Robertson v. F. Goodman Dry Goods Co.

76 So. 149 | Miss. | 1917

Lead Opinion

Stevens, J.,

delivered the opinion of the court.

While there are separate briefs on the part of the appellees in the two cases above styled, both cases were submitted together in the oral arguments, and both involve the same law points. In the Goodman Dry Goods Company case the state revenue agent, for the state and "the Yazoo-Mississippi Delta levee district, exhibited a bill in the chancery court of LeFlore county alleging thát the F. Goodman Dry Goods Company is a mercantile establishment in the city of Greenwood; that on and .after the 1st day of May, 1913, 1914, 1915, and 1916, the defendant company operated for each year a retail mercantile establishment with a stock of goods exceeding twenty thousand dollars for each of the years mentioned, and was accordingly liable to both the state and levee -district for an annual tax of sixty dollars as a license to •do business; that the defendant had procured a license for each of the years mentioned by paying only thirty dollars to the state and thirty dollars to the levee district; that the defendant had exercised.the privilege of operating the business on the license granted; that the licenses were procured either by mistake or fraud, in that the defendant was required to make application un•der oath, and knowingly made a false statement as to the amount of his stock, and represented that the stock would sometimes exceed seven thousand five hundred •dollars, but not. over ten thousand dollars, in value, whereas, if the written application had stated the facts "truthfully, it would have appeared that the stock some-dimes exceeded twenty thousand dollars, but never over "twenty-five thousand dollars, during the year. It is charged that the license was obtained by paying an insufficient price; that the payment of an insftffieient price was equivalent to paying nothing at all, and the prayer -of the bill is for the full amount of the license based upon the larger valuation of the stock as charged in the bill. The bill further represents that due notice was given the defendant that it was due the state and levee board each a balance of thirty dollars for each of the years mentioned, and payment- was demanded for this balance, but the defendant declined to pay the same. There is an alternative prayer in the bill that, if the court should be of the opinion that the defendant was liable for only a balance of thirty dollars per annum, the decree should be accordingly. A general demurrer was interposed to the bill, and upon hearing of the demurrer the chancellor entered a decree reciting that “there is no -equity on the face of said bill, and that complainant has ■a plain and complete remedy at law, and the cause should be transferred to the circuit court,” and accordingly sustained the demurrer and embraced in the decree an order transferring the cause to the circuit court in accordance with section 162 of the Constitution.

The bill of complaint exhibited by the revenue agent against the Greenwood Lumber Company charges that the defendant company was a corporation domiciled in the city of Greenwood, where it had been carrying on the business and exercising the privielges of a lumber yard and dealer in lumber continuously from the 1st -day of May, 1911, to and including the 1st day of May, 1917, and as such dealer in lumber had an annual sale of lumber from May to May exceeding one-half million ■feet, and by virtue of the statute became and was liable to pay a privilege license annually in the sum of one hundred dollars to the state and an equal amount to the levee district. It is charged that the defendant conducted business without paying any privilege whatever, and the prayer of the bill is for a personal decree for double the amount of the annual tax for the use of the state and the tax plus ten per cent, for the use of the levee district. The only difference between the two bills of complaint, so far as jurisdiction is concerned, is that the bill against Goodman Dry Goods Company charges that the defendant procured an annual license either by mistake or by fraud, whereas the bill against the Greenwood Lumber Company admittedly presents purely an action for the recovery of a debt. In each case the demurrer to the bill was sustained, and the cause ordered transferred to the circuit court. .

Counsel for appellant frankly admits that the main purpose of this appeal- is to test the right of the state revenue agent to choose his forum. It is further contended that the chancellor erred in refusing to take jurisdiction of the hill against the F. Goodman Dry Goods. Company because of the charges of fraud therein. But, while the bill in this case in general language “prays for all necessary commissioners and interlocutory orders- and decrees,” it does not show the necessity for an accounting, or for the appointment of a commissioner or master, or for the award of any other well-recognized equitable relief. The only decree the chancellor could render on final hearing in event he should entertain jurisdiction would be a decree adjudging that the defendant pay a fixed amount of money, a simple monetary judgment. It is frankly conceded by learned counsel for appellant that the bill against the Greenwood Lumber Company “is a pure declaration in chancery.” It is contended in both cases, however, that the chancery court should have assumed jurisdiction under section 4738, Code of 1906, which provides that the state revenue agent “may sue at law or in equity.”

Inasmuch as the statute relied on should be read as a whole, we here give it in full:

“The state revenue agent may appoint a sufficient number of deputies. He shall have power and it shall be his duty to proceed by suit in the proper court against all officers, county contractors, persons, corporations, companies, associations of persons for all past due and unpaid taxes of any kind whatever, for all penalties or forfeitures, for all past due obligations and indebtedness of any character whatever owing to the state or any county, municipality or levee board, and for damages growing out of the violation of any contract with the state or any county, municipality, or levee board, and shall have a right of action and may sue at law or in equity in all such cases where the state or any county, municipality or levee board, has the right of action or may sue. And in all cases of valuation or ownership of property which has escaped taxation, may have subpoenaed witnesses to testify before the board of supervisors, board of mayor and aldermen or levee hoard.”

Counsel argue that the present statute was designed to increase or enlarge the powers conferred on the revenue agent by section 4190, Code of 1892, and that now the'revenue agent may choose his forum “as he may find the pulse of the locality; ’ ’ that in those counties in which the people look upon the revenue agent as belonging to “publicans and sinners” this official should be allowed to enter the friendly -doors of a court-of equity, and in those communities where the jurors are in sympathy with the demands of the agent he should have the right of trial by jury. It is contended that our statute confers concurrent jurisdiction on both the chancery and circuit courts, and that the revenue agent can sue in either court. Section 162 of the Constitution provides :

“All causes that may be brought, in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circnit court.”

The case of Murphy v. Meridian, 103 Miss. 110, 60 So. 48, held expressly that this section of the Constitution is mandatory. The court by Cook, J., said:

“The complainant by his bill makes a case wherein the circuit court has exclusive jurisdiction; and, when the chancery court decided to decline jurisdiction, section 162 is mandatory, and the chancery court should have transferred the cause to the circuit court for trial. ’ ’

So it is that, if the bills of complaint here under review state purely a common-law action, and section 4738 of the Code was not designed to authorize the revenue agent to bring such an action in a court of equity, the chancellor was eminently correct when he sustained the demurrers and ordered the causes to be transferred to the proper forum. In our opinion, section 4738 is not susceptible of the construction which appellant attempts to place upon it. It expressly provides that the-revenue agent “shall have power and it shall be his duty to proceed by suit in the proper court. ” It is true that the statute as written in the Code of 1892 did not contain the language that the revenue agent “shall have a right of action and may sue at law or in equity. ’? This is the language which counsel for appellant insists should be interpreted literally. We believe we are-aided in construing this language by remembering the history of the statute. Prior to the adoption of the-Code of 1892 taxes were not a debt, and'the remedy for the collection thereof was by distress. When our statute authorized the revenue agent to sue for back taxes, his right to sue in chancery in proper cases was challenged, even though the case presented grounds for equitable relief. The case of Revenue Agent v. Stonewall Mills, 80 Miss. 94, 31 So. 544, is an illustration. In that case there was a general demurrer to the bill because, among other things, “there is no equity on the face of the bill.” Our court by Whitfield, Chief Justice, said:

“If the facts thus alleged are true, it must be obvious that a plain case for equity jurisdiction, on more grounds than one, has been shown, and no amount of subtle and refined reasoning can obscure the right of the complainant to an answer on the facts.”

Manifestly the statute as now written was intended to authorize, and indeed to make it the duty of, the revenue agent to sue for back taxes and it authorizes him to file this suit “in the proper court.” In seeking recovery, if it is necessary to have an accounting, discovery, or the aid of any other well-recognized remedy in. chancery, the proper forum is a court of equity, and to this end the statute expressly authorizes the revenue agent to sue in equity in all proper cases. But certainly, if the statute presents purely a common-law action for the recovery of a debt, the circuit court is the proper court. Certainly the legislature did not intend’. to make of the state revenue agent a favored suitor or to abolish all distinción between equity and common-law jurisdiction. The demurrer was properly sustained,, and the action of the chancellor not only in sustaining* the demurrer, but in ordering the cases transferred to the circuit court, must be approved.

Counsel for the appellees have challenged the right of appellant to any appeal in these cases. We confess that the question whether the appeals should be dismissed presents a more troubling question than those presented by the merits of the case. On the right of any appeal whatever several points are made. Section 147 of the Constitution is invoked, and it is contended that by virtue of this section we are powerless to reverse the-chancellor for merely declining to assume jurisdiction. The appellant admits that the jurisdiction of the chancery and circuit courts in these cases is at least concurrent; and, taking up this admission, appellees contend that, if the jurisdiction is concurrent, appellant yet has-his day in the circuit court, the merits of the case have-not been decided, and there is no ground for complaint. There is controversy also as to whether the decrees appealed from are interlocutory or final. The determination of appellant’s right of appeal is not without difficulty. - We believe, however, that the court is justified in assuming jurisdiction of the present appeal. While-we conceive it to be the duty of the circuit court to proceed without question with a cause transferred to it by proper decree of the chancery court, it yet remains that the chancellor might in some instances be in error in transferring, a cause that manifestly presents grounds, for equitable relief, and that could not be tried in a common-law court, according to right and justice. We, of course, recognize that such instances would be very rare indeed, and in the present case the chancellor was correct in declining jurisdiction, and no error <5an be done the appellant by having these causes transferred. A case, however, might be presented where the complainant would be compelled to have a reformation of a written instrument, a discovery, an accounting, or some ■other remedy in chancery before his rights could be ascertained and justice executed. In such cases the very right of the complainant would depend upon his remedy, and among other rights of litigants they sometimes have the right to equitable remedies, without which their very rights could not be enforced or wrongs done them redressed. If- a case of which equity has original jurisdiction should be wrongful transferred by the chancellor to the circuit court, and an appeal prosecuted by permission of the' chancellor, we would be. bound to hold that the substantial rights of the litigants are presented. If we should decline jurisdiction in the present case, we would be setting a precedent whereby jurisdiction would he declined in all cases of this character. The conclusions we reach do not brings the provisions of the Constitution in conflict one with the other. In the present Instance the chancellor on sustaining the demurrers expressly granted an appeal to settle the principles of the case and to avoid expense and delay. We accordingly hold that the court has jurisdiction of this appeal. The •decrees of.the learned chancery court will be affirmed, and the causes remanded to be transferred to the circuit ■court in accordanc with the decree of the court and the statute regulating the procedure in such cases.

Affirmed and remanded.

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Dissenting Opinion

Ethridge, J.

(dissenting). I am unable to concur with the majority in the construction placed on section ■4738 of the Code with reference to the right of the'state revenue agent to sue in the chancery court. Under sec-lion 4190 of the Code of 1892, which did not contain the provision of the present statute, “and shall have a right of action and may sue at law or in equity in all such .cases,” the supreme court held that the revenue agent had a right to sue in the chancery court in a case presenting «equitable features, although there was nothing, more than the language in the former statute and the present statute, “he shall have power and it shall be his duty to proceed by suit in the proper court against all officers,” etc. With this construction placed upon the former statute giving the revenue agent the right to sue in equity in cases presenting equitable features, it is difficult to reason out why the legislature would put in the present clause “and shall have a right of action and may sue at law or in equity in all such cases,” etc., if the only purpose of adding this section was to create the right he already had. I think the legislature should be treated as an intelligent body of men who understand the use of language, and that effect should be given to the language used by the legislature, and we should attribute to the legislature a definite purpose when we •consider any change they have inserted in a statute which did not exist in a statute before. To one understanding the history of the revenue litigation in this state and the vast number of suits necessary to be brought to enforce the state’s right to collect its revenues it is difficult to see how we could escape the conclusion that it was the deliberate purpose of the legislature to give the revenue agent power to proceed in either court in all cases where the state could bring suit. In counties having large cities and large business interests and where tax dodgers frequently fail to pay proper tax or license, it was necessary to sue large numbers of people, and of course each person had to be sued separately. If all these suits had to be brought in the circuit court and each tried separately before a separate jury with all the expense and delay of a jury trial, it would be practically impossible to collect delinquent revenues and other obligations. In many places large numbers of suits were filed in the circuit court, and as "the circuit court is in most counties only held two terms per year, and these terms were limited to short periods of time, and as the court could not impanel juries and dry cases in vacation, it was necessary to devise some means to bring these causes to trial, or else let the delinquent escape his just obligations to the state. The revenue agent is nothing more nor less than the representative of the state. He is not collecting these revenues for his individual use, but is collecting for the state and counties, and is in reality the state itself in court,, because the state can only sue through some personal representative: In addition to this it often develops after a suit has been filed that some relief like discovery or an accounting develops that did not exist, or was not known when the bill was filed, and in such case the-action in law would be delayed until proceedings could be had in equity in aid of the law court. In addition to-all this in certain counties there are strong influences banded together for the purpose of thwarting, hindering, or defeating the state in its action, because where-large numbers of persons were sued separately they generally brought all the influence they could bear to prejudice the public mind against the suits of the state revenue agent, and in disputed questions of fact were often enabled by means of local influences and jury control to defeat the state of its rights altogether. There is no reason why the legislatuure should not confer jurisdiction on the chancery court, but there is strong reason why it should do so. In the chancery court the evidence may be taken in vacation, and the causes may, by consent, be tried in vacation, and by reason of the advantages of the chancery court the litigation could he brought to a speedy termination. I do not think the-court should thwart the efforts of the legislature in creating such agency and procedure as it may find necessary to take care of the state’s business. There have-been many statutory jurisdictions conferred on the chancery court not named in the Constitution, and the legislature has the power to pass such statutes as it desires giving concurrent jurisdiction to the court. When the Constitution uses the language, “all causes that «may be brought in the chancery court whereof the circuit court has exclusive jurisdiction, shall be transferred to the circuit court,” it means, of course, that where a cause has been brought in the chancery court where the chancery court has no jurisdiction conferred by the Constitution or by statute that it should be transferred to the circuit court, which, of course, would have jurisdiction where the chancery court did not have it, but this section does not prevent the legislature from conferring on the chancery court such jurisdiction concurrent with the circuit court as it may deem advisable or expedient, and does not mean that the chancery court shall transfer to the circuit court for trial a jurisdiction which, under the law, it may entertain and try. In case the law has vested jurisdiction in the chancery court it should proceed to try the cause, and not send it to the other court. The question involved here was discussed by this court in the case of Delta & Pine Land Co. v. Adams, 93 Miss. 341 and 359, and 48 So. 190, 194, where Whiteield, C. J., used the following language:

“It is also said by learned counsel for appellant that the language in section 4256 that these taxes, treated as debts, may be recovered by ‘action,’ because of the use of the word ‘action,’ excludes the right to proceed in the chancery court. The law has armed the revenue agent, and armed him properly, with the amplest and fullest authority to sue in either a court of law or equity under Code of 1906, sections 4738, 4742, and 4743. If it be said that the- only right to bring this action is to be found in this particular section 4256, the answer is that, whilst that is perfectly true, the construction which would make the word ‘action’ relate to the circuit court alone is palpably too narrow. What possible reason could be assigned for a purpose, on the part of the legislature, to restrict the revenue agent to a court of law for the recovery of taxes treated as a debt, in all cases, universally? Nothing is easier than to conceive of cases so complicated in their facts, and- presenting so many difficulties as to the collection of taxes, as that the machinery of the- court of chancery alone is elastic enough to deal effectively with the situation. ... It would have been exceedingly easy for the legislature to have said, if they had so meant, that the remedy should be pursued alone in the circuit court. The legislature has not said so, all reason is against such a view, and the word ‘action’ must be so construed as to work out what appears clearly to have been the purpose of the legislature ; and we hold, accordingly, that it empowers suit in either court.”

The third syllabus to this case is as follows:

‘‘3. Taxes — Back Taxes — Code 1906, section 4256— Debt — Remedy-—-Action.—Code 1906, section 4256, providing that every lawful tax levied by the state, a county, or municipality is a debt due by the person owning the property and may be recovered by action: (a) Creates an additional and more effective remedy by which the nature of the tax obligation is changed to that of a debt; and (b) applies as well to back taxes as to current ones, since the statutory method (Code 1906, section 4740) for collecting back taxes is not exclusive; and (c) the use of the word ‘action’ in the section does not confine the remedy to courts of law, since other statutes (Code 1906, sections 4738, 4742, 4743)«give the revenue agent authority to sue at law or in equity; but -(d) the section creates a new obligation to pay as well as a new remedy, can have no retroactive effect, and a personal decree in a suit thereunder cannot be rendered for back taxes due before its adoption,'-although assessed thereafter, since they were not debts but merely taxes. ’ ’

It is of the utmost importance to the state, as well as to the interests of the honest taxpayer, that all persons bear their just proportion of the burdens of taxation, and no obstacle should be thrown in the way of the state through its - proper agent to enforce the discharge of these common obligations upon which the government must depend for its support.

I-concur in the proposition that the court has jurisdiction to decide this appeal.