; that it is plain and unambiguous, and imposes the license upon each person engaged in the business of selling tractors, regardless of the kind or character of tractors and the use for which they are intended; while appellee contends that the statute is ambiguous, and therefore, in order to ascertain its meaning, resort must be had to its head lines or caption, "Road Machinery Dealers." We are of the opinion that appellee's contention is well founded.
It should be borne in mind that the demurrer admitted the allegation of the plea that farm machinery was not road machinery, and that farm tractors were of an entirely different construction from road tractors and not suitable or intended for use in maintaining public roads. The demurrer also admitted the averment of the plea that appellee had paid an automobile dealer's license and a store license. The privilege tax statute, of which section 171 is a part, contains 247 sections, and each section has a title, or rather a lead line. The title to chapter 88 is in this language: "An Act to revise the Privilege Tax laws of the state of Mississippi and to repeal all laws in conflict therewith, and to provide penalties."
Section 71 of the Constitution provides as follows: "Every bill introduced into the legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation. Each committee to which a bill may be referred shall express, in writing, its judgment of the sufficiency of the title of the bill, and this, too, whether the recommendation be that the bill do pass or do not pass."
The Legislature realized that it would neither be practical or useful to undertake to comply with that provision of the Constitution in the form of one title preceding the enacting clause, which constitutes the first section of the statute. Such a title would probably take up as much as a fourth of the space occupied by the statute itself. The Legislature, instead of doing that, undertook to indicate the subject-matters of the statute by head lines or lead lines at the beginning of each section.
The constitutional requirement that "the title ought to indicate clearly the subject-matter or matters of the proposed legislation" is directory, not mandatory. State v. Phillips, 109 Miss. 22, 67 So. 651, L.R.A. 1915D, 530; City of Jackson v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A, 1213. The Legislature, in the enactment of the privilege tax statute, undertook to comply with the Constitution by adopting a title in general terms preceding the enacting clause, followed, at the beginning of each section, by subtitles which are more in the nature of lead lines than titles. We think it apparent that these lead lines constitute a part of the statute; they are not ordinary titles. Without them some of the sections of the act would be incomplete and uncertain in meaning. The words "Road Machinery Dealers" were intended by the Legislature to qualify what followed. In other words, the Legislature intended to impose a privilege tax alone on the business of selling tractors and other machinery used for road construction or maintenance.
Where there is a constitutional provision requiring acts of the Legislature to correctly indicate their purpose, the title to an act, when the body of the act is ambiguous, often possesses great importance in determining its meaning. In some jurisdictions having such a constitutional provision the courts have held that the title becomes a part of the act and is to be considered in construing it. 59 C.J., section 599, pages 1005, 1006; 25 R.C.L., section 267, pages 1031-1033. It is not necessary to go that far in the decision of this case. We hold that these headings to the various sections of the privilege tax statute are not titles, nor subtitles in a strict sense; they are lead lines, and these lead lines are a part of the statute itself. Leaving out of consideration the constitutional requirement, the statute would be incomplete without them. So reading the section of the statute here involved, it means this: That a state wide tax of two hundred dollars was imposed on all road machinery dealers engaged in selling tractors or other road machinery. If the symbol "and/or" had been left out of the statute, there would have been less doubt about its meaning. In this connection we approve what the Court of Appeals of Illinois said in the recent case of Tarjan v. National Surety Company, as reported in 268 Ill. App. 232; section 18 of the schedule of the Constitution of that state provided that all judicial proceedings should be conducted and preserved in the English language. The court held that this symbol "and/or" was not a part of the English language.
Laws are to be strictly construed against the taxing power. The power cannot be implied. All doubts must be resolved in favor of the taxpayer. Miller v. Illinois Cent. R. Co., 146 Miss. 422, 111 So. 558; State v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137; Board of Levee Commissioners v. Howze Merc. Co., 149 Miss. 843, 116 So. 92.
We are of the opinion, in construing the statute, that the construction put upon it by the state tax commission ought to be very persuasive. The commission put the construction upon the statute contended for by appellee.
In the privilege tax act of 1932, chapter 89, the section here involved was rewritten as section 180 in that act and appears in two paragraphs. The last paragraph is in this language: "This section shall not be construed so as to impose a tax on persons selling farm tractors, or tractors adapted solely to agricultural purposes." The Legislature, when re-enacting this statute, is presumed to have known and adopted the construction placed thereon by the state tax commission. White v. Miller, 160 Miss. 734, 133 So. 146.
Affirmed.