Opinion
No. 37156.
June 13, 1949.
1. Statutes — repeal — modification — effect of.
The effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed, and a statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modifying statute, unless the repealing or modifying statute contains a saving clause.
2. Statutes — repeal of statute as to oil taxes to be credited to distributors — new statute limiting time for claim.
When during the period of a then existing statute a distributor of gasoline became entitled to a credit for gasoline taxes erroneously paid, under which statute there was no time limit for presenting the claim to the state, but the statute was repealed and the new statute required claim to be presented within one year from date of overpayment, a claim presented after the enactment of the new statute and more than one year after the date of the overpayment was barred. Secs. 10018, 10020, Code 1942; Sec. 7, Chap. 264, Laws 1946.
Headnotes as approved by Hall, J.
APPEAL from the circuit Court of Hinds County; H.B. GILLESPIE, Judge.
James T. Kendall, Assistant Attorney General, for appellant.
I. The failure to file claim within one year from date of erroneous payment. Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 391, Sug. of Error Overruled, 156 Miss. 227, 126 So. 39; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; 51 Am. Jur., Taxation, Secs. 1167, 1168, 1179; Sections 7 and 59, Chapter 264, Laws of 1946; Musgrove v. V. N.R.R. Co., 50 Miss. 677; Deposit Guaranty Bank v. Williams, 193 Miss. 432, 9 So.2d 638; Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349; City of Jackson v. State, 156 Miss. 306, 126 So. 2; City of Jackson v. Wallace, 189 Miss. 352, 196 So. 223; Rosebury v. Norsworthy, 135 Miss. 845, 100 So. 514.
II. The state has not given its consent to be sued in such cases. Gulf Export Co. v. State, 112 Miss. 452, 72 So. 281; Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517; State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351; Stone v. McKay Plumbing Co., supra; State Mineral Lease Commission v. Lawrence, 171 Miss. 442, 157 So. 897; Mine Safety Appliances Co. v. Forrestal, 326 U.S. 731, 66 S.Ct. 219, 90 L.Ed. 140; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Land v. Dollar, 330 U.S. 371, 67 S.Ct. 1009, 91 L.Ed. 1209; 49 A.J. States, Territories, and Dependencies, Sections 92 and 93.
III. Mandamus cannot control the appellant's discretion. Love v. Lincoln County, 165 Miss. 860, 147 So. 877; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Selig v. Price, 167 Miss. 612, 142 So. 504; Thomas v. Price, 171 Miss. 450, 158 So. 206; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; City of Clarksdale v. Harris, 188 Miss. 806, 196 So. 647; American Book Co. v. Vandiver, 181 Miss. 467, 178 So. 598; Loeb v. Board of Trustees, 171 Miss. 467, 158 So. 333; 34 Am. Jur., Mandamus, Section 170; Sections 10008 to 10066, Code of 1942; Sections 7 and 59, Chapter 264, Laws of 1946, as amended by Section 5, Chapter 315, Laws of 1948. Watkins Eager, and W.D. Conn, Jr., for appellee.
Point I. Appellee is not barred from its right to a writ of mandamus by reason of any alleged failure to present a claim to the Comptroller within one year from the date of the overpayment contrary to Section 7 of Chapter 264, Laws of 1946. Sections 722, 10018, 10020, Code 1942; Woodruff v. State, 77 Miss. 68, 25 So. 483; Fugua v. Board of Supervisors, 192 Miss. 6, 4 So.2d 350; Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227; Section 7, Chapter 264, Laws of 1946; Matthews v. Southeimer, 39 Miss. 174; Taylor v. Twiner, 9 So.2d 644; United States v. Kales, 314 U.S. 185, 86 L.Ed. 132; Roach v. Durham Construction Co., (Mo.) 52 S.W. 593; Minot Beverage Co. v. Minneapolis St. Louis Ry. Co., 65 F. Supp. 293, 297; Simmons v. United States (C.C.A.N.C.) 110 F.2d 296, 298; Weir v. Silver Bow County, et al., (Mont.) 124 P.2d 1003; Drainage District v. Ada County, 226 P. 290; Cedar Rapids Hotel Co. v. Stirn, 268 N.W. 562; Butler v. Cotton, et al., 11 N.W.2d 868; Birch v. Orange County, (Cal.) 200 P. 647; Atlantic Coast Line Rwy. Co. v. Brunswick County, 100 S.E. 428; Neilson v. County, (Utah) 123 P. 334; Board of Commissioners v. Kipp Sheep Co., (Colo.) 288 P. 412; State v. Republic Oil Refining Co., (Miss.) 32 So.2d 290; Jefferson Standard Insurance Company v. Dorsey, 178 Miss. 852, 173 So. 669; City of Lumberton v. Schrader, 176 Miss. 272, 168 So. 77; U.S.F. G. Co. v. Maryland Casualty Co., 191 Miss. 103, 199 So. 278; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Miss. Central R.R. Co. v. Hattiesburg, 163 Miss. 311, 141 So. 897; Bell v. Union Planter's Bank Trust Co., 130 So. 486, 158 Miss. 486; Power, Secretary of State, v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; Barbour v. Williams, 196 Miss. 409, 17 So.2d 604; Hill v. Bayland, 40 Miss. 608; Hall v. Wells, 54 Miss. 289; Brisco v. Anketell, 28 Miss. 361, 61 Am. Dec. 553; Russell Investment Co. v. Russell, 182 Miss. 385, 178 So. 815. 182 So. 102; McBride v. Burgin, 142 Miss. 859, 108 So. 148; Gilfillan v. Union Canal Co., 109 U.S. 401, 27 L.Ed. 977; 12 Am. Jur., Constitutional Law, Sec. 445, page 89; Capital State Bank v. J.M. Lewis, et al., 64 Miss. 727; Musgrove v. Vicksburg Miss. R.R. Co., 50 Miss. 677; Deposit Guaranty Bank v. Williams, 193 Miss. 432, 9 So.2d 638; Stone v. McKay Plumbing Co., 26 So.2d 349, Suggestion of Error sustained, 30 So.2d 91; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466.
Point II. Appellee is entitled to a writ of mandamus to require the Motor Vehicle Comptroller to give it credit on future tax payments for over-plus in past remittances in accordance with the requirements of Section 10020, Mississippi Code of 1942, as amended by Chapter 264 of the Laws of 1946. 49 Am. Jur., "State Territories and Dependencies"; 49 Am. Jur. par. 94; Houston v. Ormes, 252 U.S. 469, 64 L.Ed. 667; Section 1109, Code 1942; Mize, Motor Vehicle Commissioner v. Republic Oil Refining Co., 199 Miss. 292, 24 So.2d 741; Trotter v. Gates, 139 So. 843; Miller v. White, Auditor, 126 So. 833, 157 So. 114; White v. Miller, 159 Miss. 598, 132 So. 745; Beaman v. Leake County, 142 Miss. 237; Anderson v. Robbins, 161 Miss. 604, 137 So. 476; Cowan v. Highway Commission, 195 Miss. 657, 13 So.2d 614; Greenwood v. Provine, 143 Miss. 42, 108 So. 284; Kelly v. Wimberly, 61 Miss. 548; Chapter 247, Laws of 1942; City of Jackson v. McPherson, 158 Miss. 152; Swann v. Gray, 44 Miss. 393; Clarksdale v. Harris, 188 Miss. 806; Selig v. Price, 167 Miss. 612, 142 So. 504; Section 5004, Code 1930; Watkins v. Miss. State Board of Pharmacy, 170 Miss. 26, 154 So. 277; Hebron Bank v. Lawrence County, 69 So. 209, 109 Miss. 397; 55 C.J.S., "Mandamus", 219; State v. City of Grand Island, 15 N.W.2d 341; Hecht v. Crook, 40 A.2d 673 (Maryland); State v. Thomson, 37 A.2d 689; Stark v. Christie, 19 A.2d 716; State v. Republic Oil Co., 32 So.2d 290.
Appellee brought a mandamus suit seeking to compel appellant to allow it credit for an overpayment of $2500.17 in gasoline and oil taxes, this amount being the difference between the number of gallons invoiced to appellee at refineries in other states for shipment into Mississippi and the number of gallons actually received by it in its storage tanks in this state between May 1, 1942, and March 31, 1946.
During said period of time the gasoline and oil tax law did not clearly provide whether the tax should be paid upon the number of gallons shown by refinery invoices or upon the gallonage actually received by a distributor in this state. In State ex rel. Rice v. Republic Oil Refining Co., 202 Miss. 688, 32 So.2d 290, decided October 27, 1947, this court construed the law to mean that a distributor was liable only for the tax upon the number of gallons actually received within the state. Prior to that decision the appellee, as well as many other distributors, construed the law as requiring payment of tax upon the refinery invoices and paid taxes accordingly, and this suit is, in effect, for recovery of alleged overpayments.
The petition for writ of mandamus shows on its face that appellee filed its claim for refund or credit on its alleged overpayments on December 18, 1947, which was more than twenty months after the last overpayment was made. Appellant demurred to the petition assigning as cause for demurrer, among other reasons, that he had no authority under the law to credit appellee for the overpayment because the claim therefor was not filed within one year from the date of such overpayment as required by Section 7, Chapter 264, Laws of 1946. The demurrer was overruled by the trial court, and, appellant having declined to plead further, final judgment was entered directing issuance of the writ, from which this appeal is prosecuted.
At the time of the alleged overpayments the collection of gasoline and oil taxes was vested in a state official then designated as Motor Vehicle Commissioner. Sections 10008-10081, Mississippi Code of 1942. By Chapter 237, Laws of 1946, said office was abolished and a new office known as Motor Vehicle Comptroller was created. By Chapter 264, Laws of 1946, and by other acts adopted in 1946 not necessary to here mention, the gasoline and oil tax laws were revised and amended and all previous laws in conflict therewith were repealed. Said Chapters 237 and 264 became effective from and after April 1, 1946.
Section 10018, Code of 1942, was in effect during the entire period of the alleged overpayment of taxes, and until April 1, 1946. It provided for the making of monthly reports and remittances by each distributor of petroleum products in this state to the Motor Vehicle Commissioner, and further provided "In case gasoline in storage is destroyed by explosion, fire, tornado, flood, or acts of Providence, then the distributor may deduct the amount so destroyed and may also deduct any payment erroneously made on making proof thereof, approved by the Commissioner". Section 10020, Code of 1942, provided, among other things, "When a remittance is made for more than the actual amount due, the Commissioner shall credit the overplus to the succeeding month." This section was also repealed effective April 1, 1946. Prior to that date there was no limitation of time for the filing of a claim for overpayment.
Said Section 10018 of the 1942 Code was rewritten and re-enacted, with several changes, as Section 7, Chapter 264, Laws of 1946, which provided, among other things, "Upon proof satisfactory to the comptroller and upon approval of the comptroller, any qualified distributor may also deduct any payment of taxes on gasoline or oil erroneously made. . . . No claim for the destruction of gasoline, or for an erroneous payment of tax, shall be allowed or approved by the comptroller unless such claim is presented within one year from the date of the loss or erroneous payment." It will be noted that the very statute which grants the right of deduction for overpayment of these taxes also destroys that right unless claim therefor is presented within one year from the date of erroneous payment. In the absence of this statute the appellee would have no right to claim a credit or deduction for an erroneous payment. It is true that the Comptroller succeeded the Commissioner, but the Legislature specifically and in no uncertain terms granted him authority to approve claims only when they are presented within one year from the date of the erroneous payment, and prohibited him from approving those which were not presented within that time. It must be borne in mind that we are here dealing with a suit against the Comptroller under the new law and not with a suit against the Commissioner under the old law. The statute not only limits appellee's right to obtain a credit or deduction but also limits the Comptroller's power and authority to grant it. Therefore we are of the opinion that the Comptroller could do nothing but reject appellee's claim because it was not presented within the time prescribed by the 1946 law. It is unnecessary for us to go into the question of what reasons prompted the legislature to limit the time within which claims of this nature should be presented, though many good reasons therefor could be advanced.
Our holding in this case is abundantly supported by prior decisions of this Court. In Deposit Guaranty Bank Trust Co. v. Williams, 193 Miss. 432, 9 So.2d 638, 639, it was said, "Many decisions in this state have affirmed the rule, which generally prevails, that (Hn 1) the effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed, and that a statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute, unless the repealing or modifying statute contains a saving clause. Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470, and Musgrove v. Vicksburg N. Railroad Co., 50 Miss. 677, are among the number of such cases in this state."
Appellee argues that Section 59 of said Chapter 264, Laws of 1946, contains a saving clause in its favor, and, while that section might be construed as a saving only in favor of the state for the collection of fines, penalties, damages and taxes under the repealed statute, nevertheless if it does preserve the right of appellee for credit or deduction on account of its alleged erroneous payment, (Hn 2) such right is unquestionably subject to the one year limitation for presenting the claim as provided by Section 7 of the Act. Since the petition for mandamus affirmatively shows that the claim was not presented within the one year period nor within one year after April 1, 1946, the legislature has withheld from appellant the authority to allow it, and it necessarily follows that the demurrer should have been sustained by the trial court, and the judgment is accordingly reversed and judgment here entered sustaining the demurrer and dismissing appellee's suit.
Reversed and judgment here.