Alabama Highway Express Co. v. Hempstead
| Decision Date | 22 April 1940 |
| Docket Number | 34127 |
| Citation | 195 So. 493,188 Miss. 475 |
| Court | Mississippi Supreme Court |
| Parties | ALABAMA HIGHWAY EXPRESS CO. v. HEMPSTEAD, SHERIFF |
APPEAL from the chancery court of George county HON. D. M. RUSSELL Judge.
Suit by T. M. Hempstead, Sheriff and Tax Collector of George County against the Alabama Highway Express Company, to enforce tax lien on automobile trucks. From a judgment for plaintiff defendant appeals. Affirmed.
Affirmed.
J. W Backstrom, of Leakeville, and T. H. Byrd, of Lucedale, for appellant.
The appellant interposed a demurrer to the bill of complaint and the first and second grounds of the assignment of errors goes to the overruling of the demurrer. The demurrer raised the question that there was first, no equity in the bill of complaint; second, the court did not have jurisdiction; third, that if the complainant had a remedy it was in a court of law or some other court; fourth, that the tax collector of George County, Mississippi was not authorized to institute and prosecute this law suit under Chapter 148 of the Laws of 1938.
This is a privilege tax statute, and if this court places the construction upon the statute that the appellee is now asking the court to do, it is a highly penal statute, and in either event it must be construed strictly against the state or tax authorities and liberally in favor of the taxpayer. The court has repeatedly held that tax statutes must be construed strictly against the tax authorities and liberally in favor of the taxpayer.
Bluff City Ry. Co. v. Clark, 49 So. 177, 95 Miss. 689; Planters Lbr. Co. v. Wells, sheriff and tax collector, 107 So. 9, 147 Miss. 279; Gully v. Gulfport Loan & Brokerage Co., 151 So. 721, 168 Miss. 449; Independent Linen Service Co. v. State ex rel. Rice, 152 So. 647, 169 Miss. 62; Pan American Petroleum Corp. v. Miller, 122 So. 393, 154 Miss. 565; State v. Miss. Power & Light Co., 138 So. 567, 161 Miss. 839.
If a court of equity has jurisdiction of this cause of action it is under the broad principles of equity and not under Chapter 148 of the Laws of 1938.
The appellee did not follow the remedy laid down by the act, and he was not authorized to go into a court of equity.
The sheriff and tax collector, as such, is not authorized to institute and prosecute this suit. Enforcement of this act primarily rests upon the motor vehicle commissioner, and if the act prescribes the method by which it should be enforced, even the motor vehicle commissioner is limited to the remedy prescribed by the act.
If this court should affirm this case it will say to the eighty-two sheriffs of Mississippi and the several hundred deputy sheriffs and in addition all the field men of the motor vehicle commissioner each when they find a motor vehicle operating on the highways that in their judgment is violative of Chapter 148 or some rule or regulation adopted by the motor vehicle commissioner they can seize the motor vehicle, go into a court of equity in their own name for the benefit of the state of Mississippi and ask the court to fix a judgment for the benefit of the state, condemn and sell the motor vehicle. Such procedure would be violative of our principles of government and would be such powers that the Legislature never intended.
The enforcement of Chapter 148 is vested in the motor vehicle commissioner, however, said act does not give the motor vehicle commissioner authority to institute and prosecute suits similar to this law suit, and if any state officer has the authority it is the attorney-general.
Capital Stages v. State, 128 So. 759, 157 Miss. 576; Sec. 3675, Code of 1930.
The tax imposed by Chapter 148 of the Laws of 1938 is a privilege tax, and any action to recover this tax must be brought in the name of the attorney-general, and it certainly cannot be brought in the name of the sheriff and tax collector or any of his deputies.
The appellant in this case obtained a special permit from the sheriff of George County, Mississippi under Section 10 of the Act, and if it failed to obtain a permit sufficient to move the load the sheriff probably had the right to seize the truck, and he probably had the right to collect the full tax and 25% damages under Section 10 of the Act, and he also had the right to carry the operator and the truck before a justice of the peace or other officer, as provided in Section 29 of the Act, and have a fine imposed and probably had the right to hold the truck until the fine and cost had been paid, but he did not have the authority to hold the truck and pursue the remedy that he is attempting to pursue in this case. The sheriff is not authorized to change the classification and attempt to collect the tax under Section 4 of the Act.
It may be that permission for this load should have been obtained, and it may be that the appellant had greater load than the statute authorized. However, the sheriff had his remedy under Section 10 of the Act. The extent of the tax that could be assessed or levied against this appellant is the tax provided under Subsection B of Section 10 which is $ 2 per ton plus the 25% penalty, which amount together with the penalty was tendered the sheriff and was by him refused. The proceedings instituted by the sheriff and tax collector are not authorized by Chapter 148. The sheriff and tax collector is without authority to institute and prosecute said suit, and this cause should be reversed and dismissed.
O. F. Moss, of Lucedale, for appellee.
Under Paragraph 22, Section 2, Chapter 138, Laws of 1938, known as "Motor Carriers Act of 1938, " appellant is tagged at said time, without a question of a doubt, as a contract carrier by motor vehicle.
Section 30 of the Act fixes all taxes, costs and penalties imposed as a first lien on all motor vehicles operated in violation of the provisions of the Act, which lien shall be paramount to any and all private liens, and any such motor vehicle shall be subject to seizure and impounded to enforce the collection thereof. Any sheriff, deputy sheriff, or field men operating out of the office of the auditor of public accounts is authorized to arrest, without warrant, any person operating or driving any motor vehicle contrary to the provisions of this Act within the limits of their respective jurisdictions, and/or seize and impound any motor vehicle being operated in violation of the provisions hereof. In case of such arrest or seizure such arresting or seizing officer shall go into some court of competent jurisdiction to enforce the lien thereon.
We submit that is just what the sheriff and tax collector in this case did. He found that appellant had wrongfully, unlawfully, and fraudulently represented to him that it wanted to transport a load of two tons over the public roads of George County, paid two dollars for such permit, and then carried a load in excess of fourteen tons on the public roads of the county. When the sheriff and tax collector seized and impounded this truck he went into the chancery court of George County, a court of competent jurisdiction, to enforce the lien on said truck.
If appellant had intended to comply with the law, had it bought and paid for a ten-ton permit, and had not placed a load on its truck in excess of ten tons, it would have gotten by cheaply, easily and for a reasonable tax. But since it elected to cheat, swindle, and defraud the State of Mississippi out of just taxes, appellant will have to suffer the consequences, and will have to pay the full tax for a year, plus the penalty. The lower court in its decree gave appellant credit for the two dollars it had already paid for the permit in the first instance.
The Motor Vehicle Act itself makes a sheriff's duty plain in such cases. Bulletin 3 gotten out by the Motor Vehicle Department makes a sheriff's duty very plain. Section 30 of the Act tells the sheriff just exactly what he must do when he sees one of these trucks not complying with the...
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