Opinion
No. 41009.
February 23, 1959.
1. Appeal — interlocutory — improperly and improvidently allowed.
In action to collect privilege taxes, wherein demurrer raised issued as to whether tax collector was obligated to first render an assessment before filing suit for collection of taxes and this was only one of the numerous issues involved in the case, appeal from overruling of demurrer was improperly and improvidently allowed. Secs. 5586, 9696-134, 9696-135, Code 1942.
2. Appeal — interlocutory — to settle principles of case — when allowed — when not allowed.
An appeal to settle principles of case should not be allowed if there remain undetermined other important principles bound up with case, but should only be allowed when whole case can, as to its controlling principles, be settled by appeal from interlocutory decree. Sec. 1148, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Hinds County L. ARNOLD PYLE, Chancellor.
McLendon McLendon, Jackson, for appellant.
I. The State Tax Collector in a suit to collect privilege taxes must allege and prove compliance with the statutory procedure for the collection of privilege taxes. American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598; Bailey, State Tax Collector v. Emmich Bros., 204 Miss. 666, 37 So.2d 797; Foreman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344; Secs. 9696-206 et seq., Code 1942 as amended.
II. The State Tax Collector did not aver facts to show that the defendant engaged in a business enterprise taxable under the privilege tax laws of this State.
III. The State Tax Collector did not allege that the defendant was legally assessed with the taxes sued for at least 30 days prior to the commencement of the subject suit by the State Tax Collector. Winston v. Miller, 20 Miss. 550; Sec. 9696-206, Code 1942 as amended.
IV. The State Tax Collector did not allege that either he or the local tax collector mailed to the appellant a notice of the additional taxes and penalties shown by the assessments of the State Tax Collector and did not allow the appellant ten days within which to pay the taxes.
V. The State Tax Collector did not allege that either he or the local tax collector had made a demand in writing for the payment of the taxes sued for at least 30 days prior to the commencement of the suit by the State Tax Collector. Bailey, State Tax Collector v. Emmich Bros., supra; Secs. 9696-206, 9696-226, Code 1942 as amended.
VI. The State Tax Collector did not allege that the defendant failed to apply for and obtain any privilege license for his subject business operation; or if the appellant did obtain a privilege license for said business operation, that he was notified of the determination that an additional tax was due and was given 30 days to pay same without penalty. Secs. 9696-115, 9696-208, Code 1942 as amended.
Pyles and Tucker, Jackson, for appellee.
I. The suit against appellant for the collection of past due and unpaid privilege taxes was filed pursuant to the authority vested in appellee under the statutes and fully complies with the statutory authority conferred and the statutory duties imposed upon appellee. Adams v. Clarke, 80 Miss. 134, 31 So. 216; Adams v. Lamb-Fish Lbr. Co., 104 Miss. 48, 61 So. 6; Adams v. Peoples Bank of Biloxi, 108 Miss. 346, 66 So. 407; Alt v. Bailey, 211 Miss. 547, 52 So.2d 283; Bailey, State Tax Collector v. Emmich Bros., 204 Miss. 666, 37 So.2d 797; Bennett v. Hardwell, 214 Miss. 390, 50 So.2d 82; Craig v. Gulf, M. O.R. Co., 196 Miss. 172, 16 So.2d 760; General Contract Corp. v. Bailey, 218 Miss. 484, 67 So.2d 485; Hays Finance Co. v. Bailey, (Miss.), 54 So.2d 727; Richardson v. Cortner, 232 Miss. 885, 100 So.2d 854; Secs. 9179, 9187, 9696-206, 9746, Code 1942; 84 C.J.S., Taxation, p. 1385.
II. There is no merit in the contentions made and argued by appellant in the Chancery Court and before this Court, and the learned Chancellor correctly overruled the demurrer to the bill of complaint. Bailey v. Associates Loan Co., 218 Miss. 512, 67 So.2d 496; Bailey, State Tax Collector v. Emmich Bros., supra; General Contract Corp. v. Bailey, supra; Robertson v. United States Nursery Co., 121 Miss. 14, 83 So. 307.
III. The learned Chancellor erred in granting the appeal in the instant case. Breland v. Lemastus, 183 Miss. 150, 183 So. 500; Liberty Trust Co. v. Planters Bank, 155 Miss. 721, 124 So. 341; Lott v. Windham, 191 Miss. 849, 4 So.2d 342; Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654; Universal Life Ins. Co. v. Keller, 197 Miss. 1, 17 So.2d 797; Ward v. Whitfield, 64 Miss. 754, 2 So. 493.
Watkins Eager, Jackson, Amicus Curiae.
I. No assessment has been made here. Bailey, State Tax Collector v. Emmich Bros., 204 Miss. 666, 37 So.2d 797; Stone v. Independent Linen Service, 212 Miss. 580, 55 So.2d 165; Viator v. State Tax Comm., 193 Miss. 266, 5 So.2d 487.
II. The tax collector being authorized to make assessments of city privilege taxes, such assessments must be made through the local authorities and in accordance with the procedure provided for by said city privilege tax code. Adams v. Tonella, 70 Miss. 701, 14 So. 17; Anderson Bros. Corp. v. Stone 227 Miss. 26, 85 So.2d 767; Bailey, State Tax Collector v. Emmich Bros., supra; Clarksdale Building Loan Assn. v. Board of Levee Commissioners, 168 Miss. 326, 150 So. 783; Craig v. Brown Williamson Tobacco Corp., 190 Miss. 360, 200 So. 446; Craig v. Columbus G.R. Co., 192 Miss. 461, 5 So.2d 681; General Contract Corp. v. Bailey, 218 Miss. 484, 67 So.2d 485; Millwood v. State, 198 Miss. 485, 23 So.2d 496; Spencer v. Mayor, etc., 215 Miss. 160, 60 So.2d 562; Stone v. Independent Linen Service, supra; Watson Broadhead v. Broadhead, 203 Miss. 142, 33 So.2d 302.
Appellee, William Winter, State Tax Collector, brought this suit in the Chancery Court, First Judicial District of Hinds County, against J.G. Nash, doing business as Nash Finance Company, Ltd., appellant. It was for the purpose of collecting the local privilege taxes imposed upon one doing a money lending business where a greater rate of interest than 15 per cent per annum is charged, Miss. Code 1942, Sec. 9696-135; and upon one operating an industrial loan business, Code Sec. 9696-134; and the state privilege tax upon one doing a money lending business charging interest of more than 20 per cent per annum, Code Sec. 5586.
Nash filed a general demurrer to the bill, asserting it showed on its face that the assessments alleged therein were void and created no liability on defendant. The demurrer thus raised the issue of whether, in a suit for collection of these stated privilege taxes, the tax collector is obligated to first render an assessment against taxpayer for the taxes, prior to filing a suit for their collection. The chancery court overruled the demurrer, but allowed Nash an interlocutory appeal under Code Sec. 1148.
This statute permits interlocutory appeals "in order to settle all the controlling principles involved in the cause, or in exceptional cases to avoid expense and delay." This appeal will accomplish neither of these purposes. Only one of the numerous issues which are involved would be settled by this interlocutory appeal, namely, whether the tax collector must first make formal assessments of these particular privilege taxes. On the merits the case will necessarily involve issues, among others, of whether appellant is a money lender or broker, and whether in the numerous instances set forth in the bill he has charged interest in excess of 15 and 20 per cent per annum. The appeal would settle none of the issues on the merits.
If appellant should be successful as to the question on demurrer, it would decide the present case as to him; but if appellant were unsuccessful, it would decide none of the principal issues raised by appellee, or which might be raised in appellant's answer when filed. So it is apparent that this appeal is one taken in the teeth of the statute and contrary to its restrictions. In Liberty Trust Co. v. Planters Bank, 155 Miss. 721, 124 So. 341 (1929), the Court analyzed at length the history and purpose of Sec. 1148, and condemned the practice of piece-meal appeals. Although appellee raises the issue here, it was there said that the Court would notice of its own motion an improper interlocutory appeal.
Stirling v. Whitney National Bank, 170 Miss. 674, 682, 150 So. 654 (1933), said: "Our present revised statute means exactly what it says, that such an appeal does not lie to settle some of even most of the controlling principles, but must be effective to settle all the controlling principles of the case, and in such an adequate manner as to furnish a definite guide throughout the case, so far as the merits thereof are concerned." See also Ward v. Whitfield, 64 Miss. 754, 2 So. 493 (1887); Universal Life Insurance Co. v. Keller, 197 Miss. 1, 17 So.2d 797 (1944); Griffith, Mississippi Chancery Practice (2d ed., 1950), Secs. 680-684.
(Hn 1) This appeal was improperly and improvidently allowed and must be dismissed. Nor does it save either expense or delay. On the contrary, it has added to and produced both expense and delay. (Hn 2) Judge Griffith, in his cited book, at Sec. 681, summarizes the basic test: "An appeal to settle the principles of the case should not be allowed if there remain undetermined other important principles bound up with the case. It should be only when the whole case can as to its controlling principles be settled by the appeal from an interlocutory decree that such an appeal should be allowed for the settlement of principles."
Appeal dismissed.
Roberds, P.J., and Hall, Holmes, and Gillespie, JJ., concur.