Gulfport Building & Loan Ass'n v. City of Gulfport

• Decision Date: 25 November 1929
• Docket Number: 28204
• Citation: 155 Miss. 498,124 So. 658
• Parties: GULFPORT BUILDING & LOAN ASS'N v. CITY OF GULFPORT
• Court: Mississippi Supreme Court

124 So. 658

155 Miss. 498

GULFPORT BUILDING & LOAN ASS'N v. CITY OF GULFPORT

No. 28204

Supreme Court of Mississippi

November 25, 1929

Division B

1 TAXATION. Exemption from taxation will never be presumed, in construing statute.

In construing statute, an exemption from taxation will never be presumed.

2 TAXATION. Tax exemption statute will not be enlarged by construction.

A tax exemption statute will not be enlarged by construction, since presumption is that statute expressly granted all that it intended to grant.

3 TAXATION. Tax exemption statute is construed strictly against person claiming exemption.

A tax exemption statute is construed strictly against person claiming exemption.

4. TAXATION. Privilege tax statute held to exempt building and loan associations alone from ad valorem taxes, except on real estate, and not from privilege taxes by towns and cities; "in lieu of all other taxes" (Hemingway's Code 1927, sections 6803, 7608).

Privilege tax statute, Laws 1926, chapter 118, section 53 (Hemingway's Code 1927, section 7608), providing, "above tax on building and loan associations shall be in lieu of all other taxes, whether state, county or municipal (except tax on real estate)," held to exempt building and loan associations alone from ad valorem taxes, except on their real estate, but not from privilege taxes by towns and cities authorized by Laws 1926, chapter 275, section 1 (Hemingway's Code 1927, section 6803), since language "in lieu of all other taxes" means all other taxes than privilege taxes by such municipalities.

5. STATUTES. If exemption of foreign building and loan associations from town privilege taxes is void, balance of privilege tax statute is valid (Hemingway's Code 1927, sections 7795, 7808).

If exemption of foreign building and loan associations under sections 221 and 234 of Laws 1926, chapter 118 (Hemingway's Code 1927, sections 7795, 7808), from privilege taxes of towns and cities, is void, as discriminatory, under equality clause of Constitution United States, Amendment 14, balance of statute is valid.

6. PLEADING. Pleading must be taken most strongly against pleader.

A pleading must be taken most strongly against the pleader.

7. PLEADING. Declaration basing plaintiff's right to recovery of tax paid on allegation that city was without authority to levy privilege tax must be construed as admitting that, if privilege tax was authorized, it had been legally levied.

Declaration, basing plaintiff's right to recovery of tax paid alone on allegation city was without authority of law to levy privilege tax, must be construed as admitting that, if privilege tax was authorized by law, it had been legally levied by city by means of an ordinance adopted as required by statute.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Action by the Gulfport Building & Loan Association against the City of Gulfport. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Gardner, Brown & Backstrom, of Gulfport, for appellants.

The rule with reference to the construction of a statute imposing privilege taxes, is that it must be strictly construed in favor of the taxpayer and against the taxing authorities and where the meaning is doubtful, privilege tax laws will not be construed as imposing burdens upon the citizen.

Wilby v. State, 47 So. 465; Board of Levee Commissioners v. Howze Mercantile Co., 116 So. 92.

Sections 7608 and 7808 of Hemingway's Code of 1927, provide for the taxation of domestic and foreign Building and Loan Associations.

It is manifest from these two Code sections that foreign Building and Loan Associations, although maintaining branch offices or agencies in a municipality of the state of Mississippi are clearly exempt from paying any privilege tax whatsoever to a municipality. If this court should not construe these statutes to mean a domestic association must pay a municipality a privilege tax, appellant sees no escape from the conclusion that such are discriminated against in favor of their foreign competitors.

Section 7608 of Hemingway's Code of 1927, needs no construction by this court, or any other court. Its plain language controls, and speaks forth its meaning. Its wording is free from doubt and ambiguity. It sets forth clearly the liability and all the liability of Building and Loan Associations for taxes to this state or subdivisions thereof.

Any construction of section 7608 of Hemingway's 1927 Code authorizing a municipality to levy and collect a municipal privilege tax on Building and Loan Associations must be a doubtful interpretation and the levy must fail.

Ex parte Taylor, 58 Miss. 478; State ex rel. Collins, Attorney-General, v. Grenada Compress Co., 85 So. 137.

There is no allegation that the city of Gulfport had passed an ordinance levying this privilege tax and no municipality has a right to levy a privilege tax until the proper ordinance is enacted.

State ex rel. Collins, Attorney-General, v. Grenada Cotton Compress Co., 85 So. 137.

Heiss & Heiss, of Gulfport, for appellee.

An exemption from license taxation under a constitutional or statutory provision is in derogation of common right and must receive a strict interpretation and no claim to exemption can be sustained unless it is clearly within the scope of the exempting clause. The existence of an exemption will not be presumed, but must be clearly proved, and if there is any doubt the uncertainty will be resolved against the exemption.

37 C. J. 237; 37 Cyc. 892 (2).

A privilege license is a tax, but it does not fall under the head of "all other taxes." Section 7608 of Hemingway's Code of 1927 having declared that a privilege tax should be levied on behalf of the state, and that it shall be in lieu of all other taxes excepting taxes on real estate, necessarily means that it shall be to the exclusion of all classes or kinds of taxes other than privilege taxes.

Section 181 of the Constitution of 1890.

The allegations of facts and contention of the appellant are clearly set forth in the declaration and had it relied on the failure of the city of Gulfport to enact an ordinance levying this privilege tax, this matter should have been set out in appellants' pleadings.

OPINION

Anderson, J.

Appellant brought this action against appellee in the circuit court of Harrison county, to recover of the latter the sum of five hundred dollars, being the aggregate of several years' privilege taxes paid by appellant to appellee for the privilege of conducting a building and loan business in the city of Gulfport. Appellee demurred to appellant's declaration, which demurrer was by the court sustained, and the action dismissed. From that judgment, appellant prosecutes this appeal.

The declaration, leaving out the formal parts, follows:

"Now comes the Gulfport Building & Loan Association, a corporation organized and existing under the laws of the state of Mississippi with its domicile in Gulfport, Harrison county Mississippi, and complains of the city of Gulfport, a municipal corporation organized and existing under the general laws of the state of Mississippi governing municipalities, with its domicile in Harrison county, Mississippi, Joseph W. Milner, Miss Florence Cassibry, and George Odom, Mayor and Commissioners respectively of said municipality and resident citizens of Harrison county, Mississippi, and for cause of action would show unto the court the following facts, to-wit:

"That on and prior to May 1, 1924, the Gulfport Building & Loan Association, plaintiff herein, was engaged in the business of making loans in Gulfport, Harrison county, Mississippi. That for the purpose and privilege of doing business it had secured a privilege tax license from the auditor of the state of Mississippi, as required by section 6484 of Hemingway's 1917 Code. That it has paid all taxes duly levied and assessed against it, and has paid all privilege taxes required under said section to be paid to the state of Mississippi. That the said privilege taxes due the state of Mississippi have been paid each year as required by said section from the date of organization in 1912 to date.

"Plaintiff would show that on May 31, 1923, that it paid to the city of Gulfport the sum of seventy-five dollars for privilege tax license, said license being signed by Miss Florence Cassibry tax collector and numbered 7531, a copy of said receipt is hereto attached, marked 'Exhibit A' and made a part of this declaration. That on May 26, 1924, the plaintiff paid to the defendant the sum of seventy-five dollars for privilege taxes under tax receipt No. 119, which said receipt was signed by Miss Florence Cassibry, tax collector, a copy of same is hereto attached, marked 'Exhibit B' and made a part of this declaration. That on May 30, 1925, plaintiff paid to the defendant the sum of seventy-five dollars for privilege taxes, as will be shown by tax receipt No. 1048, signed by Miss Florence Cassibry, tax collector, a copy of which is marked 'Exhibit C,' hereto attached and made a part of this declaration. On May 31, 1926, the plaintiff paid to the defendant the sum of seventy-five dollars for privilege taxes under tax receipt No. 40, a copy of said receipt being hereto attached, marked 'Exhibit D.' That on May 24, 1927, plaintiff paid to the defendant the sum of one hundred dollars for privilege taxes, as shown by tax receipt No. 930 signed by Miss Florence Cassibry, tax collector, a copy of which is attached hereto, marked 'Exhibit E,' and made a part of this declaration. That on May 31, 1928, under tax receipt No. 1775 plaintiff herein paid to the defendant the sum of one hundred dollars for privilege taxes, as shown by copy of tax receipt hereto...