2 So. 2d 806 | Miss. | 1941
Lead Opinion
Section 221, Chap. 120, Laws 1940, imposed a state-wide privilege tax for each county of $50 upon each transient vendor, or dealer, of cigarettes, cigars and other tobaccos, and provided that the state tax commissioner "shall issue transient vendor licenses in the name of the firm operating the business, and further show the name of the agent who operates the vehicle from which the merchandise is sold and delivered." The American Tobacco Company had among its agents, who were transient vendors for the company, the two complainants in this case.
The State Tax Commissioner construed the provision quoted above as imposing the tax upon the firm and issued the privilege licenses to the American Tobacco Company and named in each license the particular agent or transient vendor for whom the particular license was issued. *432 The licenses were so issued in respect to the agents who are the complainants herein.
After this Court decided in Craig v. Brown Williamson Tobacco Corp.,
It is immaterial who pays a particular privilege tax so long as it is paid when due, as was done in this case; and, under the cited section, it is immaterial that the formal recitals of the privilege-tax license was that it was issued to the employer firm or company for the agent named therein, instead of being issued to the agent himself and naming therein the firm or company for whom he is thereby licensed to do the work. The purpose of the statute was that there should be a joint identification of the agent and his employer in the license, and this having been done, the State is not to be permitted to again collect the tax, with penalties, upon what at best is a technicality, unsupported by substantial merit.
But neither the company nor the agents paid any privilege taxes to the municipalities within the counties designated in the licenses, and the remaining question is whether the agents are liable for municipal privilege taxes. Beginning with the Privilege Tax Code of 1930, Laws 1930, ch. 88, and through every privilege tax revision since that time, privilege taxes have been classified either as state-wide privilege taxes or simply as privilege taxes; and throughout all this time there has been a provision such as contained in Section 264, Chap. 120, Laws 1940, "that no municipality shall levy any tax on any privilege which has been duly licensed for state-wide *433 purposes as herein provided." Thus there has become a fixed legislative policy to designate privilege taxes, in certain of each of the sections levying them, as state-wide, in which case municipalities are barred, and in the other sections, each of them, to designate the tax as simply a privilege tax upon the particular business dealt with in that section, in which cases, as the ordinary rule, municipalities may collect fifty per cent. of the specified state tax.
In all the privilege tax laws dealing with transient vendors or dealers enacted prior to Chapter 120, Laws 1940, the tax had been imposed upon the business dealt with simply as a privilege tax, and these laws had carried the provision that municipalities could also impose the tax, in its proper proportion, upon that business. But for the first time when that section was brought forward as Section 221, Chap. 120, Laws 1940, there was inserted in the opening sentence of the section the words that the tax thereby imposed was a state-wide tax. Nevertheless, the old provision that the municipalities could also collect was left in the section, and, as we have already mentioned and quoted, Section 264 at the concluding portion of the chapter, expressly negatived the authority of municipalities to levy a tax on state-wide privilege taxes.
With these contradictory and blundering provisions, the court has striven to arrive at some dependable conclusion as to what was the legislative intent. The taxpayers have urged that inasmuch as the legislature deliberately inserted the designation at the very opening of the section to the effect that the tax was thenceforth to be considered as a state-wide tax, it was a mere inadvertence that the provision in regard to municipalities was not stricken out, and that in any event since both cannot stand together, the last expression of the legislature which is embodied in Section 264 must prevail, citing among others, Coker v. Wilkinson,
The tax collector contends that the provisions of Section 264 are general in their nature, while the concluding paragraph of Section 221, allowing municipalities also to collect the tax, is a particular enactment dealing with that particular section, and, therefore, must be taken as excepted from the general language of Section 264 — citing, among others, Greaves v. Hinds County,
Other arguments and other rules of construction are pressed by each side. Rules of construction are valuable only as aids to the court in arriving at the legislative intent; but when we have applied all of them in the situation here before us, candor must compel us to say that we cannot confidently determine what was meant, and we, therefore, resolve the doubt in favor of the taxpayer — taxation is never to be allowed under a statute of doubtful interpretation. Pan-American Petroleum Corp. v. Miller,
Affirmed.
Dissenting Opinion
"Section 595. Provided always that the interpretation is reasonable and not in conflict with the legislative intent, it is a cardinal rule of construction of statutes that effect must be given, if possible, to the whole statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions *436 so as to make them consistent, harmonious, and sensible. Just as an interpretation which gives effect to the statute will be chosen instead of one which defeats it, so an interpretation which gives effect to the entire language will be selected as against one which does not."
"Section 596. . . . General and special provisions in a statute should stand together, if possible, but where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part the particular provisions must govern, unless the statute as a whole clearly shows the contrary intention and they must be given effect notwithstanding the general provision is broad enough to include the subject to which the particular provisions relate. The particular provision should be regarded as an exception to the general provision so that both may be given effect."
These rules have been many times applied by this Court when construing a single statute or two or more statutes in pari materia as will appear from Madison County v. Stewart,
In White v. Lowry, supra [
It follows, therefore, that the proviso in Section 264, of Chapter 120, Laws of 1940, because of the provision of Section 221 here under consideration, must be applied as if it read as follows: "Provided, however, that no municipality shall levy any tax on any privilege which has been duly licensed for state-wide purposes as herein provided, except upon privileges taxed by Section 221 of this chapter."
A cursory examination of the legislative history of Section 221, Chapter 120, Laws of 1940, will disclose that the application of this rule of construction carries out the legislative intent as expressed therein.
Since the adoption of the Code of 1880 (Section 585 thereof), a privilege tax has been imposed on transient vendors of merchandise with permission to municipalities to also impose a tax thereon, unless Section 221, Chapter 120, Laws of 1940, forbids. The designation of some of the privilege taxes as "state-wide taxes" first appeared in Chapter 88, Laws of 1930, and was manifestly for the purpose of designating what privilege taxes should be collected by the state tax commission instead of by the county tax collector and on which municipalities were forbidden to levy a tax. Taxes so designated were mainly on privileges the tax on which had theretofore been collected by the state auditor set forth in Section 3894, Code of 1906. Chapter 20 of the Extraordinary Session of 1935 brought forward these provisions of Chapter 88, Laws of 1930. Section 225 thereof, which imposes a license on transient vendors, designates it as "a state tax for each county" and expressly permits municipalities to also tax the privilege. Section 221, Chapter 120, Laws of 1940, here under consideration, is practically a rescript of Section 225, Chapter 20, Laws of 1935, Ex. Sess., except that the designation therein of the tax as "a state tax for each county" was changed to "a state-wide tax for each county," the permission to municipalities to *438 tax the privilege being retained as hereinbefore set forth. The tax imposed by Section 221, Chapter 120, Laws of 1940, must be paid for each county in which the taxpayer desires to do business, and is state-wide only when the taxpayer elects to pay the tax for every county in the state. Such also was the effect of Section 225, Chapter 20, Laws of 1935, Ex. Sess. Consequently, no distinction between the two sections appears that would reasonably have caused the legislature to permit municipalities to tax the privilege taxed by the latter, but to forbid it to tax the privilege taxed by the former.
It follows from the foregoing views that I am of the opinion that the state tax collector has the right to collect the municipal privilege taxes here involved. I concur in the holding that the appellees are not liable for the state taxes involved.