Adams v. Tombigbee Mills

• Decision Date: 18 February 1901
• Citation: 29 So. 470,78 Miss. 676
• Court: Mississippi Supreme Court
• Parties: WIRT ADAMS, STATE REVENUE AGENT, v. TOMBIGBEE MILLS

29 So. 470

78 Miss. 676

WIRT ADAMS, STATE REVENUE AGENT, v. TOMBIGBEE MILLS

Supreme Court of Mississippi

February 18, 1901

FROM the circuit court of Lowndes county. HON. EUGENE O. SYKES Judge.

Wirt Adams, state revenue agent, the appellant, acting under a statute, caused the assessor of Lowndes county to assess the capital stock of the Tombigbee Mills, the appellee, for taxation for the years 1888 to 1897, inclusive. The board of supervisors refused to confirm the assessment, and the state revenue agent appealed to the circuit court. A trial was there had, resulting in a verdict and judgment in favor of the mills, from which Adams, state revenue agent, appealed to the supreme court. The questions involved were the constitutionality of the act of 1882 (laws 1882, p. 84) whether said act had been repealed, and the extent of exemptions from taxation thereunder.

Judgment reversed and cause remanded.

Fewell & Son, for appellant.

If we concede, that the act of 1882 was not unconstitutional because it made no distinction between the property of corporations and individuals, the main question is, Did the code of 1892, § 3744, operate as a repeal of the act?

It will hardly be contended, in view of the decisions of this court that any one, corporation or individual, could, under the constitution of 1869, acquire a vested right to exemption from taxation, even without the provision of that constitution that all property of corporations should be subject to taxation. The appellee made no contract with the state by accepting the act. It was a general statute, and would be as repealable as a statute exempting a cow to the poor man. If the legislature had the power to exempt for ten years, why would it not have had the power to exempt for one hundred years, and why could it not have exempted for any period of time half the property of the state?

But, under the constitution of 1869, it is too plain for argument that there could not be a vested right to exemption, and there is to be considered as written into every act of the legislature the constitutional provision that all the property of corporations and of individuals shall always be subject to taxation. Nor will it be argued that the constitution of 1890 ratified or confirmed the act of 1882 in the sense that the constitution of 1890 took away the power of the legislature to repeal the act, for exemptions under existing laws were expressly made dependent upon the legislative will. Section 181. And so the question is, Did the code of 1892 repeal the act of 1882? In view of the decision of this court in the case of Wirt Adams v. Yazoo etc., R. R. Co., 77 Miss. 194, in which it was held that the code of 1892 repealed exemptions under railroad charters, we feel some delicacy in arguing the proposition, for the court needs no support from us.

The code of 1892, by its terms, repealed "all acts and parts of acts repugnant to the provisions contained in said code." The act of 1882 is certainly repugnant to the provisions of 3744 of the code, and emphasis is given to the section by the use of the words, "the following property, and no other, shall be exempt from taxation." Moreover, the express exemption by paragraph (v) of all permanent factories '' hereafter" established, makes an exception which strengthens the rule, and it also invokes the maxim expressio unius exclusio est alterius. Aside from the code provision, § 3, there is a repeal by implication, under the general rule, of the act of 1882 because of repugnancy. Both statutes could not be in force at the same time. Obviously it was the purpose of § 3744 to expunge all previous exemptions and to conform the law to the new constitution. The policy of the state has been settled by the constitution of 1890.

Wherever there is repugnancy there is repeal. Even a statute which is not repugnant in its provisions to a former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statute. Swann v. Buck, 40 Miss. 269; Gibbons v. Bittenum, 56 Miss. 232; State v. Order of Elks, 69 Miss. 895; Pons v. State, 49 Miss. 1; 23 Am. & Eng. Enc. L., pp. 479 (3) and 483 et seq.

Suppose that the constitution of 1869 remained in force, would a factory established, say in 1893, be exempt from taxation in the face of § 3744 of the code of 1892? If so, why say in paragraph (v) "all factories hereafter established?" Exemptions from taxation are not favored; the policy of the law is that all property shall bear its due proportion of taxation. If it be argued that the appellee acted on the faith of the act of 1882, we answer that the appellee was bound to know that under the constitution it could not get a vested right. That has been decided by this court. And it is to be held as bound to know that the act was repealable at the will of the legislature. If it be contended that good faith requires that the appellee shall enjoy the exemption, we say that it is not for the courts to decide that question; it is a question for the legislature. The court is confined to the naked question of repeal or nonrepeal. The constitution of 1890 expressly relegates that question to the legislature and leaves no discretion to the courts. No decision had been rendered prior to the time of the establishment of appellee's factory, no decision has since been made, to the effect that under the constitution of 1869 there could be any irrepeable exemption from taxation; on the contrary, all the decisions ever made on the question were directly to the contrary. The peremptory instruction ought not to have been given, because some of the stock of appellee represented property not embraced in the act of 1882. Presumptively the appellee has, during all these years, been renting its tenement houses to its operatives or officials and making profit by such renting. The act of 1882 does not embrace, in terms, the capital stock of corporations, but only the machinery, the manufactured goods, and the material used therefor, the buildings in which the machinery is located and grounds upon which situated, or which may be within the necessary inclosure around such buildings; also all warehouses and other storehouses used exclusively by the company, etc. The exemption is of visible property, not capital stock. Under the strict rule of construction applicable to exemptions claimed from taxation, we submit that it is doubtful whether the act of 1882 covers capital stock, even though the capital stock was invested in machinery, etc.

Sykes & O'Neill, and J. M. Boone, for appellee.

The contention of the appellee is that the decision in the case of Adams v. Yazoo, etc., R. R. Co., 77 Miss. 194, does not affect or control this case, or in the least militate against our contention. Those reasons, briefly stated, are:

(a) Because the appellee corporation was chartered with no irrepealable feature, March 28, 1887, under a general law applicable to all the factories in the state of the same class, to wit: an act of the legislature of the state of Mississippi approved March 9, 1882, and which was enacted under and in pursuance of section 13, article 12, of the constitution (1869), and that under said act of the legislature and constitutional provision, the real and personal property of said corporation, which represented its capital stock, was, and is expressly exempt from all taxation, state, county and municipal, for a period of ten years from the time it was completed and put in operation, to wit: May, 1889.

(b) Because, as the record shows, the appellee is a corporation with a charter similar to the charter construed in Mississippi Mills v. Cook, 56 Miss. 40, and similar to charters of other corporations which have been similarly construed by this court subsequently to the case of Mississippi Mills v. Cook, and that appellee has acted and invested its capital on the faith of such decisions, and which, in the language of Justice Whitfield, in Adams v. Yazoo, etc., R. R. Co., "might thus be said to constitute a rule of property."

(c) Because the saving clause of article 181, constitution of 1890, to wit: "Exemptions from taxation to which corporations are legally entitled at the adoption of this constitution, shall remain in full force and effect for the time of such exemption as expressed in their respective charters, or by general law, unless sooner repealed by the legislature," recognized and embraced the validity of the exemption claimed and relied on by appellee, and continued its exemption in force for the remainder of the unexpired period of ten (10) years, the said general law under which appellee was chartered not having been repealed by the legislature, and the precise corporate existence of the "Tombigbee Mills" having been retained and preserved intact from the date of its organization and charter to the present time.

Thus, it will be seen that the difference between the issues involved in the instant case, and the case of Adams v. Yazoo, etc., R. R. Co. supra, are radical and fundamental.

1. The charter of the Yazoo & Mississippi Valley Railroad Company was the grant of a "special privilege under a special charter to a special railroad," and, therefore, condemned; whereas, the exemption claimed in the instant case, was granted under "a general law applicable to all the factories in the state of the same class," and, therefore, was authorized by the constitution.

2. That the "Tombigbee Mills" was chartered, and established its factory under and upon the faith of the act of 1882 and the decisions of the supreme court construing the power and right of the legislature, under the constitution to enact it and similar statutes; whereas, the railroad came into existence only by the consolidation of two separate and distinct roads, and...