Opinion
No. 41275.
October 5, 1959.
1. Mandamus — taxpayer without right to maintain suit to compel State Tax Commission to back assess and collect certain income taxes allegedly due State where matter involved was one solely affecting the public interest.
Taxpayer had no standing to bring suit against State Tax Commission seeking writ of mandamus to compel Commission to back assess and collect certain income taxes allegedly due State, where taxpayer had suffered no legal injury other than that suffered by any other citizen or taxpayer of State, Sec. 1109, Code 1942.
Headnote as approved by Holmes, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
J.D. Stietenroth, Jackson, pro se.
I. Allegations of petition for writ of mandamus were admitted by appellee on filing general demurrer. Jacobs v. Bodie, 208 Miss. 779, 45 So.2d 587; State ex rel. Baker v. Nichols, 104 Miss. 419, 63 So. 7025.
II. Appellee's demurrer did not set forth any ground whatsoever which was effective to test the sufficiency of the petition for writ of mandamus and did not raise any question as to whether or not a cause of action was set forth in the petition for writ of mandamus. Aetna Ins. Co. v. Commander, 169 Miss. 847, 153 So. 877; Goff v. Randall, 206 Miss. 178, 39 So.2d 881; Sec. 1112, Code 1942.
III. Appellant alleged two causes of action in his petition for writ of mandamus: (1) the unlawfulness from the date it was promulgated of Article 157 of Mississippi Income Tax Regulations 11, and (2) the unlawful failure and refusal of appellee to assess and collect income taxes according to the income tax laws of the State of Mississippi, and appellant prayed for relief in respect of these two causes of action. However, appellee's demurrer failed to assign any grounds for demurrer, as required by Section 1490, Code of 1942, as amended, in respect of the alleged unlawfulness of Article 157 of Mississippi Income Tax Regulations 11. Cummings v. Daugherty, 73 Miss. 405, 18 So. 657; State Board of Education v. Mobile O.R. Co., 71 Miss. 500, 14 So. 445; Washington v. Soria, 63 Miss. 157; Sec. 1490, Code 1942.
IV. Appellee's demurrer set forth several defensive pleas in the nature of pleas in abatement or pleas in bar or pleas in confession and avoidance, and all such pleas having been abolished by Section 1475.5(1), Code of 1942, as amended, and by the same code section, all such pleas, if pleaded, must be by answer, it is respectfully submitted that the inclusion of such defensive pleas in the said demurrer had the effect of superseding or overruling any grounds for general demurrer which may have been set forth, but there were none in appellee's demurrer. Sec. 1475.5(1), Code 1942; 71 C.J.S., Sec. 232(e) p. 456; Griffith, Outlines of the Law, p. 585.
V. Appellee's demurrer may be construed as setting forth grounds of special demurrer, but special demurrers have been abolished by the Code. Aetna Ins. Co. v. Commander, supra; Afro-American Sons and Daughters v. Webster, 172 Miss. 602, 161 So. 318; Poole v. Mississippi Publisher's Corp., 208 Miss. 364, 44 So.2d 467; Sec. 1497, Code 1942.
VI. The Circuit Court of the First Judicial District of Hinds County, Mississippi, erred in sustaining appellee's motion to strike appellant's pleading entitled "Petitioner's Written Statement of Special Matter Which Petitioner Intends to Give in Evidence in Denial or Avoidance of Such Special Matter Given In the Answer (misnamed demurrer) Filed in This Cause by Defendant". Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007; Sec. 1475.5(1) (4), Code 1942.
VII. Persons other than the Attorney General or a district attorney have the lawful right to maintain mandamus in respect of matters affecting the public interest. Adams v. Clarksdale, 95 Miss. 88, 48 So. 242; Kimberly v. Morris, 37 Tex. 637, 31 S.W. 808; Vetters v. State ex rel. Murray (Tex.), 255 S.W.2d 588; Secs. 3231, 4743, Code 1906; Secs. 1109, 4696, 4697, 7716.30, Code 1942.
VIII. Attorney General and district attorney are prohibited from maintaining mandamus against appellee, a state-wide officer. Appellant demonstrates that unless private persons who are interested have the right to maintain mandamus against appellee and other state-wide officers, then nobody can. Kennington-Saenger Theaters v. State, 196 Miss. 841, 19 So.2d 483, 153 A.L.R. 883; Secs. 1121, 3841, Code 1942.
IX. If this Court now holds that appellant does not have the lawful right to maintain mandamus against appellee, then this Court must overrule Adams v. Clarksdale, and "judicially repeal" Section 1109, Code of 1942, as amended, as it relates to state-wide officers and "judicially repeal" numerous other mandamus provisions now appearing in other statutes. Secs. 1109, 4697, 4818, 7716.30, 8038(c), 9023.33, 9187, Code 1942.
X. Appellant shows that appellee specifically admitted in his general demurrer that he had refused to assess and collect income taxes in accordance with the Mississippi Income Tax Laws, thus admitting that he has violated the Mississippi Income Tax Laws and violated appellee's oath of office required by Section 268 of the Mississippi Constitution.
XI. Appellant shows that a serious constitutional question is raised in this suit by the violation by appellee of Section 268 of the Mississippi Constitution; this Court is urged not to sustain a demurrer in a suit involving a serious constitutional question. Board of suprs. Simpson County v. Buckley, 81 Miss. 474, 33 So. 650.
John E. Stone, Jackson, for appellee.
I. A demurrer does not admit conclusions of law.
II. Appellee's demurrer was sufficient in form.
III. The lower court correctly struck appellant's pleading setting forth special matter to be given in evidence.
IV. To enforce public rights the action for mandamus must be brought either by the Attorney General or the district attorney.
V. Discretionary action on the part of an official may not be controlled by mandamus.
VI. Appellant does not allege in his petition that he sues for and on behalf of other taxpayers nor does he invite them to join in the litigation.
VII. Appellant does not show special damages to himself or bring this suit within the category of a taxpayer's suit.
VIII. Rule making is a function of the Tax Commission.
IX. The judgment of the lower court should be sustained.
Collation of authorities: Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; Aetna Ins. Co. v. Commander, 169 Miss. 847, 153 So. 877; Barnes v. Jones, 139 Miss. 675, 103 So. 773; Birdsong v. Grubbs, 208 Miss. 123, 43 So.2d 878; Board of Suprs. Rankin County v. Lee, 147 Miss. 99, 113 So. 194; California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542; City of Clarksdale v. Harris, 188 Miss. 806, 196 So. 647; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Clayton v. McWilliams, 49 Miss. 311; Cole v. State, 91 Miss. 628, 45 So. 11; Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So.2d 171; Edwards v. Alexander, 216 Miss. 529, 62 So.2d 882; Gaudet v. Mayor and Board of Aldermen of Natchez, 209 Miss. 113, 46 So.2d 79; Golding, State Auditor v. Armstrong, 231 Miss. 889, 97 So.2d 379; Hall v. Browder's Administrators, 4 How. 224; Hancock County v. State Hwy. Comm., 188 Miss. 158, 193 So. 808; Loeb v. Board of Trustees, Pearl River Junior College, 171 Miss. 467, 158 So. 333; Love v. Fidelity Deposit Co. of Maryland, 162 Miss. 532, 139 So. 387; Majure v. Johnson, 192 Miss. 810, 7 So.2d 545; Mississippi Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281; Partee v. Kortrecht, 54 Miss. 66; Powell v. State Tax Commission, 233 Miss. 185, 101 So.2d 350; State v. Cameron, 223 Miss. 50, 77 So.2d 716; State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566; State v. Tonella, 70 Miss. 701; Tucker v. Daniels (Miss.), 50 So.2d 896; Xidis v. City of Gulfport, 221 Miss. 79, 72 So.2d 153; Secs. 1109, 1490, 4696, 4697, 4769, 4818, 7716.30, 8038(c), 9023.33, 9220.33, Code 1942; Income Tax Regulations, Articles 153, 157; Griffith, Mississippi Chancery Practice (2d ed.), Sec. 288.
The appellant brought this suit against the appellee, seeking the issuance of a writ of mandamus to compel the appellee to back assess and collect certain income taxes which the appellant alleged had become due the State of Mississippi. The appellant sued in his individual capacity, alleging that he was a citizen and taxpayer of the State of Mississippi. The appellant charged that certain large taxpayers of the State had been permitted by the appellee to take deductions on their state income tax returns for the years 1955, 1956, and 1957 for amortization of defense facilities and accelerated depreciation; that said deductions were allowed under the provisions of Article 157 of Income Tax Regulations 11, which provides in part as follows:
"Charging of Depreciation. The depreciation deduction may be the identical figure claimed as such on the Federal Income Tax return for the same period. This shall include amortization of defense facilities and other acceleration of depreciation charges permitted or allowed for Federal Income Tax purposes. . . .
"In a situation where the sixty month period, authorized for charging off defense facilities, began prior to January 1, 1954, such sixty month period will be extended for State Income Tax purposes in order that the sum permitted as a deduction on the Federal report may be wholly amortized on State income tax returns."
The appellant further charged that said Article 157 was inconsistent with the income tax laws of the State of Mississippi, and was unauthorized and void, and that the deductions allowed thereunder had resulted in large sums of money of the lawful income tax revenues of the State of Mississippi not being assessed and collected. The appellant further charged that the appellee had failed and refused to back assess and collect the State income taxes remaining unpaid as a result of the alleged unlawful deductions, and that the deficiency in the income tax revenues of the State thereby created had resulted in the imposition of additional income taxes upon the appellant and numerous other taxpayers of the State, and that appellant was entitled to a writ of mandamus to compel the appellee to back assess and collect said unpaid income taxes in accordance with the income tax laws of the State of Mississippi. The claimed right of the appellant to bring this suit was asserted under the provisions of Section 1109 of Volume 1A Recompiled, of the Mississippi Code of 1942, which reads as follows:
"On the petition of the state, by its attorney-general or a district attorney, in any matter affecting the public interest, or on the petition of any private person who is interested, the writ of mandamus shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or ommission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law."
The appellee demurred to the appellant's petition upon the following grounds: (1) Under the statute granting the right to bring an action of mandamus on a question involving public interest, the suit must be brought either by the attorney general or the district attorney. (2) An action of mandamus may only be brought against a public official solely for the purpose of forcing him to take action of some kind on a matter, but not to dictate the type of action where discretion is involved. The allegations of the petition set forth that defendant has refused to assess and collect the additional income taxes, which petitioner alleges are due, and having so refused, this Court, by mandamus, cannot force defendant to change his decision, or direct his decision in a matter involving discretion. (3) Petitioner alleges this is a taxpayers' suit, but such suits must allege that they are brought for and on behalf of taxpayers and must invite other taxpayers to join therein, which petitioner does not do. (4) Petitioner alleges no right to bring this suit or to any damages suffered other than the same as suffered by other taxpayers of the public in general.
The trial court sustained the demurrer and dismissed the appellant's petition, and from this action of the court the appellant has appealed.
Numerous questions have been raised and argued in the briefs of counsel, but the question confronting us at the outset is whether or not the appellant has the right to bring and prosecute this action. We think this question must be answered in the negative and since such conclusion is decisive of the case, we confine ourselves to that question only. Under Code Section 1109, supra, only the attorney general or district attorney has the right to bring a mandamus action in any matter affecting the public interest. The appellant contends that he is a "private person who is interested" and is, therefore, vested with the right to bring this suit. According to the appellant's own admission, however, he has suffered no legal injury other than that suffered by any other of the citizens and taxpayers of the State, and, therefore, the matter here involved is one affecting the public interest. This has been definitely decided by this Court in the case of State ex rel. Trahan, et al. vs. Price, State Auditor, 168 Miss. 818, 151 So. 566, wherein the Court said:
"Mandamus is regulated by statute, and, in matters affecting the public interest, the action must be brought on the petition of the state by its Attorney General or a district attorney. It having been determined that the relators have suffered no legal injury other than that suffered by any other of the great body of the citizens and taxpayers of the state, or, in other words, that the matter is one affecting the public interest only, they are without right to maintain the action individually or in the name of the State, but such suit could only proceed in the name of the State by its attorney general or district attorney. The fact, if it be a fact, that the relators were unable to secure action in the name of the state by its Attorney-General or district attorney, does not aid them or give them any right to proceed otherwise in a mandamus proceeding." (Emphasis ours).
The decision in the case of State ex rel Trahan v. Price, State Auditor, supra, was followed and reaffirmed in the case of Birdsong, et al v. Grubbs, et al., 208 Miss. 123, 43 So.2d 878.
The appellant, however, relies upon the case of Wirt Adams, State Revenue Agent v. City of Clarksdale, et al., 95 Miss. 88, 48 So. 242. In that case, Wirt Adams, suing in his official capacity as State Revenue Agent, brought an action for mandamus to compel the municipal tax collector to collect assessments made by order of the State Revenue Agent on property that had escaped municipal taxation. The inapplicability of this decision, however, is immediately apparent when it is considered that the suit was not brought by Wirt Adams individually, but was brought in his official capacity as State Revenue Agent.
(Hn 1) Since the appellant alleges in his petition that the failure of the appellee to back assess the taxes hereinbefore referred to has created a deficiency resulting in the imposition of additional income taxes upon the appellant and other taxpayers of the State, it is clear that he has sustained no legal injury other than that suffered by any other of the citizens and taxpayers of the State. It is our conclusion, therefore, that the appellant was without right to bring this suit and that the trial judge committed no error in sustaining the appellee's demurrer. In view of this conclusion we do not pass upon the validity or invalidity of Article 157 of Regulations 11 of the State Income Tax Regulations which was rescinded as of January 1, 1958.
Affirmed.
McGehee, C.J., and Lee, Kyle and Arrington, JJ., concur.