Craig, State Auditor v. Mississippi Power & Light Co

• Court: Mississippi Supreme Court
• Writing for the Court: McGowen, J.
• Citation: Craig, State Auditor v. Mississippi Power & Light Co, 180 So. 604, 182 Miss. 299 (Miss. 1938)
• Decision Date: 25 April 1938
• Docket Number: 33119
• Parties: CRAIG, STATE AUDITOR, v. MISSISSIPPI POWER & LIGHT CO

180 So. 604

182 Miss. 299

CRAIG, STATE AUDITOR, v. MISSISSIPPI POWER & LIGHT CO

No. 33119

Supreme Court of Mississippi

April 25, 1938

Division A

Suggestion Of Error Overruled June 6, 1938.

APPEAL from the circuit court of Hinds county, HON. J. P. ALEXANDER Judge.

Action by the Mississippi Power & Light Company against Joe S Price, State Auditor of Public Accounts, for the amount of taxes paid under protest. The action was revived against Carl Craig, the original defendant's successor in office. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

W. W. Pierce, Assistant Attorney-General, for appellant.

We are cognizant of the burden we have assumed in prosecuting this appeal to this court. This is the seventh time we have appeared in this court in cases wherein the right to collect taxes levied and imposed by the statute involved in this case has been in controversy. The cases to which we refer as having heretofore dealt with the statute are:

Hudson v. Stuart, 166 Miss. 339; State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526; Price v. Haney, 174 Miss. 176; Price v. Haney, 165 So. 815; State ex rel. Rice v. City Bus Co., Inc., 176 Miss. 597; State ex rel. Rice v. Hasson Grocery Co., 177 Miss. 204.

In all of the cases above mentioned, there was involved the right to collect motor vehicle taxes levied by Chapter 135 of the General Laws of Mississippi, 1932, and Chapter 126 of the General Laws of Mississippi, 1934. The 1934 act was a reenactment of the 1932 act without material change insofar as the taxes involved in this controversy is concerned.

The appellee is liable for the taxes levied by Section 5 of Chapter 126 of the General Laws of Mississippi 1934, and by reason thereof is not entitled to recover from the state auditor the taxes paid under protest and for which this action was brought.

Our contentions, we submit, are (a) that under the provisions of Chapter 126 of the General Laws of Mississippi 1934 each of the vehicles operated by appellee is a "bus;" (b) that each of these busses is a "commercial motor vehicle;" (c) that the appellee is an "operator" within the meaning of this statute; (d) that appellee is a "common carrier by motor vehicle;" (e) that it operates on the "public highway" within the meaning of this act; (f) that it is "engaged in the business of carrying passengers for hire;" (g) that the only vehicles not taxed by Chapter 126 of the General Laws of Mississippi 1934, or, in other words, the only vehicles that are exempt from the provisions of the act by reason of not being included therein for the purpose of taxation are "road rollers, street sprinklers, fire engines, fire department apparatus police patrol wagons and locomotives or cars operated on rails or tracks." Those vehicles being excepted from the act in sub-section (19) of Section 1 of Chapter 126 of the Laws of 1934; and (h) those vehicles or operators mentioned in Chapter 183 of the General Laws of Mississippi, to-wit: municipalities, levee district board or drainage district; (i) that it matters not whether appellee has a certificate of public necessity and convenience from the Railroad Commission, neither does it matter that its vehicles are used in lieu of street cars.

In order to demonstrate the correctness of our contentions, we direct the court's attention to Section 1 of the act. This section is a series of definitions for the purposes of the act. The Legislature having defined certain words and phrases, the legislative definition is controlling and binding on the court.

Mathiston v. Brister, 166 Miss. 67.

Sub-section (3) of Section 1 of the act defines the word "bus" to mean any motor vehicles designed for carrying passengers, except a school bus used exclusively as such, and engaged in the business of carrying passengers for hire.

In sub-section (11) of Section 1 of the act, the term "common carrier by motor vehicle" is defined to include any common carrier of person and any common carrier of property operating one or more motor vehicles for compensation over fixed routes or between fixed terminis. Therefore, since the agreed statement of facts stipulates that the appellee operates on a regular schedule and over a regular and fixed route, and between fixed termini and transports all persons who present themselves for transportation and pay the fare required of them, from point to point on its route, or routes, there can be no argument that the appellee is not a common carrier as defined by the act.

In sub-section (9) of Section 1 of Chapter 126, Laws of 1934, the term "public highway" is defined to include public roads, highways, streets and bridges in this state.

State ex rel. Rice v. Evans-Terry Co., 173 Miss. 526.

We think it clear that appellee is an operator; that each of its vehicles is a bus; that each bus is a commercial motor vehicle; that it operates on the public highway; that it is a common carrier and engaged in the business of carrying passengers for hire within the meaning of Chapter 126 of the Laws of 1934. Under the agreed statement of facts the appellee comes within the definitions of sub-sections (1), (3), (5), (9) and (11) of Section 1 of the act.

But it was argued in the trial court, and we assume it will be argued here, that by inserting the parenthetical clause (except as provided in Section 1 hereof) in Section 3 of the act, it was intended by the Legislature that appellee's operations were not to be taxed. We submit that the parenthetical clause is given its full meaning by reference to sub-section (1) of Section 1 of the act wherein it is provided that the term "motor vehicles" shall not include any road rollers, street sprinklers, fire engines, fire department apparatus, police patrol wagons and locomotives or cars operated on rails or tracks. The vehicles just mentioned were not included in the act and, hence, not taxable under the act, from which it is made clear by the parenthetical clause that those vehicles not included in the act were not taxed for the use of the highways.

The question now before the court is here for the first time. The only case which remotely touches the question now under consideration is the case of State ex rel. Rice v. City Bus Company, 176 Miss. 595.

We do not think it will be seriously argued that the appellee is not an operator under the provisions of Chapter 126 of the Laws of 1934.

Section 17 of the act requires every operator within the provisions of the act to file with the Auditor of Public Accounts on or before the tenth day of each month a report and, among other things, there is required to be given the actual miles of public highway of the state traveled during the preceding calendar month by each motor vehicle. The appellee being an operator of motor vehicles for hire, and a common carrier of persons, failure of the State Auditor to make actual demand for the tax, would not create an exemption.

The court is not empowered to make a new law by judicial construction, and create an exemption from the tax by a construction of Section 1 of the Act to permit an exemption, where none can be found therein, clearly expressed.

Abbott v. State, 106 Miss. 340; Holly Springs v. Marshall Company, 104 Miss. 752; Prather v. Googe, 108 Miss. 670.

There are no express words in the entire act granting an exemption to appellee. The court should not conclude that this has been done by implication.

A motor vehicle operator claiming an exemption from payment of taxes imposed by Chapter 126 of the Laws of 1934 must affirmatively show an exemption expressly declared in the statute; and that such operator is clearly within the terms of the statute, providing for the exemption.

Y. & M. V. R. R. Co. v. Adams, 180 U.S. 1, 45 L.Ed. 385, 77 Miss. 194.

There is no principle of law better settled by this court than that a statute under which an exemption is claimed to exist, the right to the exemption must be clearly expressed in the statute, and the claimant must come clearly within the terms of the statute.

Morris Ice Co. v. Adams, 75 Miss. 410; Barnes v. Jones, 139 Miss. 675; New Standard Club v. McGowan, 111 Miss. 92; Bd. of Suprs. v. Merck & Alston, 153 Miss. 346; Adams v. R. R. Co., 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 395.

Exemption from taxation will never be presumed. This court cannot presume that the appellee is exempt from payment of mileage taxes.

Morris Ice Co. v. Adams, 75 Miss. 410; Bd. of Suprs. v. Merck & Alston, 153 Miss. 346; Gulfport Building & Loan Assn. v. City of Gulfport, 155 Miss. 498; R. R. Co. v. Adams, 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 395; Magnolia Building & Loan Assn. v. Miller, 128 So. 585, 282 U.S. 803, 75 L.Ed. 722.

The claim of an exemption from taxation should never be enlarged by construction.

Barnes v. Jones, 139 Miss. 675; Bd. of Suprs. v. Merck & Alston, 153 Miss. 346; Building & Loan Assn. v. City of Gulfport, 155 Miss. 498; Leaf Hotel Corp. v. City of Hattiesburg, 168 Miss. 304; Teche Lines v. Bd. of Suprs., Forrest County, 165 Miss. 594; Building & Loan Assn. v. Miller, 128 So. 585, 282 U.S. 803, 75 F. 722.

A statute under which the right to an exemption is claimed to exist must be strictly construed against would be exemptionists; and if the right to the exemption clearly remains in doubt the claim must be denied.

New Standard Club v. McGowan, 111 Miss. 92; Greenville Ice Co. v. City of Greenville, 69 Miss. 86; Brick & Lumber Co. v. Miller, 123 Miss. 850; Adams Co. v. National Box Co., 125 Miss. 598; Barnes v. Jones, 139 Miss. 675; Board of Supervisors v. Merck & Alston, 153 Miss. 346; Building & Loan Assn. v. City of Gulfport, 155 Miss. 498; Leaf Hotel Corp. v. Hattiesburg, 168 Miss. 304.

The tax paid by appellee was not an unconstitutional exaction for the use...