City of Belzoni v. State ex rel. Rice Attorney General

• Decision Date: 30 October 1939
• Docket Number: 33848
• Citation: 186 Miss. 623,191 So. 657
• Court: Mississippi Supreme Court
• Parties: CITY OF BELZONI v. STATE ex rel. RICE ATTORNEY GENERAL

191 So. 657

186 Miss. 623

CITY OF BELZONI v. STATE ex rel. RICE ATTORNEY GENERAL

No. 33848

Supreme Court of Mississippi

October 30, 1939

APPEAL from the chancery court of Humphreys county HON. J. L WILLIAMS, Chancellor.

Suit by the State of Mississippi, on the relation of Greek L. Rice Attorney General, against the City of Belzoni, Miss., to recover excise or privilege tax on fuel oil. From the decree the relator appeals, and the City of Belzoni, Miss cross-appeals, but abandons the cross-appeal. Decree reversed and decree entered for the relator.

Reversed and decree here for the appellant.

R. H. Nason, of Belzoni, for appellant.

The state contends that the City of Belzoni is liable for tax on fuel oil as follows:

(a) Defendant had on hand on May 1st, 1936, 3, 630 gallons of fuel oil. Chapter 162, Laws of 1936, effective May 1, 1936. Section 27 of said act provides for the penalty. Section 8, Par. (b) of said chapter provides for 1c per gallon tax.

(b) The same thing is true with reference to the purchase of 95, 102 gallons by the City after May 1, 1936 through October 27, 1936. It will be noted that Chapter 162 of the General Laws of the State of Mississippi of 1936 and Section 44 thereof expresses the intent of the Legislature with reference to repealing of laws heretofore passed, reserving and saving that nothing shall affect, defeat any right, claim, suit, or cause of action for the collection of taxes heretofore existing and providing that all laws hereby repealed are specifically continued in full force and effect and operation for the purpose of collecting any fines or penalties due under such laws prior to the date on which this law became effective.

(c) Chapter 21 of the Laws of the Extraordinary Session of 1936, effective December 1st, 1936, amends Section 8 of the Regular Session of 1936. This amendment is provided in the preamble; and Section 2 of said chapter provides that no distributor against whom any tax or penalty has accrued prior to the passage of this act shall be relieved hereby from the payment of the tax and penalty and that this amendment shall apply only to oil received in the State of Mississippi after December 1, 1936.

(d) A tax of 1/4 of one cent per gallon plus the penalty is taxed on 259, 630 gallons under Chapter 21 of the Extraordinary Session of 1936. Chapter 144 of the Laws of 1938, effective May 1, 1938, in the preamble, House Bills Numbers 14 and 17, Chapters 21 and 24 of the advance sheets of acts of the Second Extraordinary Session of 1936 are repealed; also see Section 27 of said act, repealed without a saving clause, House Bills Numbers 14 and 17 which is, of course, Chapter 21 of the Laws of the Extraordinary Session of 1936. This law was specifically repealed. Certain saving clauses are reserved in Section 26, but not any saving clause with reference to taxes due by municipalities in this case.

(e) It is the State's contention that the City is liable for the tax and penalties because the City purchased said fuel oil from persons or corporations who were not qualified in Mississippi as distributors. It is further the State's contention that the City became a distributor under the law and liable for the tax. It is admitted that the City became a distributor and liable for a tax for 40, 455 gallons as shown in Exhibit 3 of the original bill under dates of May 30, 1938, June 18, 1938, July 1 and 13, 1938, and August 1, 1938.

(f) It is the contention of the City of Belzoni that no tax on any of the fuel oil purchased as aforesaid prior to May 30, 1938, for the reason that the preamble to Chapter 144 of the Laws of 1938 and Section 27 of said laws wholly repeal Chapter 21 of the Second Extraordinary Session of 1936.

Crow v. Cartledge, 99 Miss. 281, 54 So. 947; Bradstreet Company v. City of Jackson, 81 Miss. 233, 32 So. 999; H. Musgrove, Auditor v. Vicksburg & Nashville Railroad, 50 Miss. 677; French v. State of Mississippi, 53 Miss. 651.

The intention of the Legislature as to repeal is expressed by the words of Chapter 144 of the Laws of 1938. The language of the Chapter 144 of the Laws of 1938 is plain and unambiguous, and language actually used should control under ordinary rules of construction.

59. C. J. 897, Sec. 495.

Under Section 100 of the Constitution of 1890 the Legislature has power to enact Chapter 144 of the Laws of 1938.

McDonald v. State Tax Commission, 158 Miss. 331, 130 So. 473.

The case of State Tax Commission v. Mississippi Power Company, 172 Miss. 659, 160 So. 907, refers to 59 C. J. 897, Sec. 495, which, under the authorities of cases cited by appellee, is an exception to the general rule that the repeal of a statute obliterates the tax and right, but under said section there are two exceptions to the proposition that a statute enacted in substantially the same words and meaning continues the old law although it expressly repeals the same. These exceptions mentioned in the case to be argued and are: (1) Where the language of the old and new law are not substantially the same. In which case the meaning of the new law must be construed from the language actually used. (2) The law does not apply on a codification from the provisions of several prior statutes, and where it becomes an independent law (59 C. J. 897, Sec. 495). For these reasons we state that the law mentioned in State Tax Commission v. Mississippi Power Co., 160 So. 907, 172 Miss. 659 and in McDonald v. Tax Commission, 158 Miss. 132, 130 So. 473, does not apply in this case.

Section 100 of the Constitution of 1890 does not prevent the Legislature from repealing privilege tax laws.

We respectfully submit that Chapter 144 of the Laws of 1938, Chapter 21 of the Laws of the Extraordinary Session of 1936 and Chapter 162 of the Laws of 1936 should be construed by the language used in said laws and that the language is this that Chapter 21 of the Extraordinary Session of 1936 merely amended Chapter 162 of the Laws of 1936 but that Chapter 144 of the Laws of 1938 both in the preamble and in Section 27 thereof absolutely repeal Chapter 21 of the Laws of the Extraordinary Session of 1936, and it was codification and a a revision of the general laws of prior statutes amending some and repealing others and contains no saving clause whatsoever as to Chapter 21 of the Laws of 1936, and for this reason the Court should look to the language of the law and construe the meaning of the Legislature when they passed such law. We respectfully submit that the Chancellor's decree sustaining the City's Special Demurrer should be upheld in this case.

E. R. Holmes, Jr., Assistant Attorney-General, for appellee:

It is the State's contention that the City of Belzoni is liable for a tax on fuel oil as follows:

(a) The tax of 1 cent per gallon on 3630 gallons of fuel oil on hand on May 1, 1936 plus a penalty of 100 per cent.

Chapter 162, Laws of 1936, effective May 1, 1936, particularly Section 5, paragraphs (b) and (e), Section 8, paragraph (b) and Section 27 of said chapter; Town of Utica v. State, ex rel., Rice, 166 Miss. 565, 148 So. 635.

(b) A tax of 1 cent per gallon plus the penalty of 100 per cent thereon on 95, 102 gallons of fuel oil purchased by the City from and after May 1, 1936 through October 27, 1936.

(c) A tax of one-fourth cent per gallon plus 100 per cent penalty on 259, 630 gallons of fuel oil purchased by the City during the period from December 10, 1936 through August 1, 1938.

Chapter 21, Second Extraordinary Session 1936, effective December 4, 1936; Chapter 144, Laws of 1938, effective May 1, 1938, and particularly Section 6 thereof amending Section 8, paragraph (b) of Chapter 162, Laws of 1936.

It is the State's contention that the City is liable for the tax and penalties above set forth because the City purchased said fuel oil from persons or corporations who were not qualified Mississippi distributors in accordance with Section 5, paragraph (b) of Chapter 162, and amendments thereto, and therefore the City became a distributor under the law and became liable for the tax imposed by Section 8, paragraph (b) of said Chapter 162 as amended by Chapter 21 of the Second Extraordinary Session of 1936 and Chapter 144, Laws of 1938, Section 6.

It is the contention of the City that it owes no tax on any of the fuel oil purchased as aforesaid by it prior to May 1, 1938 for the reason that Section 27 of Chapter 144, Laws of 1938, repealed Chapter 21 of the Second Extraordinary Session of 1936.

Crow v. Cartledge, 99 Miss. 281.

However, Chapter 21 of the Second Extraordinary Session of 1936 was an amendment to Section 8 of Chapter 162 and the same law which repealed said Chapter 21 likewise amended and thus retained the force and effect of Section 8 of said Chapter 162. Section 6 of Chapter 144, Laws of 1938.

A statute which repeals a former statute and re-enacts it in practically the same language does not abrogate the former statute.

Anding v. Levy, 57 Miss. 51, 59; Abbay v. Levee Commissioners, 83 Miss. 102, 107; Hodges v. Inman, 149 Miss. 785; McDonald v. Tax Commission, 158 Miss. 331; State Tax Commission v. Mississippi Power Co., 172 Miss. 659; Rather v. Moore, 179 Miss. 78; Texas Co. v. Dyer, 179 Miss. 135; Fertilizer Co. v. Stone et al., 173 Miss. 183, 162 So. 170.

Under Section 100 of the Constitution of 1890 the Legislature is without power to release such an obligation as the one herein involved.

McDonald v. State Tax Commission, 158 Miss. 331, 130 So. 473.

OPINION

McGowen, J.

The State of Mississippi, on the relation of Greek L. Rice Attorney-General, filed its bill in the Chancery Court against the City of Belzoni, Mississippi, a municipality thereof, seeking to recover excise or privilege tax on fuel oil alleged to be due the State. The city...