City of Jackson v. State ex rel. Mitchell

• Decision Date: 27 January 1930
• Docket Number: 28414
• Citation: 126 So. 2,156 Miss. 306
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. STATE ex rel. MITCHELL, ATTY.-GEN

126 So. 2

156 Miss. 306

CITY OF JACKSON v. STATE ex rel. MITCHELL, ATTY.-GEN

No. 28414

Supreme Court of Mississippi

January 27, 1930

Division A

Suggestion of Error Overruled, Feb. 24, 1930.

APPEAL from circuit court of Hinds county, First district HON. W. H POTTER, Judge.

Suit by the state, on the relation of Geo. T. Mitchell Attorney-General, against the city of Jackson. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

W. E. Morse, of Jackson, for appellant.

A gasoline tax is a privilege tax, the amount of which is measured by the number of gallons sold. It is not a property tax; it is not a tax upon the persons to whom the dealer sells the gasoline, but it is upon the dealer, which he includes in his selling price, and is measured by the amount of gasoline sold.

Pan-American Pet. Co. v. Miller, 122 So. 393; State v. Panhandle Oil Co., 112 So. 584.

The statute is strictly construed as against the state and in favor of the taxpayer.

Ex parte Taylor, 58 Miss. 478, 38 Am. R. 366; R. R. Co. v. State, 62 Miss. 105; Bell v. Kerr, 80 Miss. 177, 31 So. 708; Wilby v. State, 93 Miss. 767, 47 So. 465; State v. Grenada Compress Co., 123 Miss. 191, 85 So. 137; Sperry v. Harbinson, 123 Miss. 679, 86 So. 455; Planters' Lbr. Co. v. Wells, 112 So. 9; and Pan-American Pet. Co. v. Miller, 122 So. 393.

The statute only applies to persons, firms, partnerships and corporations.

Section 1, chapter 21 (Extra Session) Laws Miss., 1928.

Where a statute deals with matters foreign to the ordinary functions of public corporations, the word "person" will not be held to embrace municipal corporations, exercising a part of the state's sovereignty.

Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L.R.A. 222.

Under section 6774 of Hemingway's Code, municipal cities are given full jurisdiction in matters of streets, sidewalks, sewers, parks, etc. Title to the streets in the city of Jackson is vested in the corporation of the city.

Donnaher v. State, 8 S. & M. 649.

The state of Mississippi does not tax the taxing bodies of the state.

Section 8154 of Hemingway's Code of 1927; City of Laurel v. Weems, 100 Miss. 335, 56 So. 451; Alvis v. Hicks, 116 So. 612; Barnes, Sheriff, v. Jones, 103 So. 773; Penick v. Poster, 12 L.R.A. (N.S.) 1159; Butler v. Merritt, 113 Ga. 238, 38 S.E. 751; Re Hamilton, 148 N.Y. 310, 42 N.E. 717; Whiting v. Lubeck, 121 Me. 121, 115 A. 896.

The tax on the ownership of gasoline is a property tax and if applicable in this case, is in violation of the Fourteenth Amendment of the Federal Constitution and also section 112 of the Constitution of the state of Mississippi.

Gould v. U.S. 65 L.Ed. 638; Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891; Thompson v. McLeod, 112 Miss. 383, L.R.A. 1918C, 893, 73 So. 193, Ann. Cas. 1918A, 674; Flint v. Stone Tracy Co., 220 U.S. 107, 148-150, 55 L.Ed. 389, 412, 413, 31 S.Ct. 342, Ann. Cas. 1912B, 1312; Zonne v. Minneapolis Syndicate, 220 U.S. 187, 55 L.Ed. 428, 31 S.Ct. 361; United States v. Emery B. T. Realty Co., 237 U.S. 28, 59 L.Ed. 825, 35 S.Ct. 499; Panhandle Oil Co. v. Mississippi, 72 L.Ed. 857.

J. A. Lauderdale, Assistant Attorney-General, for appellee.

Appellee agrees with counsel for appellant on points one and two; that is, that the tax levied by chapter 21, Laws of Extraordinary Session of 1928, is a privilege tax, and that the statute is to be strictly construed as against the state and in favor of the taxpayer.

Section 1, chapter 21, Laws Extraordinary Session 1928, provides by whom such tax shall be paid. It provides (a) that the tax shall be paid by the retail dealer; or (b) by the user when the gasoline received or used by him shall have been purchased or acquired from a wholesale dealer outside of this state.

That part of the section 2 fixing the gasoline to be included in the measure of tax is as follows: "But the gallonage of gasoline shipped or brought from another state or person into Mississippi, and intended for use or sale in the state of Mississippi" shall be taxed.

This section 3, provides that "each person, firm, co-partnership, corporation, or association of persons shall pay this tax." Counsel for appellant contends that this does not include a municipality or a municipal corporation.

The word person, may or may not include the state or its subdivisions. 18 Am. & Eng. Enc. L., title Person, p. 403, note 2, where many authorities are collected.

Am. & Eng. Enc. L. (2 Ed.), p. 740; City of Olathe v. Mo., 96 P. 42; Sacramento v. Industrial Accident Company, 240 P. 792; Portsmouth Gas. Co. v. Sanford, 45 L.R.A. 246; Anniston v. Ivey, 44 So. 48; Shannon v. Jefferson, 27 So. 977; Metropolitan Railroad Co. v. Dis. of Columbia, 132 U.S. 1, 33 L.Ed. 231.

Counsel for appellant quotes from section 8154, Hemingway's Code of 1927, which statute exempts all property, real or personal, belonging to a municipal corporation. It is clear that this exemption covers a property tax.

Natchez Investment Co. v. Natchez, No. 28,177, decided November 25, 1929; Merck v. Abston, 120 So. 839.

The statute does not levy a tax on ownership but on a specific use of the gasoline. The city of Jackson may own and use gasoline in stationary engines, airplanes, boats, or may use the same in any manner other than on the streets or highways of said state without the payment of the tax.

A highway is a public thoroughfare.

65 L.R.A. 799; Strange v. Board of Commissioners, 91 N.E. 242; 22 L.R.A. (N.S.) 1221.

Argued orally by W. E. Morse, for appellant and by J. A. Lauderdale, Assistant Attorney-General, for appellee.

OPINION

Cook, J.

The state of Mississippi, on the relation of the Attorney-General, filed this suit in the county court of Hinds county against the city of Jackson, alleging that the said city was indebted to the state in the sum of six hundred thirty-two dollars and fifteen cents, as a distributor of gasoline purchased by the said city outside of the state and used by the city on its streets. The cause was heard in the county court on the pleadings and an agreed statement of facts, and a judgment was rendered in favor of the state, from which the city appealed to the circuit court. The circuit court affirmed the judgment of the county court, and thereupon the city prosecuted an appeal to this court.

It was agreed that the city of Jackson is a municipal corporation in Hinds county, Mississippi, and that it purchased from the Gulf Refining Company of New Orleans, La., one tank carload of gasoline containing twelve thousand six hundred forty-three gallons, and that the same was shipped from Baton Rouge, Louisiana, and was received in Jackson and stored in a tank owned by said city. It was further agreed that the state tax on gasoline is five cents per gallon; that no tax has been paid on the said gasoline either by the Gulf Refining Company or by the city of Jackson; that, if the city of Jackson is due any tax on said gasoline, the total amount thereof is six hundred thirty-two dollars and fifteen cents, with interest and damages; that the gasoline so purchased was intended to be and was used by the fire trucks, police cars, and motorcycles, garbage trucks, and other municipal usage on the streets; that no part thereof is sold by the city, and no employee of the city is permitted to use said gasoline for his private purposes; that Hinds county has eight hundred seventy-eight miles of public roads outside the city limits, and the city has two hundred forty-five miles of streets within its corporate limits; that about eighty-five per cent of the automobiles registered in Hinds county are owned by the citizens of the city of Jackson; and that the city receives no part of the gasoline tax.

Section 1 of chapter 21, Laws of 1928 (Extraordinary Session), provides as follows:

"That any person engaged in the business of distributor of, or wholesale dealer in gasoline, shall pay for the privilege of engaging in such business an excise tax of five cents per gallon upon all gasoline received in this state for sale or use on the streets or highways thereof. Such tax shall be paid by the retail dealer or user when the gasoline received or used by him shall have been purchased or acquired by, from, or through any person, firm, association, partnership or corporation not licensed as a distributor or wholesale dealer in this state, as hereinafter defined."

Section 2 of the said act of 1928 prescribes what gasoline shall be included in, and what shall be excluded from, the measure of tax, and expressly provides for the sale of gasoline to the Federal government or any of its departments, agencies, or instrumentalities, without the payment of the tax, by providing that any distributor who sells to the Federal government, or any of its departments or instrumentalities, gasoline on which the tax has been paid, may deduct from his next monthly statement and payment the amount of the tax on such gasoline, upon filing with the state auditor a written report thereof duly verified by oath, and also a certificate in writing signed by the officer, agent, or other employee of the Federal government making such purchase to the effect that such gasoline was purchased for the use of the Federal government, or some one or more of its departments, agencies, or instrumentalities.

Section 3 of the said act of 1928 defines the words "distributor or wholesale dealer," and particularly designates certain classes of persons, associations, and corporations that shall come within the meaning of the term distributor as used in the act, this section reading as follows:

"Every person, firm, co-partnership, corporation, or association of...