Gully v. Eastman-Gardiner Lumber Co.

• Decision Date: 20 November 1933
• Docket Number: 30753,30752
• Citation: 168 Miss. 100,151 So. 170
• Court: Mississippi Supreme Court
• Parties: GULLY, STATE TAX COLLECTOR, v. EASTMAN-GARDINER LUMBER CO. et al. (TWO CASES)

151 So. 170

168 Miss. 100

GULLY, STATE TAX COLLECTOR, v. EASTMAN-GARDINER LUMBER CO. et al. (TWO CASES)

Nos. 30752, 30753

Supreme Court of Mississippi

November 20, 1933

Division A

TAXATION.

State tax commission has power to assess electric power company only as to property not situated wholly in one county, and property wholly within one county may be assessed by county or city authorities (Code 1930, sections 3204, 3208, 3209, as amended by Laws 1932, chapter 291, sections 1-3).

HON. W J. PACK, Judge.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Separate proceedings by J. B. Gully, state tax collector, to assess for back taxes of an electric light plant owned by the Eastman-Gardiner Lumber Co. The county board of supervisors of Jones county and the board of mayor and aldermen of the city of Laurel declined to make the assessment, the circuit court dismissed the proceedings on appeal, and the state tax collector appeals. Judgment of circuit court reversed, and causes remanded.

Reversed and remanded.

S. L McLaurin, of Brandon, and May, Sanders, McLaurin & Byrd, of Jackson, for appellant.

If only the state tax commissioners are the assessors of such property, then the judgment appealed from should be affirmed; but, if the local taxing authorities are invested with the power to make the additional assessment, or in other words, if the county tax assessor, under the law, is the assessor of such property situated wholly within his county, then the judgment appealed from must be reversed and the cause remanded.

We maintain that unless this property--an electric lighting franchise in a municipality and an electric distribution system operated wholly within the municipality and wholly within one county--is situated in more than one county, then, under section 3208, Code of 1930, the state tax commission has no power to make the assessment, but that it can only be made by the local taxing authorities. Section 3208, Code of 1930, was first enacted as chapter 138, Laws 1918; later amended by chapter 127, Laws 1926; brought forward as section 3208, Code of 1930, and amended by section 2, chapter 291, Laws 1932.

Considering the history of this legislation, the conclusion is inescapable to us that properties embraced within the language of the statute, as being assessable by the state tax commission, can only be assessed by the state tax commission, and if this property was not situated wholly within Jones county, under section 3208-- being property specifically named in section 3208--it would be assessable by the state tax commission; but since it is property specifically named in section 3208 and is situated wholly within one county, then it seems obvious that it must be assessed by the local taxing authorities, as otherwise the language in section 3208, "any electric power and light company owning property not situated wholly in one county," or particularly the words "not situated wholly in one county" would be meaningless.

The meaning and effect of paragraph (a), section 1, chapter 291, Laws of 1932, is that this provision directs the apportionment of the assessed value of such public utility, as the preceding paragraph of section 1 makes it the duty of the state tax commission to assess for taxation.

This is one class of properties to be assessed by the railroad assessors. The other class of properties to be assesed by the railroad assessors is "any telephone, water works or electric power and/or any electric light company property not situated wholly in one county . . ."

The property here involved (electric power and/or any electric light company property situated wholly in one county) does not come within either, class of properties required to be assessed by railroad assessors, because it is situated wholly within one county. Hence, paragraph (a) does not affect this property but only affects the property within one of the two classes above enumerated; thus leaving electric light company property situated wholly within one county, and not included in either of the two classes required to be assessed by the railroad assessors, in another class to be assessed for taxation by the local taxing authorities before whom this proceeding was commenced.

If the court should hold that chapter 291, Laws 1932, directs the state tax commission to assess the property here involved, for the period involved, to-wit: the years 1928, 1929, and 1930, then this statute would be violative of section 112 of the constitution, because of the mandatory provision of said chapter 291, in section 4 of the act.

Giving effect to this section would require the property to be valued and assessed as of January 1, 1932; whereas, the true value of the property for each of the years 1928, 1929 and 1930, might be materially different from the value as of January 1, 1932. This section clearly implies that the act, of which it is a part, is to have prospective operation only, commencing with the year of its enactment--1932.

C. S. Street and Deavours & Hilbun, all of Laurel, and T. J. Wills, of Hattiesburg, for appellee.

While there is nothing in the record to show that the taxpayer against whom the taxes are sought to be levied on, did not own other like property situated outside of Jones county, but assuming for the sake of argument, that it is true that the property involved in situated wholly in Jones county, nevertheless the judgment of the lower court is proper.

Teche Lines, Inc., v. Board of Supervisors of Forrest County, 143 So. 486; Section 3200, Code of 1930; Paragraph A, chapter 291, Laws of Mississippi of 1932.

We submit that the Teche Lines case, 143 So. 496, settles this contention in favor of appellees. But should there be any doubt as to the rule adopted by the court in that case, this doubt is completely removed by the enactment of May 18, 1932, of chapter 291 of the Laws of 1932, and especially by paragraph A thereof.

Chapter 291, Laws of 1932, was approved May 18, 1932. The hearing before the board of supervisors and the trial in the circuit court were all had subsequent to the enactment of the said chapter 291, Laws of 1932.

The said chapter merely provides a method of procedure and a remedy for the proper assessment of taxes of property of the kind and character involved in this suit. No substantive rights are involved.

The presumption against retrospective construction of statutes as a general rule does not apply to statues that relate merely to remedies and modes of procedure.

59 C. J., pp. 1173-4, section 700; 36 Cyc. 1213; Belcher v. Mhoon, 47 Miss. 613; Easterling Lumber Co. v. Pierce, 64 So. 465; Myers et al. v. Lamb-Fish Lumber Company, 64 So. 728.

The meaning and effect of paragraph A, section 1, chapter 291, Laws of 1932, is directory to, the state railroad assessors only and directs them to do.

We do not at all contend that chapter 291, Laws of 1932, confers the power upon the state tax commission to assess the property of electric power and electric light companies. Section 3200 of the Code of 1930, specifically designates and empowers the state tax commission as the assessors of railroads and other public service corporations to make the assessments. That section is practically the same as section 1, chapter 138, Laws of 1916, so that, according to our interpretation of the law, the state tax commission were the assessors of electric light and power companies. The provision of chapter 291, Laws of 1932, is only directory and points out the manner in which the tax commission, as assessors of the particular property, shall proceed in making the assessment.

The state tax commission has been the assessor of railroads and of public service corporations since the passage of chapter 138, Laws of 1916. Chapter 291, Laws of 1932, is directory only.

Chapter 291 of the Laws of 1932, is in no sense, a delegation of power to the state tax assessors. It is a specific direction to...