Roseberry v. Norsworthy

• Decision Date: 09 June 1924
• Docket Number: 24346
• Court: Mississippi Supreme Court
• Parties: ROSEBERRY v. NORSWORTHY, SHERIFF AND TAX COLLECTOR. [*]

100 So. 514

135 Miss. 845

ROSEBERRY v. NORSWORTHY, SHERIFF AND TAX COLLECTOR. ^[*]

No. 24346

Supreme Court of Mississippi

June 9, 1924

(En Banc.)

1 STATUTES. Controlling purpose in construction is to give effect to intention; intention of legislature deduced from whole and every part of statute taken together.

In the construction of statutes, the controlling purpose is to ascertain and give effect to the intention and purpose of the legislature, and this intention and purpose is to he deduced from the whole and every part of the statute taken together---from the words and context---and such a construction adopted as will best effectuate the intention of the lawgiver.

2 STATUTES. Proviso not construed so as to nullify remaining provisions.

Where the intention and purpose of a legislative enactment is clear and unmistakable from a consideration of the whole act, a proviso found therein will not be given effect as written when so to do would defeat the obvious legislative purpose and intent, nullify the other detailed provisions of the act and reduce the act as a whole to an absurdity.

3 LICENSES. Law levying annual privilege tax on motor driven vehicles construed.

When all the provisions of chapter 116, Laws of 1924, levying an annual privilege tax on all classes of motor driven vehicles, are considered together, they indicate a clear and unmistakable legislative intention and purpose to fix the minimum tax imposed at ten dollars per annum, with a scale of taxation graduated from that minimum to the maximum therein fixed, and, when the act is considered as a whole, this legislative purpose and intent becomes so apparent as to lead to the irresistible conviction that the use of the word "maximum" in the proviso found in section 3 of the act is a mere clerical error, and, such being the case, the strict letter of this proviso must yield to the obvious intent.

4. STATUTES. True meaning enforced, even to extent of correcting errors in language employed.

The true meaning of statutes, when ascertained will be enforced by the court, even to the extent of correcting errors in the language used.

5. STATUTES. When rule as to conflicting sections not applicable.

The rule that, as between conflicting sections of the same act, the last in order of arrangement will control has no application, where the intention and purpose of the whole act is clear and unmistakable, and to accept the literal wording of the latter section would destroy the legislative policy, nullify the main provisions of the act, and entirely defeat the manifest intention and purpose of the law-makers.

6. STATUTES. Law levying privilege tax on motor vehicles held not violative of constitutional provision as to titles.

The fact that chapter 116, Laws of 1924, provides that the fees and taxes derived shall be paid into the county road fund, while the title of the act provides that such taxes shall be paid into the state highway fund and the county road fund, does not render said act violative of the provision of section 71 of the Constitution of 1890 that the title of an act "ought to indicate clearly the subject-matter or matters of the proposed legislation," since this provision is merely advisory or directory.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Mandamus by J. L. Roseberry against H. C. Norsworthy, sheriff and tax collector. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Judgment affirmed.

Currie & Smith, and E. J. Currie, Jr., for appellant.

Mandamus was the proper remedy to be invoked. Code of Miss. 1906, section 3231; Hemingway's Code, section 2533; Thomas T. Swann v. Buck, 40 Miss. 268; Cooley on Taxation (4 Ed.), section 1606, pages, 3209, 3211, citing authorities. The Enrolled Act controls. Green v. Weller, 32 Miss. 650; Ex Parte Wren, 63 Miss. 512; Hunt v. Wright, 70 Miss. 303, 11 So. 608; Nugent v. City of Jackson, 72 Miss. 1051, 18 So. 493; State v. Powell, 77 Miss. 566, 27 So. 927; State v. Henry, 40 So. 158; Postal Telegraph Co. v. Shannon, 44 So. 809; Adams v. Noble, 60 So. 561; State, etc. v. Jackson, 81 So. 1; 48 L. R. A. 652; 25 R. C. L. 884; 25 R. C. L. 895; 25 R. C. L. 947.

Its language here is clear, unambiguous and unmistakable and the physical construction of the whole section of the act in question, and the arrangement of its various parts, show conclusively that the last provision of the section is a general provision which controls the whole section and each and every part of it. We can conceive of no argument to the contrary along this line. Language could not be more explicit. The proviso stands as an unanswerable argument in its own favor. It puts a restriction upon every preceding part of the section.

As the matter now stands the legislature of the state has spoken and has expressed itself in clear, concise, unmistakable and unambiguous language, and to adopt the theory of appellee would amount to calling upon the courts to construe something that permits of no construction. The legislature, in its choice of words, was unrestricted in the exercise of its privilege of making that choice. It had before it the whole range of the English language. In expressing its will and intent in the last paragraph of the section of the act under discussion it selected language that cannot be twisted nor misconstrued.

The law-making body of the state of Mississippi, by the exercise of its legislative power, has enacted a statute, under the terms of the controlling provision of which it says that the greatest amount that can be collected in any case is ten dollars per annum. We think to undertake to put any other construction on the language employed would amount to changing the law as enacted by the legislature and would in effect be judicial legislation, not judicial construction.

It is the duty of the courts to recognize, construe and enforce the laws as they are written, and to grant proper relief upon the application of any person interested. 36 Cyc. pages 1102-1103, section VII, subsection b.

The scope of judicial interpretation does not admit the right of reading other words into the law. It would be objectionable, and a species of legislative judicial action always to be avoided. 36 Cyc. 1103; Walker v. Vicksburg, etc., R. Co., 110 La. 718, 34 So. 749; 36 Cyc. 1103; Philadelphia Fire Ins. Co. v. Love, 101 Texas, 376, 108 S.W. 158, 810; Austin v. Cahill, 99 Texas, 172, 187, 88 S.W. 542, 89 S.W. 552; Gooden v. Lincoln Parish Police Jury, 122 La. 755, 48 So. 196.

A statute is not to be read as if open to construction as a matter of course. It is only in the case of ambiguous statutes of uncertain meaning that the rules of construction can have any application. Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. 25 R. C. L., page 957, 958, section 213, citing numerous authorities; Monaghan v. State, 6 So. 241; Siegel v. People, 106 Ill. 89, and other authorities.

The courts must look to the statute itself for the legislative intent, and cannot make law by judicial construction. Abbott v. State, 63 So. 667. The judiciary will never undertake to so construe a statute as to change the language used by the legislature when the same is expressed in plain, explicit and unambiguous words. Walker v. Vicksburg, S. & P. Ry. Co., 34 So. 749; State, etc., v. Land, 62 So. 31; City of Hazlehurst v. Mayes, 51 So. 890; State v. Piazza, 6 So. 316; Hammer, et al. v. Yazoo Delta Lbr. Co., 56 So. 466; State v. Traylor, 56 So. 521; State, etc., v. Burr, et al., 84 So. 61; City of Shreveport v. S.W. Gas, etc., Co., 74 So. 559; Louisville, etc., R. Co. v. W. U. Tel. Co., 71 So. 118; Fine v. Moran, 77 So. 533; Van Pelt v. Hilliard, 78 So. 693; State v. Amos, 79 So. 433; May v. Head, 96 So. 869; Tucker v. McLendon, 98 So. 797; State v. Reusswig, 126 N.W. 279, 110 Minn. 473; City of Covington v. Cin., etc., R. Co., 139 S.W. 854, 144 Ky. 646; Martin v. Martin, etc., 27 App. D. C. 59, 7 Ann. Cas. 4; Healy v. State, 80 A. 1074, 115 Md. 377; Mygatt v. Southern Coal, etc., Co., 180 Ill.App. 150; United Missouri, etc., Co. v. Wisconsin, etc., 119 P. 796, 44 Mont. 343; United States v. Shing Shunn & Co., 173 F. 844; 1 Cooley on Taxation (4 Ed.), sections 64, 66, and 72; Vol. 2, section 502.

All fundamental rules of law and reason preclude the courts from undertaking to construe the statutes or parts of statutes of the legislature by saying that the legislature intended to convey a meaning wholly different from the ordinary and only meaning that can be attributed to the words and language employed by the legislature. When the legislature expresses its intent in the wording of a statute or in the wording of the controlling portion of a statute nothing remains but for the courts to determine the import of the law by an examination of its plain and unequivocal terms, and to give effect to the law in conformity with such plain and unambiguous words and terms.

It is but reasonable to suppose that the necessary number of legislators refused to vote favorably upon the bill in question until it was so amended as to embody the very provision upon which the appellant relies. Without such amendment it is but reasonable to presume the bill would have failed of passage entirely. These suppositions and presumptions are conclusively determined in favor of the latter provision in the act and in favor of the contentions of the appellant.

The last expression of the legislative will is the law, in case of conflicting provisions in the same statute, or in different statutes, the last enacted in point of time prevails; and on the same...