*1
The contention is further made that under section 1671,
probatable
Code of
the claim was not
because it was
1930,
up
unliquidated damages
made
for
is no
a tort. There
position.
soug'ht
merit in that
un-
It is not
to recover
liquidated damages. The
the claim rea-
foundation of
compensation
support.
sonable
care and
Tarver v.
directly
Lindsey,
although
Reversed and here for Dunn Craig, Co. v. Collector. Const. (In May Suggestion Sept. Banc. of Error Overruled 1941. 1941.) (2d) No. 34595.] So. 166.
[1 *3 H. Eager, Trenholm, and J. & & Chambers Watkins Heidelberg Hat- Thompson, & Jackson, Roberts, all of Covington, Meridian, tiesburg, Snow & and Jacobson, appellant. *6 Gore, Creekmore & E. Jackson, W. Forrest B. appellee. Jackson, all Creekmore, *11 & Snow, Butler Travis, Lotterhos Stevens '& & Stevens, all Thomas Jackson, J. Tubb, At- West Point, torneys as Amici Curiae.
Argued orally by Eager Pat L.E. for Trenholm, appellant, Gore and Forrest Jackson, W. E. B. appellee.
McGehee, J., delivered the opinion of the court.
The suit is brought by the N. in appellee, Craig, Carl his official as capacity State Tax on behalf of Collector, Mississippi,
the of the Circuit Court of Hinds County, appellant, to collect from the Dunn Construction Company, gross by a tax it of on income received the % Highway representing from the State Commission, price contract for certain road construction work, paid was which such contractor installments period during various amounts to from March 24, July aggregating’ .the 14, 1938, sum inclusive, being tax the demand for the $54,032.39, thereon, 1% plus alleged damages, interest and to have been 10'% by levied Section 2-e of Laws of as upon every person continuing engaging amended, contracting, within this in the state business of and for privilege engaging in such business. alleged It in the amended declaration (cid:127) by amount due the state the defendant and other contrac- doing Highway tors work for the State Commission for gross performance tax on the income from the derived prior of their to March excess of 18, 1940, contracts is in January plaintiff requested that on $750,000; 7, 1941, by the Chairman of the State Tax that date to make an assessment of the tax due Commission letter
by Company; defendant Dunn Construction and that Commissioner has declined make such assessment or to collect due taxes other defendant, similarly gross contractors on re- situated, income prior day ceived to the 18th said March, 1940, re- quested. copy A of the letter to the Commissioner and reply of his are thereto made are asked exhibits, part pleading. be considered as a alleged January plain- It is further that on 11,1941, requested Attorney-General tiff state, his capacity join plaintiff official as such with officer, party litigant aas to enforce the collection of the taxes thus claimed to be pending. due in suits and other similar now request copy
This was also letter, of which appears is likewise made an that the from which exhibit, and Attorney already General was advised
697 given of the State Stone, reasons Mr. Chairman declining or col- assessment for to make the Commission, copy question, the a of Commissioner’s lect the tax in Attorney reply Tax Collector of the State to the Chief Attorney-General being as referred to in the letter to the having official to the latter. This been sent theretofore also declined to intervene. Chapter as of 119, 1934,
Section 2-h the Laws of said provides computing “In of that: amount amended, excepted tax from under this act, levied there shall gross gross proceeds of income of the business, or may be, as the case as is derived so much thereof sales, government from sales or the state United States Mississippi, departments of . its . .” institutions, provision, general In view of this found contained in the ‘‘ ’’ amending Sales Tax of Law, 119, 1934, Laws Chapters prior 90 and Laws it 91, 1932, seems departmental given 18, March 1940, construction the same the State Tax it Commission ex- was empted gross from tax “the income the business” “gross proceeds as well as when income sales,” government, was derived from the federal or state its de- partments and institutions, whether work done, part for sales made under such the first circumstances, quoted being’ sentence above from the statute sus- ceptible interpretation. of such The natural of result departmental per- construction was that the contractors forming depart- work under one contracts with prior ments of the state not did to the date aforesaid expense take into consideration this item of it add price bidding they contract when for the work, as had regard premiums course done in to the cost on liability performance required bonds connection with the execution of these contracts. At rate, should be said for the Chairman of the Com- State Tax January mission that after this court on held Compress the case of of Union v. Stone, Chairman, authority Miss. citing So. 49, 193 as for its views the Supreme decisions of new trend of the most recent constitutionality Court of the States as to United ques provision that the statute tax, such only exempting tax tion from had effect of gross income to the United States derived from sales Mississippi, not or to the Government, “gross pre income it had business,” from been *14 viously by proceeded to he Commissioner, construed interpret Attorney obtain letter General a from thus ing all then a memorandum to and issued decision, persons reading thereby, dated affected March 18, as follows: been that all income has held “Heretofore, from and the received Government United States departments Mississippi, State institutions, its and exempt. Supreme was result Now, as a Court’s opinion Attorney-General, persons decision and the of the any except liable for taxes Tax Law, levied Sales tangible selling may longer per property, those no exemption mitted an on from account’of income received the United States Government and the of Missis State departments sippi, its and institutions.” that he Also, declining advised Tax State Collector, when to make “It that has been the back-assessm.ent, consistent policy department, certainly of this since in the give collection court taxes, not to retroactive effect to new opinions Attorney-Gen or to new of the decisions, any more than eral, to new laws. We held have that inso far regard as this office was we would such concerned, rulings precisely regard and decisions as we would new legislative proceed and enactments, would to collect taxes conformity rulings, with such decisions and but with liability reference to future alone.” position Whether the above set forth is from a sound legal standpoint, policy or announces correct pursued should have been under the is not circumstances, precise for only question us to now pre- decide. The appeal sented for decision on this is whether the State any right Tax authority Collector has or under the law right, far so snch or whether file maintain this suit, to exclusively in the Chairman is vested as he is concerned, set forth have We Tax Commission. they pleadings for reason amended status allege Tax Commission failure refusal premises, Attorney-General act in the Chairman as original ground to that stated an additional plaintiff we have sue; entitle the declaration good premise saying done a for that neither so as right that behalf can defeat the faith of these officials if he is to maintain suit, the State Collector good nor can lack authorized law to do so, alleged if none faith —and the such is such —create lawmaking body with- in its wisdom seen fit to has power. hold the alleged right
The file and of the State Tax Collector to challenged maintain the de- suit in the trial court was having and the murrer, same been defend- overruled the plead ant declined to with the result that a final further, judgment was entered the amount sued for. question presented statutory
The us one of con- *15 important It struction. therefore becomes to review in general way history legislation a dealing the of the with power say pass- the State Tax and to in Collector, 1924, ing prior year powers pre- to the of his decessor agent, office, state to institute revenue constantly enlarged through years suits til been had un- finally pronounced policy, there was a reversal of everyone sympathy well known to whether in with change legislation action or not, and this in the trend of resulted in the pending abatement of certain abol- suits, ishment of that office and the creation of the office of Chapter State Tax Collector, Laws of 286, marked 1926, powers, a among curtailment of notable which re- right strictions was the denial that act of to his sue to collect income and inheritance taxes, which was re- Chapter Extraordinary affirmed 71, of the Laws Ses- revoking sion of powers also 1928, other to assumed have brought granted. were These statutes been theretofore Chapter and Section 6986 Code 1930, forward powers defining Collector, of the State Tax thereof, penalties right the viola- for for excluded also the sue provided being therein, it tion of among anti-trust laws, power things, it other that: have “He shall proceed hy proper duty his suit in the court shall be companies against persons, corporations, associa- all unpaid any persons past for all taxes of due and tions county, municipality, whether of the whatever, state, kind drainage, taxing any sub-divi- levee or other district, obligations past sion and for all due and indebt- thereof, any any owing edness of due and to them or character except penalties of the anti-trust them, for violation except inheritance laws and income and taxes.” When exceptions right these to his to sue were first enacted, especially the one as to inheritance income and taxes, placed the administration of which been had under the jurisdiction of the Chairman of the Tax State Commis- wholly part tax sion, a sales unknown as was tax system significant It this state. is however, note, powers that the first time the dealt with the of the Collector, successor to the state rev- agent, enue after income inheritance laws were passed, excluded of that official to sue those taxes. important history
It is also trace “Sales Tax Law” the first of which itself, Laws provided of 1930, Section 16 of which that the adminis tration of the law was vested in should exercised except the Tax as otherwise Commission, therein provided, any provi and that the enforcement of sions thereof in courts “shall be state jurisdiction under exclusive of the Tax Commission . . .” appearing House Concurrent Resolution at *16 page whereby 161 of the Code of 1930, the Code of 1930 adopted, was was construed court case the. v. Hunt 172 Miss. Hunt, So. 732, 161 mean 119, to that the
701
passed
at
the 1930 session of
statutes
provisions
any
supercede
Code
should
adopted
But,
if in conflict
at that
therewith.
session,
legislative
judicial
construction of
aside from
purpose, it
true that
is a
intent and
is also
where there
special
particularly
dealing
specifically with
statute
part
subject
general
a
matter
within a
embraced
ordinarily
regarded
special
statute,
will
be
statute
engrafted
exception
qualification
upon
general
an
ap
statute
the extent that the latter
is
conflict or in
parent
Lowry,
conflict with the former.
v.
White
Insur
ance
162
Commissioner,
874;
Miss.
139 So.
Greaves
751,
County,
Gully
v. Hinds
166
89,
900;
Miss.
145
v.
So.
Company,
Lumbermen’s Mutual Cas.
Applying the above rule of it would seem construction, provision Chapter clear that the of Section Laws 16, 90, supra, whereby of 1930, the administration Sales Tax Law was vested in the Tax Commission and the en- any provisions forcement of thereof in required courts of the state was under its exclusive jurisdiction, precedence general would take over the supra, Section 6986 statute, of the Code of which 1930, powers authority defines limits of the State past-due Tax Collector to sue for taxes. Most assured- ly, a codifier of the statutes would not have hesitated to along include the sales tax, with income and inheritance penalties taxes for the violation of the anti-trust exception in the laws, supra, contained in Section right as to the of the State Tax Collector to if he sue, codifying had subsequent been pas- that statute to the sage of the Sales Tax Law embodied in said Laws of 1930. the rule Furthermore, is well established “where a pro- statute creates a new and also remedy vides ordinarily enforcement, its held remedy that such is exclusive.” 1 C. J. 989. See, also, page C. J. S., section Actions, 974, where it is said: *17 liability right or or creates a a code statute new “"Where prior statutes, not exist at common law under that did remedy specific provides the enforcement a for and also statutory remedy g'eneral ex- rule is as a such thereof, by particularly it so when is denominated clusive, terms of the statute.” by placed Tax Collec-
Much reliance is also State upon 3122 of of which makes 1930, tor every Section the Code by being tax it
lawful a recoverable action, debt contended that this when in connection construed statute, power grants with Section 6986of unto him the said Code, by proceed duty and makes it his to to suit collect the past-due unpaid question; it here to but, and taxes is general supra, be observed that since Section is a 3122, rule of construction stated statute, same hereinbefore applied give precedence special be to so to is to the of statute, Laws which also character- past-due by a izes tax as a debt recoverable thereunder provides action, and administration of the act provision and enforcement of its of the courts jurisdiction of the state shall be under the exclusive general the Tax Commission. Moreover, statute,. upon supra, Section 3122, Tax which Collector right part by provides, relies for his to sue in this case, express its terms, that income and inheritance taxes are among included those made a debt recoverable action, they excepted expressly and are then in Section 6986 of supra, defining powers the Code, of the State Tax past-due Collector to sue for taxes. It will therefore readily seen that the fact the tax for sued in the case at bar is made a debt recoverable action under the imposed terms of the statutes which it is not of it- self determinative State Tax Collector to sue. special
The being above statute referred to, the so- called “Sales Act” of which became a law approval produced without only the Governor, quarter about a of a million dollars additional revenue general per according information matters annum, system; present history pertaining revenue our recurring wholly inadequate finan- solve the was problems take then exist- cial of the state. To care necessary ing became million dollars, deficit several exemptions of 1932 to lower the formerly provided increase the either for, rates ways something find else to tax or devise various *18 taxing things. Thereupon, of there means the same was Chapter by Chapter enacted as of 90, Laws 91, amended “Emergency known as the Revenue Act of 1932,” 1932, bring* in of order to economic order out financial chaos. legislation This was able weather the of a storm state- protest, emergency expire wide as an measure to on June recognized something* because it 30,1934, was that had to outstanding past-due obligations be done to meet and and though legislation save the credit of the state, even such objectionable principle. was then considered to be Can bringing it be doubted that the the former act so forward of Section 16 of the as to vest administration of the proposed tax sales law in the Chairman of the Tax Commission, which was theretofore vested in the Tax giving Commission as a whole, and himto the exclusive jurisdiction any provisions of enforcement of its potent of the courts of the awas most in- state, inducing fluence in the to enact this law? granted can Or, it be said that when the was agents his representatives, Commissioner, and and to them alone, to if examine, need be, books, records, papers taxpayer and of necessary so as to obtain data for the assessment of the and for the tax, enforce- ment of its collection courts, was ever intended that the State- power Tax not clothed Collector, with such possessed or of information such an examination would disclose, should be judg- allowed to overrule the ment of the Commissioner as to whether the assessment against brought should be made taxpayer? suit To differently, state it passed by would this which law, extremely margin, which, of and success narrow
an necessarily legislation, experiment de- in revenue as an upon a manner as to pended in such administration its cooperation taxpayer, ever been have of secure the responsibility for enforce- its had not the at all enacted jurisdiction placed the exclusive under ment been Chapter duty? charged of 168, Code with official powers defining and Collector, of the State 1930, giving investigate right only ac- books, him the depositories officers of all fiscal and and vouchers counts municipality county, every levee and state, every taxing to examine districts kind, board of the various boards and allowances records, minutes mayor municipalities, supervisors, and aldermen power drainage all boards in to make other boards and money public under the laws of the state, allowances enlarge powers those when the not amended so as was passed; great Emergency Act of 1932 Revenue was act all taxes then levied was the need that we that nowhere in Sales should be find collected, by Chapter Tax Law of as amended Laws 119, Laws of and as further amended *19 any provi- and Laws of there 1938, is pertain- any power giving sion to the State Tax Collector papers ing an examination of the records and to books, corporation private taxpayer, a or of the whether firm, perform imposing upon any duty him to individual, provided by tax for collection of these statutes. the legislature, withholding’ It that in from manifest the is and in the State Tax from his successors Collector, then power operating the ex- on commission a office, basis, papers taxpayer records of for amine the books, might purpose ascertaining whether be or not there contemplated some foundation for institution of a that he suit to collect a intended should have tax, sales by nothing with other to do the collection thereof suit or any power that with to dis- nor he should vested wise, processes orderly of the Tax turb the State Commission
705
law for the
in
administration of the
assessment and
its
by
imposed
collection of the taxes
Tax Law.
Sales
position
is
But it
as we
of the
said,
understand
he
State Tax
that it is not essential that
should
Collector,
given
have been
to examine
records
the books,
papers
taxpayers,
filing
advance
suit,
might
provisions
order
he
be able to
enforce
may
taxpayer
courts;
the Sales Tax
in the
that the
Act
hearing
citing
have his
in the court when
the case
sued,
Nickey
v. State, Miss.
So.
650, 145
So. 859,
involving
question
taxpayer
But in order to settle the matter of who should act premises, preclude and to the contention that some other officercould Section 16 intervene, of Tax Sales Law of 1932 was enacted to read as follows: ‘‘The administration of this Act is vested in and shall be exercised the Chairman of the Com- except mission, provided, as otherwise herein and the *20 any provisions enforcement of of the any of this Act in of the courts of the State shall be under the exclusive
jurisdiction of the of the Tax Commis- Chairman State may require through sion who act the assistance of and any prosecuting attorney any county, of or district attorney, any attorney may or for Commission, employ special with the assent of the counsel Governor, any county prosecuting attorney, the com- aid pensation only paid upon by of whom shall fixed be. approval attorney Governor; but the district any prosecuting attorney county of shall receive no compensation enforcing fees or for services rendered salary paid this inAct addition to the such officer.The appoint, Chairman of the State Tax as Commission shall stenographers agents, such author- needed, clerks and as by perform ized who serve shall under law, him, shall such may required, duties as not inconsistent with Act, this hereby and are authorized act for the Commissioner as may prescribe provided agent he and as herein. Each such execute a bond in the sum of shall Five Thousand dollars discharge ($5,000.00) for the faithful his All of duties. agents, may stenographers of such clerks be re- moved the Chairman of the State Tax Commission judge. of which the shall be final cause Commissioner provisions “In case violation of Act prosecute may Commissioner decline for the first of- judgment if in his fense, such violation is not wilful or flagrant.” Chapter
This section was amended Laws 91, 1932, attorney so include as to for the Commission provisions by Chapter of Section later 16, 119, Laws by Chapter as re-enacted 158, Laws 1936, and Attorney- 113, Laws of so as to include the among upon General mentioned in those said Section 16 might whom the Chairman Commission legal any call for services in the enforcement of of provisions of the act in courts state, had been done required Section of the Acts of which represent litigation grow- he the state in all ing provisions out of the and so act, that Section *21 provide that these officials so as theretofore 16 would legal upon should receive render such services to called paid compensation the in addition to salaries no or fees pur- it was the evident words, In other to such officers. legislature emergency pose that taxes should the these of treasury impend- go then the to meet the crisis into state any ing, deductions of a commission without 20% the collection thereof. This determination on the for part pervading legislature, the as it does the entire
of opinion prominent ignored, to be and in our is is too act, plain This to doubt. Section 16 in the too admit of Sales is as found its amended, Tax Law of enacted in language 1938; exact of Section Laws upon imposing privi- tax Tax,” known as the “Use any using lege tangible within this state article of personal property purchased produced at retail, manu- or It outside of the state. will factured therefore be seen that the requirement from time has time to dealt with the any pro-
that “the enforcement of of the any act in visions be this the courts of the state shall jurisdiction exclusive under the of the chairman of language tax if commission,” state failed express legislative the first instance real intent, changing then the been lawmakers have derelict in not limiting verbiage express meaning so as intended. interpretation
In view of the rule of stat- words in common use are utes, to be construed in their plain ordinary signification, natural, is it unneces- sary previous quote that we cite court decisions or given by lexicographers definitions to show that jurisdiction” precludes words “exclusive the idea of co- ordinary speech ; existence or that in people, of the possessed means exclusion of others. urged, It is however, that this section of the Sales Tax apply only prosecutions Law was intended to in the criminal courts. it will But, be noted that the enforce- any provisions ment of the act in chancery (including where state courts courts conducted) placed prosecutions are under no criminal jurisdiction of the Chairman the exclusive interpretation con- if the Tax Commission. Moreover, adopted, State Tax Collector should tended superfluous provision wholly we have the would attorney prosecuting attorney general, district “the attorney any county compensa- receive fees or shall no enforcing tion for rendered in act in addi- services *22 paid salary to such since we cannot officer,” tion to the thought any that ascribe to the the of these charge compensation extra officers would assume to prosecution their in the of criminal cases for services they salary paid by fixed law. which are an annual though it that the decision in Even be said under Stages Capitol et al. ex Co., v. State rel. Inc., Hewitt, Atty., 157 128 a or Dist. Miss. So. district county attorney cannot act tó the exclusion of the At- torney-General, independent of his own volition, public a matter of state-wide would not interest, jurisdiction the defeat exclusive of the to Commissioner provisions question any enforce the of the statute acting through of courts, the' such officers within the proper spheres authority, respectively, of their in their jurisdiction. territorial Chapter
It that 11 is also contended Section of 119,' gives amended, Laws of 1934, as the Collector right provides the to because it sue, tax due the unpaid provisions under the of act the shall con- stitute debt it state; due'the constitute shall a lien upon property taxpayer; may that the same by appropriate be collected an action in debt, or other judicial proceedings; and thát these remedies are in ad- existing dition all to other remedies. deem We it suffi- say cient to in answer to that contention that it is also Chapter true that the tax income law, 124, Code of 1930, personal taxpayer, makes the income tax a debt of the re- brought by Attorney an coverable action General Commissioner, of the instance at state, property, upon the Com- since his tax a lien makes the a warrant directed issue is missioner authorized commanding county any him of the state sheriff of property personal levy upon real and and sell the payment is taxpayer that it same; for the Attorney-General duty under Section also the act in 16 of under 1930; Section 3673, Code any any arising question, suit out of or to institute defend affecting laws act or order of the Tax Commission being stat- he clothed such state, and revenues authority upon such ute with all conferred such as is inheritance tax officer at common law. Likewise, executor, makes an law, the Code duty pay it and others whose inherit- administrator, imposed, ance liable for the tax taxes, recoverable Attorney-General brought by action of the state, attorney county attorney, district the instance of at the Commissioner, and the tax a lien for three makes years upon gross estate of the decedent. Neverthe- expressly these income less, and inheritance taxes are as hereinbefore from excluded, shown, State Tax Collector then to sue. How can be said that *23 these features of the Sales Tax Law an intention indicate legislature grant the to unto the Tax State Collector right they appear the to when it seen in sue is other imposing statutes for the which taxes, and collection of he is denied the to sue? provision
As to the contained said Section 11 of said Chapter 119, Laws of to the amended, effect that the remedies for the collection tax of the be in ad- “shall ’ ’ existing existing opin- dition to all other are of the remedies, we ion that the other remedies referred to are those Chapter whereby contained in 90 of the Laws of given authority Commissioner was to issue warrant un- directing der certain circumstances to sheriff enforce provided the collection of the tax sales therein etc. for, it is said that Section 14 of said Then, 119,Laws part supra, an intention on the of the discloses permit bring a the State Tax Collector to provisions for the the act for suit enforcement of the prevents the reason that it of the Tax members State agents, stenographers, or from its clerks Commission, gross proceeds divulging gross or sales, income, paid any person, except amount of tax to members employees and of the Tax in- State Commission and the department purpose checking, come tax thereof for the comparing correcting or to the Governor or returns, Attorney representative any legal to the or other General, any respect of the state in action amount of tax provisions being due under the of the contended act, any legal representative that the words “or other of the person state” can have reference to other no than the determining State Tax Collector. In what meant quoted, kept the reference above it must mind that provides the statute elsewhere that the Chairman of may require Commission the assistance of and through only Attorney act cuting attorney prose- not General, but any county, any attorney, or district' any attorney any special or for the coun- Commission, employed by sel the Commissioner with the assent of the attorneys Governor, above mentioned are only legal representatives mentioned in the act through pro- which the Commissioner is authorized to provisions ceed courts of the enforce the of the act in ‘‘ legal state. the clause Moreover, or other representatives” immediately following is found “attorney general,” words in both the income in- Chapters heritance tax statutes, and 125 of the Code, respectively, requiring secrecy the same above referred prohibit to, divulging which of information ob- except tained the Commission, that the same is to be subject inspection Attorney-General “or legal representatives state,” other and most as- *24 suredly the State Tax legal Collector is not the “other the income to in representative the state” referred perform to no duties since has he laws, and inheritance regard powers thereto. exercise support urged Collec- Finally, Tax of the State isit alleged right tax statutes the sales that to sue tor’s and will it to the to leave construed should not be so as Tax of the State man—the Chairman discretion of one thereun- Commissi tax levied to whether or not a on—as power granting of such collected; der shall be that legislature. The could never been intended have argument may applied, to the enforce- however, same involving tax the income inheritance laws, ment of large they each due the staté as do sums of revenue expressly yet year, declared has statutory repeated ex- taxes are enactments that these may cepted from those for which the State Tax Collector sue hereinbefore the administration shown. Moreover, of most all of the new that been other forms of taxes have imposed during years placed recent has been under his jurisdiction, until the made the Tax Com- collections year ending mission for the fiscal reached June 30, 1940, approximately according the sum of a $13,300,000 published official statement from the Auditor’s appearing public press days ago, office in the a few may suggest very legislature may likely which unwisely responsibility placing not have acted juris- the enforcement of these laws under the exclusive department. diction of the chairman of Responding legisla- further to the contention that the could ture never have intended for the to have been state remedy left without a in the event the Chairman of arbitrarily State Tax Commission should to assess refuse any and collect tax due under the Sales or for Laws, may other reason failed to do so, be observed that Attorney-General bring would have the a payment suit to enforce the question, of the tax in if in judgment public his require, interest should so since possessed he is power constitutional officer of all the *25 712
authority in in common and, such an officialat law, vested by statute, have been on him such conferred addition, right including the “to and maintain conduct, institute, necessary all of the for the of the laws suits enforcement protection pub- preservation the of and of the state, order, rights.” Capitol Stages rel., lic ex v. State Co., Inc., supra [157 128 2 and Secs. 763], Miss. So. R. C. L., Pages 4 and is the This not to 915-17. confined applies all enforcement of criminal but to the also laws, public any matters of interest in of courts state-wide legislature of the state. to within As could, whether constitutional vest in the Chairman of the State bounds, regard jurisdiction Tax in Commission exclusive provisions any of enforcement of the Sales any Laws in to the the courts state exclusion Attorney involved, is not it is General here and unnecessary question therefore we decide that in this say, authority case. Sufficeit to did have to vest jurisdiction such in the Chairman the State Tax Com- any mission exclusion of other official authorized bring past-due unpaid law to suits to collect taxes authority statutory solely whose is derived from enact- distinguished ment, as from that conferred the Consti- tution itself. precise question
On account the fact that the here presented involved is to the court for the time first appeal, give this have we endeavored case that importance consideration which we think its demands; clearly opinion and we are the demurrer to the amended declaration of the State Tax Collector should have been sustained suit dismissed. judgment appellant.
Reversed, and here for the Specially Concurring Opinion. specially opinion.
Anderson, J.,
concurring
delivered a
majority opinion
I concur in the
dismissing
suit
this
upon
ground
but
a different
from that stated therein.
Under
pow-
Constitution the
was without
than
other
the state
er to
Attorney-General
on
confer
officer
bring
authority
the exclusive
legis-
Perhaps state.
on behalf of the
of suit
character
to be
power
officer
on another
lature
confer such
could
supervision
conjunction
under the
with
exercised
and
Attorney-General.
control
Attorney-General
office
ais
constitutional
The office
language:
“There
in this
Section
is
this state.
attorney-general
time
at
shall
elected
the same
be an
governor
whose
elected,
the same manner as
compensation
years
*26
term
be
of officeshall
four
and whose
by
qualifications
attor-
the
shall
for
fixed
The
be
law.
prescribed
ney-general
be
shall
the same as herein
chancery
judges of
circuit
courts.”
the
and
prescribed
It will be observed that
the Constitution
Attorney
qualifications
the
but not his
of the
General
powers.
Attorney-General was
of
duties and
The office
a common-law office.
creation of
officetherefore
The
the
by
powers,
prescribing
the Constitution
his
without
implication adopted
powers, none of
common-law
his
legislature.
away
which can
him
the
be taken
from
Key,
Capitol Stages,
Undoubtedly a a matter suit this character involves of state-wide It an on' of all the interest. action behalf public. attorney general It is therefore one which the may alone has the be to control. It that under the (cid:127) power Constitution the would have the right upon confer the some officer with other state supervision consent and under the At- and control torney-General. right, The not however, exclusive could be conferred elsewhere. principles of
However, these constitutional law have application public only no suits where local interests distinguished are from involved, state-wide interests. power bring may The such suits and has been to a large attorneys county on *27 conferred district extent, and attorneys, might legislative by and extended act to powers Attorney- other officers. The common-law of the General did not include such suits. This true, is not how- ever, involving as suits of this character state-wide interest. All such suits under the Constitution must be brought Attorney either General or some officer conjunction supervision in with him, and under his control; this of course both the includes State Tax Collector Chairman of the State Tax Commis- (and appears sion. The result would be it that such a very desirable) result is that there would be a constitu- governing litiga- tional state officer of all control such authority conflicting with end of That would be the tion. subject. to the reference Suggestion Error.
On sug- opinion on of the court Smith, delivered J.,C. gestion of error. suggestion overruling The of error.
I this concur question 16, is not sole Chapter in the case whether or Section appel- withdraws from Laws right bring with- lee this suit. Whether also Attorney-General right not draws such from the is any opinion expressed is thereon court, before appears binding A mere dictum not one. conflict on legis- right in the decisions Court to the of this under 103 of the to define lature, Constitution, Section powers Attorney-General deprive him as to so any power might con- law, he have at common which only right can be vel flict case where resolved this necessarily non of the there- I, involved. express opinion on of the effect of statute no fore, Attorney legal pro- General institute ceedings authorized it.
Shepherd et al. v. Cox (In April 14, Suggestion Banc. 1941. of Error Overruled Oct. 1941.) (2d) So. 495. No.
[1 34459.]