Opinion
December 31, 1948.
1. Gas and oil — severance taxes — division between municipality and county.
When the amount of the severance taxes on oil produced within the corporate limits of a municipality was more than one-third of all such taxes returned to the county, the municipality was entitled to one-third of amount returned to and collected by the county. Section 3, Chapter 134, Laws 1944.
2. Statutes — a subsequent statute when not interpretative of previous statute.
A subsequent legislative act is not by implication to be considered as interpretative of a previous act when there is no ambiguity in the previous act, nor may the legislature by a subsequent act direct the courts with any conclusive effect as to how an existing statute shall be construed, especially when under the existing statute rights and liabilities have already been acquired or have already accrued, and when no such purpose is manifest in the terms of subsequent act. H.B. 485 Acts, 1948.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
O.M. Oates and Welch, Cooper Welch, for appellant.
It is the contention of the appellant that a proper construction of the quoted portion of the act is to the effect that it was the intention of the legislature that in no event shall the municipality be allocated more than one-third of the tax produced in the municipality and returned to the county. In other words, in the clause "in no event, however, shall the amount allocated to municipality exceed one-third (1/3) of the tax returned to the county," means one-third of the tax returned to the county derived from oil produced within the municipality.
It is the contention of the appellant that the above quoted sentence from the paragraph should be construed so as to read: "In no event, however, shall the amount allocated to municipalities exceed one-third of the tax produced in the municipality and returned to the county."
But the legislature in 1948, to clarify the provisions of the "Oil" act in writing the "Gas" act removed any ambiguity that may have existed by limiting the tax specifically to 1/3 of that gathered from within the municipality. But it will be said that subsequent legislative action can have no effect on the court in the consideration or construction of a statute. In American Jurisprudence, Volume 50, Section 337, Page 328, the following is said: "The interpretation of a statute by the legislative department of the government may go far to remove doubt as to its meaning. This fact is recognized by the courts which regard it as proper, in determining the meaning of a statute, to take into consideration subsequent action of the legislature, or the interpretation which the legislature subsequently places upon the statute. There are no principles of construction which prevent the utilization by the courts of subsequent enactments or amendments as an aid in arriving at the correct meaning of a prior statute, and it is very common for a court, in construing a statute, to refer to subsequent legislation as impliedly confirming the view which the court has decided to adopt. Indeed, it has been held that if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute." To the same effect we have Corpus Juris, Volume 59, Sec. 612, Page 1033.
McFarland McFarland, for appellee.
It is significant to note that the appellant does not ask for relief under the statute as written, but asks this court to add five words to the statute; which would of course give the desired effect and would not construe the statute, but would rewrite the statute so as to suit the appellant. It is a basic principle that no court has the authority to rewrite a statute, but can only take the law as enacted by the legislature and arrive at what was meant by what was written.
No where has this or any other court been given authority to re-write or enact a statute, but only may they interpret an ambiguous statute. The rule has thus been laid down that: "The court cannot restrict or enlarge the meaning of an unambigious statute." City of Hazelhurst v. Mayes, 96 Miss. 656, 51 So. 890; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521. "A departure from the language of an ambigious statute is not justified by any rule of construction, and is an exercise of legislative power." Koch v. Bridges, 45 Miss. 247. "Where a statute is plain and unambigious, there is no room for construction." Yerger v. State, 91 Miss. 802, 45 So. 849. In McCary v. State, 187 Miss. 78, 192 So. 442, Justice McGowen speaking for the court expresses the rule in the following language quoted from the opinion: "Where statute is perfectly plain, there is no room for the court to interpolate a strained construction. Since the court has no power to enact a statute." And again in Wilson v. Yazoo and M.V.R. Co., 192 Miss. 424, 6 So.2d 313, Justice McGehee, uses the following rule in the quoted language: "No principle is more firmly established, or rests on more secure foundations, than the rule which declares when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the legislature shall be deemed to have intended to mean what they have plainly expressed, and, consequently no room is left for construction in the application of the statute."
Appellant depends largely on an act of the legislature four years subsequent to the statute in question, and quotes from American Jurisprudence, Volume 50, Section 337, Page 398, for its authority for this court to reverse the decision of the learned court below. It is most interesting to explore fully the legal authority last cited, and for the benefit of this court appellee will set out a subsequent portion of the above cited section of American Jurisprudence, to-wit: "However, where intervening rights have arisen, the mandatory operation of the explanatory act is generally regarded as prospective only. Indeed, retroactive declaratory statutes will not be allowed to affect vested rights. The legislature may not, under cover of giving a construction to an existing or expired statute, invade private rights with which it could not interfere by a new and affirmative statute. That is to say, the legislature has no power to enact a law declaring what construction or decision the court shall make upon acts which rights and liabilities have already been acquired or incurred. In this respect, the general rule is that the construction of statutes is a judicial, and not a legislative, function, and that the legislature has no power to direct the judiciary in the interpretation of existing statutes, so as to make such legislature declarations conclusive on the courts. An erroneous opinion of the law by the legislature does not alter it. It is true that, in the interpretation of statutes, the controlling factor is the legislative intent, but the legislative intent that controls in the construction of a statute has reference to the legislature which enacted the act. In any event, a later statute not declaratory in its terms may not be relied upon for the purpose of giving a construction to an earlier act plain in its terms. Where the legislative body has expressly legislated in respect to a given matter, that express legislation must control, in the absence of subsequent legislation equally expressed; it is not overthrown by any mere influences or implications to be found in such subsequent legislation."
Between the enactment of the 1944 statute and the passage of the 1948 act relating to Gas produced in municipalities, material rights have accrued to the appellee.
In the final analysis, this appeal and the brief of appellant presents a request for this court to do that which was specifically condemned by Justice McGehee in the Wilson v. Yazoo and M.V.R.R. Co. case, supra, and thus destroy that firm principle of law that was announced by Justice McGowen in the McCary v. State case, supra, when he wrote into the law our state, that this court cannot enact a statute.
Chapter 134, Section 3, of the Laws of 1944, provides for distribution between the state and the respective counties of severance taxes on oil production. It is specially provided therein as follows: "When there shall be any oil producing properties within the corporate limits of any municipality, then such municipality shall participate in the division of the taxes returned to the county in which the municipality is located, in the proportion which the production of oil from any properties located within the municipal corporate limits bears to the total production in the county. In no event, however, shall the amount allocated to municipalities exceed one-third (1/3) of the tax returned to the county. Any amount received by any municipality as a result of the allocation herein provided, shall be used only for such purposes as are authorized by law."
The total taxes so collected and remitted between the period beginning April, 1944, to December, 1946, both inclusive, totals $173,654.90. One-third of such amount is $57,884.97. Taxes upon the oil produced with the Town of Heidelberg far exceed the latter amount. The county collected the former amount and paid to the Town $25,980.57, which was one-third of the taxes from oil produced within the Town. The Town, after rejection by the County of its claim for the difference between the amount paid and $57,884.97, filed suit. Demurrer to the declaration was overruled and the County suffered a final judgment against it for $31,904.40, whence this appeal.
(Hn 1) Since the Town was authorized to "participate in the division of the taxes returned to the county in which the municipality is located, in the proportion which the production of oil from any properties located within the municipal corporate limits bears to the total production in the county," it is clear that under this unambigious language it was entitled to one-third of the taxes returned to the County, since the production exceeded the maximum allowance of a one-third division. The further provision that in no event shall the amount allowed to municipalities exceed one-third of the "tax returned to the county" should dispel any fancied duplicity in the statute.
(Hn 2) While interpretative devices may be resorted to only to resolve ambiguity (Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318), we take notice of appellant's argument based upon subsequent legislative action whereby in 1948 the Legislature, H.B. 485, March 23, 1948, imposed a similar tax upon the production of gas, and in regulating the distribution of such taxes returned to the County, provided in Sec. 3: "In no event, however, shall the amount allocated to municipalities exceed one-third (1/3) of the tax produced in the municipality and returned to the County." We supply italics.
It is argued that the quoted language disclosed a legislative intent toward a consistent policy with respect to oil production and is a legislative interpretation of the Act of 1944. Support is sought by citation of 50 Am. Jur., Statutes, Sec. 337, at page 328. The citation states: "However, where intervening rights have arisen, the mandatory operation of the explanatory act is generally regarded as prospective only. Indeed, retroactive declaratory statutes will not be allowed to affect vested rights. The legislature may not, under cover of giving a construction to an existing or an expired statute, invade private rights with which it could not interfere by a new and affirmative statute. That is to say, the legislature has no power to enact a law declaring what construction or decision the court shall make upon acts under which rights and liabilities have already been acquired or incurred. In this respect, the general rule is that the construction of statutes is a judicial, and not a legislative, function, and that the legislature has no power to direct the judiciary in the interpretation of existing statutes, so as to make such legislative declarations conclusive on the courts."
This authority further states: "In any event a later statute not declaratory in its terms may not be relied upon for the purpose of giving a construction to an earlier act plain in its terms."
The Act of 1948, dealing as it does with a similar tax upon gas production, is consistent with a purpose to retain a distinction in the distribution of tax revenues from oil, which purpose could readily have been disavowed upon so appropriate an occasion for its consideration.
We must therefore take the 1944 Act at its own words into which no ambiguity can be thrust without unreasonable effort.
Affirmed.