Gully v. Wilmut Gas & Oil Co

• Decision Date: 10 February 1936
• Docket Number: 32075
• Citation: 165 So. 620,174 Miss. 794
• Parties: GULLY, STATE TAX COLLECTOR, v. WILMUT GAS & OIL CO
• Court: Mississippi Supreme Court

165 So. 620

174 Miss. 794

GULLY, STATE TAX COLLECTOR, v. WILMUT GAS & OIL CO

No. 32075

Supreme Court of Mississippi

February 10, 1936

Division B

1 TAXATION.

County supervisors' order granting statutory tax exemption to certain enterprises of public utility held not incomplete where, under statute, order became effective within specified time in absence of petition for election, notwithstanding statutory provision for order declaring it to be supervisors' "intention" to grant tax exemption (Code 1930, sections 3109,3110;Constitution, section 182).

2 TAXATION.

Statutory tax exemption to new enterprises of public utility held not waived merely by delay in claiming exemption, or by antecedent payment of taxes, provided claim is made within five-year exemption period (Code 1930, sections 3109-3112;Constitution, section 182).

3 TAXATION.

Where corporation was entitled to tax exemption as new enterprise of public utility, purchaser of corporation's property at foreclosure sale held entitled to similar exemption for balance of five-year exemption period (Code 1930, section 3109;Constitution, section 182).

4.CONSTITUTIONAL LAW.Taxation.

Statutes under which county supervisors' order granting statutory tax exemption to new enterprises of public utility becomes effective within specified time in absence of petition for election held not unconstitutional as granting legislative power (Code 1930, sections 3109--3112;Constitution, sections 33,182).

HON. W J. PACK, Judge.

APPEAL from the circuit court of Forrest countyHON. W. J. PACK, Judge.

Action by J. B. Gully, State Tax Collector, against the Wilmut Gas & Oil Company.Judgment for defendant, and plaintiff appeals.Affirmed.

Affirmed.

E. C. Fishel, of Hattiesburg, for appellant.

The statutes and their meaning must be strictly construed against the exemptionist.

Greenville Ice & Coal Co. v. Greenville, 69 Miss. 86, 10 So. 574;Adams County v. National Box Co.,88 So. 168, 125 Miss. 598;Gulfport Bldg. & Loan Assn. v. City of Gulfport,124 So. 658, 155 Miss. 498;Magnolia Bldg. & Loan Assn. v. Miller,128 So. 585, 51 S.Ct. 86, 282 U.S. 803, 75 L.Ed. 722;State v. Union Tank Car Co.,119 So. 310, 151 Miss. 797;Currie-Finch Brick & Lbr. Co. v. Miller,86 So. 579, 123 Miss. 850;New Standard Club v. McRaven,71 So. 289, 111 Miss. 92, Ann. Cases1918E, 274;Hollandale Ice Co. v. Board of Supervisors, Washington County,157 So. 689;Leaf Hotel Corp. v. Hattiesburg, 150 So. 779, 168 Miss. 304;61 C. J. 391.

If the board of supervisors have the right to grant the exemption in spite of the Constitution, we respectfully submit to the court that by section 3110, of the Code all and the most that the board of supervisors could do under this first order was to give notice of its intention to exempt from ad valorem taxation.The court will bear in mind that this was the order entered at the May, 1931, session of the board of supervisors, the board of supervisors having made and entered no order after entering this order, until June 7, 1933.

Sections 3109 to 3112, Code of 1930;15 C. J. 842, sec. 162;Williams v. Cammack,27 Miss. 209;Turner v. Thomas, 77 Miss. 866, 28 So. 803.

It is true that the statute fixes that the exemption as to corporations shall go into effect from the date of the charter, if a corporation, but nothing in the statute indicates that a corporation must get the benefit of the exemption, and nothing in the statute confers jurisdiction on the special court of limited jurisdiction in this suit by the exemptionist against the taxpayers pending before the board of supervisors, except those acts prescribed by statute as being necessary, and the doing of them must appear on the record of the inferior tribunal to give that tribunal jurisdiction.

15 C. J. 842;Bolivar County v. Coleman,15 So. 107, 71 Miss. 767;Lay v. Shores,72 So. 881, 112 Miss. 140;Green v. Board of Supervisors,161 So. 139;Currie-Finch Brick & Lbr. Co. v. Miller,86 So. 579, 123 Miss. 850;Leaf Hotel Corp. v. Hattiesburg, 150 So. 779, 168 Miss. 304.

The taxes for 1933 had clearly accrued and become a lien before the applicant itself had made any application or any move to procure its alleged rights to claim exemption.

61 C. J. 391, sec. 394;Bank of Oxford v. Board of Mayor,12 So. 203, 70 Miss. 504.

It is true that the trial court in its opinion held that the application provided for in section 3111, Code of 1930, could be filed at any time.We agree that it could be filed at any time within five years from the date of its charter, where a corporation, but that under the law no exemption began or could be obtained until this application was filed; and therefore, under the existing state of facts in this case, the property would have been taxable for the year 1933, at all events.To hold otherwise it would be necessary to give the application filed in August, 1933, retroactive effect and make it effective as of January 1, 1933, the date the tax lien attached, and to give the order adjudicating the initial notice of intention to exempt retroactive effect to January 1, 1933, this order being entered August 11, 1933, by the board of supervisors.Section 100 of the Constitution of 1890, would preclude giving this effect to this order.

McHenry Baptist Church v. McNeal, 38 So. 195, 86 Miss. 22;William G. Halkett Co. v. City of Philadelphia, 175 A. 299.

A person must bring himself within the statute to obtain benefits.

Hollandale Ice Co. v. Board of Supervisors, Washington County, 157 So. 689.

Exemptionist must do all required to be done under the law before exemption is effective.

61 C. J. 391, sec. 394;Bank of Oxford v. Board of Mayor, etc.,12 So. 203, 70 Miss. 504.

Burden of proof is on exemptionist.

61 C. J., page 411, sec. 429, and page 412, sec. 430.

Exemptions are not retroactive.

Section 100, Constitution of 1890;Adams v. Fragiacomo,71 Miss. 417, 15 So. 798;McHenry Baptist Church v. McNeal, 38 So. 195, 86 Miss. 22;William G. Halkett Co. v. City of Philadelphia, 175 A. 299.

We submit and earnestly urge upon the court that section 3110 of the Code of 1930, is unconstitutional and void and violative of section 33andsection 112 of the Mississippi Constitution of 1890.

The Legislature cannot delegate to the whole or any portion of the people, or to any other department of the government, its power to make laws.

Alcorn v. Hamer, 38 Miss. 652;Clark v. State,152 So. 820, 169 Miss. 369.

John R. Tally, of Hattiesburg, and Green, Green & Jackson, of Jackson, for appellee.

The statutes here are plain, so that no construction is necessary; and no interpretation will be adopted by the courts which "will ascribe to the Legislature intention to be unfair and unjust . . . so . . . as to cause unthoughtof results."

Section 3110, Code of 1930, was enacted by the Legislature pursuant to the taxation provisions of Mississippi's Constitution: Section 112, "Taxation shall be uniform and equal throughout the state.Property shall be taxed in proportion to its value . . .;"Section 181, "The property of all private corporations for pecuniary gain shall be taxed in the same way and to the same extent as the property of individuals . . ."

Adams v. Tombigbee Mills, 78 Miss. 676, 692, 29 So. 470.

Section 3110 is a general law prescribing the terms under section 182, whereby this exemption may be made operative.The board "may enter an order on its minutes declaring it to be the intention of the board of supervisors to exempt from ad valorem taxation . . . all new factories and new enterprises of public utility."But the law did not stop there; it then said, "Such order shall be spread on the minutes . . . and shall thereafter be published in two issues of some weekly newspaper having a general circulation in said county."

Jackson v. Edwards House Co., 145 Miss. 135, 110 So. 231.

Tax exemptions of this type are assignable.

Robertson v. Mississippi Packing Co., 134 Miss. 837, 98 So. 539.

The exemption attaches to the property, not to the person.

New Jersey v. Wilson, 3 L.Ed. 303, 7 Cranch 164, 165;Shoats v. Trapp,224 U.S. 675, 56 L.Ed. 946;Gleason v. Wood,244 U.S. 679, 56 L.Ed. 947;English v. Richardson,224 U.S. 680, 56 L.Ed. 949;Grand Canyon R. Co. v. Treat,95 P. 189;Morris Canal & Banking Co. v. State Board, 71 A. 329.

Initially, the Legislature possessed plenary power to exempt.

Moseley v. Mobile & Ohio R. Co., 52 Miss. 127;Mississippi Mills v. Cook,56 Miss. 40, 50;Adams v. Railroad Co., 77 Miss. 194.

Pursuant to the provisions of sections 112,181,182, beginning in 1892, and continuing continuously save for a period of about ten years, these property exemptions have been continuously in effect.

The order appeared at large in Minute Book 12, page 539, and was published in the Hattiesburg American on May 8th and May 15th, 1931.No petition was filed and thereafter the supervisors and this appellee, as well as all other persons, have assumed that said order was thus operative and have in reliance thereon acted.

Robertson v. Miss. Packing Co., 98 So. 539, 134 Miss. 837;Morris v. Riley,99 So. 466, 468, 135 Miss. 1;Jackson v. Fire Insurance Co.,95 So. 845, 132 Miss. 415; Ethridge, "Mississippi Constitutions,"page 340;Adams v. R. R. Co.,77 Miss. 194;City of Jackson v. Edwards House Co.,110 So. 232;Adams v. Tombigbee Mills,78 Miss. 676;Board v. Merck,120 So. 839, 153 Miss. 346;City of Jackson v. Trust Co.,133 So. 198;Miller v. Lamar Life Ins. Co.,131 So. 285;Board of Supervisors v. Military Academy,126 Miss. 729, 89 So. 615;Adams v. Winona Cotton Mills, 92 Miss. 743, 40 So. 401.

Obviously that at which section 182 was aimed was the irrepealable grant in perpetuity of immunity, not the grant...