Love Petroleum Co. v. Stone, Chairman of State Tax Commission
| Citation | 186 Miss. 793,191 So. 417 |
| Decision Date | 16 October 1939 |
| Docket Number | 33822 |
| Court | Mississippi Supreme Court |
| Parties | LOVE PETROLEUM CO. v. STONE, CHAIRMAN OF STATE TAX COMMISSION |
APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.
Suit by the Love Petroleum Company against A. H. Stone, Chairman of the State Tax Commission, to recover taxes paid under protest. Judgment for defendant, and plaintiff appeals. Affirmed.
Affirmed.
Green Green & Jackson, of Jackson, for appellant.
Under Section 75, Mississippi Constitution, Chapter 89, pursuant to Section 2 thereof, did not become operative until September 1, 1939.
Adams v. Railroad Co., 75 Miss. 275; Abbott v. State, 106 Miss. 340, 63 So. 667; Alexander v. Graves, 178 Miss. 583, 173 So. 419; Bobo v. Board of Levee Comrs., 92 Miss. 792, 46 So. 819; Clingan v State, 135 Miss. 621, 100 So. 185; City of Hazelhurst v. Mayes, 96 Miss. 656, 51 So. 891; Earhart v. State, 67 Miss. 325, 7 So. 347; Gregg Dyeing v. Query, 286 U.S. 472-482, 78 L.Ed. 1232; Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687; Gibbons v. Brittenum, 56 Miss. 232; Keifer v. Reconstruction Finance Corp., 83 L.Ed 515; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; Love v. State, 8 So. 465; Miller v. State, 81 Miss. 162, 32 So. 951; Miller v. Tucker, 140 Miss. 146, 105 So. 774; Miss. Cottonseed Products Co. v. Stone, 184 So. 428; Monaghan v. State, 66 Miss. 514; Roseberry v. Norsworthy, 155 Miss. 845, 100 So. 541; State v. Jackson, 119 Miss. 727, 81 So. 1; State v. Morgan, 79 Miss. 659, 31 So. 338; State v. Traylor, 100 Miss. 544, 56 So. 521; State v. Ware, 102 Miss. 634, 54 So. 854; Swift v. Sones, 142 Miss. 660, 107 So. 881; Texas Co. v. Wheeless, 187 So. 888; 11 Am. Jur., Sec. 69; 16 Am. Jur. 232; Chap. 119, Laws of 1934 as amended by Section 2 of Chap. 158, Laws of 1936; Chap. 156, Laws of 1936; Chap. 89, Extraordinary Session of 1938; Miss. Constitution, Sec. 75, Miss. Constitution, Sec. 169.
Under Chapter 156, Laws of 1936, the tax imposition on natural gas is 2 1/2%, and appellant admits that therefor it is liable. And then Chapter 89 was passed, wherein the provisions were sought to be amended thus "Oil, 2% . . . Natural gas, 10%; provided, however, that on and after March 1, 1939 the rate on natural gas shall be 2 1/2%." Section 2 of that act is: "That this act shall take effect and be in force from and after September 1, 1939."
Section 75, Mississippi's Constitution, provides: "No law of a general nature, unless therein otherwise provided, shall be enforced until sixty days after its passage."
The controversy is as to the rate of taxation in September, 1938. Unless there were affirmative legislation making the law operative at September 1, 1938, under the Constitution the tax could not be enforced until October 24, 1938, as the act was approved August 24, 1938. Section 75 of the Constitution is self-executing and prohibits the operation of this statute during September, unless therein "otherwise provided." We fail to find in this act any legislative adoption of September 1, 1938 as its effective date.
State v. Jackson, 119 Miss. 727, 81 So. 1; Love v. State, 8 So. 465; State v. Morgan, 79 Miss. 659, 31. So. 338; Miller v. State, 81 Miss. 162, 32 So. 951; Clingan v. State, 135 Miss. 621, 100 So. 185.
As said in 11 Am. Jur., Sec. 69:
So, in enacting Section 2 the legislature was consciously performing that of them mandatorily required, and we have it:
All doubts are resolved in favor of the taxpayer.
Texas Company v. Wheeless (Miss.), 187 So. 880; Mississippi Cottonseed Products Company v. Stone (Miss.), 184 So. 428; Swift v. Sones, 142 Miss. 660, 107 So. 881; Miller v. Tucker, 140 Miss. 146, 105 So. 774.
There are but two provisions in the act, one naming September 1, 1939, the other March 1, 1939, and it is fundamental that the legislative intent must come from the face of the statute, where these conflicting provisions both appear. Reconciliation should be had, if possible, and there is not a single argument that can be adduced for making the operative date September 1, 1938, that cannot be equally made to fix the expiration date at March 1, 1940.
Keifer v. Reconstruction Finance Corp., 83 L.Ed. 515; Mississippi Cottonseed Products v. Stone, 184 So. 428; Monaghan v. State, 66 Miss. 514.
The courts cannot reconstruct or enlarge the meaning of an unambiguous statute.
City of Hazelhurst v. Mayes, 96 Miss. 656, 51 So. 809; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; Abbott v. State, 63 So. 667; Alexander v. Graves, 178 Miss. 583, 173 So. 419.
Another inescapable reason why this judgment should be reversed is that the circuit judge substantially overruled Gibbons v. Brittenum, 56 Miss. 232. The case here is one wherein, in the statute, there are two dates in irreconcilable conflict, and where that occurs then the latter controls.
Where the statute is irreconcilable it may be void.
Alexander & Satterfield, of Jackson, amicus curiae in behalf of appellant.
We must not overlook the fact that we have before us solely the Act in question, which is Senate Bill No. 104 of the Extra Session of 1938, Laws of Mississippi. The Act was an amendment to Chapter 158 of the Laws of 1936, which in turn was an amendment to Chapter 119 of the Laws of 1934. An examination of the particular Act in question shows that the only change which was made in the previous Act of 1936 which is amended, was that the gas tax was changed, and in all other respects the Act remains the same. Therefore, as to other provisions of the Act in question this amendment has no force or meaning, but as to the gas tax the Act added this clause "10%; provided, however, that on and after March 1, 1939 the rate on natural gas shall be . . ."
This amendment to the Act which we have just quoted was inserted after the words "natural gas" in the second paragraph of Section 2 of the Act, and before the words "two and one-half per cent." To anyone reading the Act it was obvious that the legislature desired to increase the prevailing two and one-half per cent tax on natural gas to ten per cent, but upon reading the statute there is presented the peculiar fact that the Act should take effect on September 1, 1939, six months after the ten per cent tax on natural gas would have expired. It is thus obvious that this Act of the 1938 special session is not clear and if taken literally could not fix a ten per cent tax on natural gas which would expire on March 1, 1939 when the Act itself does not take effect until September 1, 1939.
Mississippi Cottonseed Products Company v. Stone, et al., 184 So. 428.
An examination of the Mississippi Cottonseed Products case indicates that the Supreme Court changed the word "by" to the word "to" in order to make an obvious typographical error clear, but who can say that the provisions of the Act in question are not clear? It is merely a choice of dates. It is Hornbook law to state that the intent of the legislature is to be determined from the language of the statute, but we challenge the court, or anyone else, to tell us from the language of the statute when the ten per cent tax on natural gas should begin and when it should end. It is not the purpose of the court to legislate or to interpret doubtful statutes when it is susceptible to many and varied interpretations.
"Words must be construed in ordinary sense."
Chattanooga Sewer Pipe Works v. Demler (Miss.), 120 So. 450, 62 A.L.R. 999.
"In ascertaining legislative intent the question is, what is the meaning of the statute as worded and not what did the legislature mean to say."
Connelly v. City of Bridgeport, 132 A. 690.
"Statutes must be construed according to natural and obvious import of language used."
Commissioner of Internal Revenue v. Beebe, 67 F.2d 662, 92 A.L.R. 862.
"Intent of legislature is to be determined from language of the statute."
Federal Mining and Smelting Company v. Wittenberg, 128 A. 38.
"Where plain words of statute leave no room for construction, courts must follow it regardless of consequences."
Leaman v. Dist. of Columbia, 55 F.2d 1020.
We are frank to admit that our Mississippi courts have been very broad and liberal in adopting rules and precedents to be followed in arriving at the legislative intent in the enforcing of statutes. We are aware of the case of Gandy v. Public Service Corp. of Mississippi, 147 So. 687, 163 Miss. 187, wherein it was held that the true meaning of a statute will be enforced by the courts, even to the extent of correcting language used.
It is well known that the legislature may direct when an Act is to take effect.
At the time of the passage of the Act, there was in force in the State of Mississippi a two and one-half percent tax, which the declaration does not seek to disturb in any manner whatsoever. The obvious and clear intent and purpose of the particular Act, Chapter 104 of the Extraordinary Session of 1938 was to increase this gas tax from two and one-half per cent to ten per cent. We might further gather from the Act that a reasonable and common sense interpretation that this increase in the gas tax of seven and one-half per cent was to remain in force for only a period of six months, but who can say what six months?
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