Clarksdale Building & Loan Ass'n v. Board of Levee Com'rs for Yazoo-Mississippi Delta

• Decision Date: 13 November 1933
• Docket Number: 30790
• Parties: CLARKSDALE BUILDING & LOAN ASS'N v. BOARD OF LEVEE COM'RS FOR YAZOO-MISSISSIPPI DELTA
• Court: Mississippi Supreme Court

150 So. 783

168 Miss. 326

CLARKSDALE BUILDING & LOAN ASS'N v. BOARD OF LEVEE COM'RS FOR YAZOO-MISSISSIPPI DELTA

No. 30790

Supreme Court of Mississippi

November 13, 1933

Division B

Suggestion Of Error Overruled December 11, 1933.

APPEAL from circuit court of Coahoma county, HON. WM. A. ALCORN Judge.

Action by the Clarksdale Building & Loan Association against the Board of Levee Commissioners for the Yazoo-Mississippi Delta. From a judgment of the circuit court affirming a judgment of the county court dismissing the suit, plaintiff appeals. Affirmed.

Affirmed.

E. W. Smith, of Clarksdale, and Pat D. Holcomb, of Greenwood, for appellant.

Building & Loan Associations in Mississippi are among the few corporations favored by the Constitution of our state and to which special privileges are accorded.

Section 181 of article 7 of the Constitution of 1890.

It is apparent that the Constitutional framers, in order encourage the establishment of corporations in Mississippi for home building, expressly granted the authority to the Legislature to favor such Associations even to the extent of excluding Building & Loan Association corporations from the quality clause appearing in the first part of section 181.

The right and power of the levee district to levy a privilege tax on trades, callings and occupations within said district is embraced in chapter 80 of the Laws of 1902. This law was passed by the Legislature pursuant to the authority granted it in section 237 of the Constitution.

Section 246 of said Act restricts boards of supervisors of any county from levying any of the privileges taxed by the chapter and limits a tax fifty per cent of the amount levied in the chapter to be taxed by municipalities. The same provisions appear in chapter 89 of the Laws of 1932.

It appears that the Legislature in behalf of the sovereign levied a state wide tax upon Building & Loan Associations in lieu of all taxes, except taxes on real estate, thereby under section 1, on the payment of the state-wide license tax authorizing Building & Loan Associations "to engage in the business . . . for the period of time under the conditions specified therein throughout the entire state" and the license thus paid is "usable, good and valid in each and every county of the state." The tax thus levied is three hundred dollars per annum on the class of Building & Loan Associations of appellant.

Magnolia Building & Loan Ass'n v. W. J. Miller, State Tax Collector, 128 So. 85; Gulfport Building & Loan Ass'n v. City of Gulfport, 155 Miss. 498; Wilby v. State, 93 Miss. 767.

The privilege tax laws are construed strictly in favor of the citizen and against the state or other taxing power.

State, ex rel. Attorney-General, v. Mississippi Power & Light Co., 138 So. 567, 161 Miss. 839; Board of Levee Commissioners v. Howze, 149 Miss. 843; American Petroleum Corp. v. Miller, 154 Miss. 565; Union Tank Co. v. State, 151 Miss. 797; Cumberland Telephone & Telegraph Co. v. State, 99 Miss. 1.

In construing ambiguous statutes, it is competent not only to look at the statute being construed, but also at the law, which was in existence prior to the enactment of the statute in question.

State v. Taylor, 100 Miss. 544; Ascher & Baxter v. Edward Moyse & Co. (Miss.), 57 So. 299.

There are many instances where the Legislature has imposed state taxes on specific callings, professions or corporations and specifically withheld this right from any of the political subdivisions of the state.

Royal Insurance Co. v. Board of Levee Commissioners, 95 Miss. 168; Riley v. Ammon, 143 Miss. 861.

Full effect must be given to the intention of the Legislature in passing the Acts of 1930 and 1932.

Planters Bank v. State, 6 S. & M. 628; Grand Gulf Bank v. Archer, 8 S. & M. 151; Green v. Weller, 32 Miss. 650; N. O., etc. R. R. Co. v. Hemphill, 35 Miss. 17; Learned v. Corley, 43 Miss. 687; Eskridge v. Magruder, 45 Miss. 294; Barnes v. Greer, 56 Miss. 710; Adams v. Y. & M. V. R. R. Co., 75 Miss. 275; Gunter v. City of Jackson, 94 So. 844.

J. A. Tyson, of Greenwood, for appellee.

Section 1 of chapter 80 of the Acts of 1902, reposed the power in appellee, Levee Board, "to levy a tax upon all privileges exercised or which may hereafter be exercised within the limits of the said levee district and to amend, repeal or change the levy made by them, but the said privilege taxes shall in no case exceed the taxes levied by the state on the same privileges." This statute authorized, in express terms, the appellee, Levee Board to levy the same privilege taxes both in amount and upon the same business as would the state at any time; just as other general statutes of the state permitted a city or municipality to levy privilege taxes on the same business as does the state, but with a restriction always on the municipality in the amount of the tax levied to the extent of fifty per cent of what the state would levy. This general statute reposing the power in the Levee Board to levy privilege taxes has remained in full force and effect since its passage and, under the authority conferred, and Levee Board has by its own ordinances levied the same privilege taxes as has the state, and did so in the case at bar.

The very language of sections 246, Laws of 1930, and 258, Laws of 1932, to the effect that the power and authority of the Board of Levee Commissioners was not to be limited or restricted is too clear to need further discussion.

In accordance with the principle that 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 in point of time or order of arrangement prevails provided that the conflicting provisions cannot be so reconciled as to show the legislative intent.

59 C. J. 999 (596); Gibbons v. Brittenum, 56 Miss. 232; Coker v. Wilkerson, 106 So. 886.

The provisions of said sections 246 and 258 first appeared in chapter 238 of the Laws of 1928, which is a later law than that considered in either the city of Gulfport case, supra, or in the Riley v. Ammons case, that considered in the Gulfport case being chapter 118 of the Laws of 1926, and that considered in the Riley v. Ammons case being chapter 155 of the Laws of 1918.

It is submitted that the omission of the word, "other," from the 1930 and 1932 privilege laws in limiting the imposition of taxes on Building & Loan Associations does not change the effect of the holding in the city of Gulfport case, which was to the effect that privilege tax licenses could be imposed by a municipality; and, necessarily, also by the Levee Board.

It is not necessary to go far afield in court decisions seeking a solution of the question in this case, as regards the first contention of appellant, of whether or not the Levee Board is a municipal corporation within the meaning of the privilege tax laws of 1930 and 1932, which are under discussion. The solution of this question is found in the specific provisions of these particular privilege tax laws which show clearly that the Levee Board was not considered as or intended thereby, to be embraced in the category of "municipal" corporations, so far as the levying of privilege taxes under these particular laws is concerned.

Section 246 of Chapter 88 of the Laws of 1930; Section 258 of chapter 89 of the Laws of 1932.

The appellee, board, denies the soundness of the second contention of appellant, that the payment to the state of this state wide tax for a "state wide license" absolved the appellant, Building & Loan Association, from the obligation of paying a tax to the Levee Board for the exercise of the same privilege; the Levee Board, by proper ordinance, if not invalid as contended by appellant, having fixed this tax and collected same. It could, with equal reason, be maintained that the "state license" which, under its definition in said section 1 of chapter 88, gives the right to the holder to do business only in the county in which it was issued, when issued by the state, would preclude the Levee Board from levying and collecting for similar licenses. If such contention be correct, and it would seem to be as correct as the contention made here, the power and authority so long exercised by the Levee Board in levying and collecting privilege taxes would be utterly destroyed, not by direction but by indirection.

OPINION

Anderson, J.

Appellant brought this action against appellee in the county court of Coahoma county to recover the sum of seven hundred sixty-five dollars and ninety-three cents, representing the privilege taxes levied against and collected from appellant by appellee for the three-year period from July 1, 1930, to July 1, 1933,...