Miller v. Yazoo & M. V. R. Co.

• Decision Date: 23 February 1931
• Docket Number: 28812
• Citation: 160 Miss. 603,132 So. 597
• Parties: MILLER, STATE TAX COLLECTOR, v. YAZOO & M. V. R. Co
• Court: Mississippi Supreme Court

132 So. 597

160 Miss. 603

MILLER, STATE TAX COLLECTOR, v. YAZOO & M. V. R. Co

No. 28812

Supreme Court of Mississippi

February 23, 1931

Division B

1 STATUTES.

Where construction of statute was doubtful, substantial re-enactment constitutes acceptance of uniform executive and administrative construction.

2. LEVEES and FLOOD CONTROL.

Levee taxes assessed on mileage basis against railroad within levee district held in lieu of all other levee taxes, including uniform ad valorem tax against property (Laws 1878, c. 117 section 5; Laws 1886, c. 7; Laws 1908, c. 125; Laws 1914, c 282).

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W. H. POTTER, Judge.

Suit by W. J. Miller, state tax collector, against the Yazoo & Mississippi Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

P. C. Canizaro, of Vicksburg, and Franklin, Easterling & Rosenthal, of Jackson, for appellant.

The act of November 27, 1865, section 4, levies and assesses "a uniform tax of ten cents per annum on each and every acre of land in said counties."

Section 3, Laws of 1872, gives the Board of Levee Commissioners power and authority to levy and assess a uniform ad valorem tax upon the value of each and every acre of land lying and being situated in said counties.

Section 5 of the Acts of 1878, which is an amendment to the Act of November, 1865, also the Act of 1877, vests in the Board of Levee Commissioners the power to levy and assess a uniform ad valorem tax of not more than five mills upon the assessed value of property, both real and personal, lying and situated in the counties of Bolivar, Washington, Issaquena and Sharkey, as the same shall appear upon the assessment rolls of said counties respectively, for the years in which such levy and assessment may be made.

On March 12, 1886, the legislature for the first time enacted a law levying a tax upon each and every mile of the main or trunk line of all broad or standard gauge railroad not including side tracks or switches in the sum of one hundred dollars per annum in the levee district.

The first amendment to the mileage tax on railroads of 1886 is by the Act of 1908, which places upon each and every mile of main or trunk lines of all broad or standard gauge railroads, not including side tracks or switches, the sum of two hundred dollars per annum.

Chapter 282 of the Law of March, 1914, is an act to amend chapter 125 of the Acts of 1908.

When the Law of 1908 repealed the mileage tax of 1886, and along with that omitted the proviso of section 2 "that the mileage tax shall be in full of all levee taxes," it thereby repealed the exemption, and automatically rendered railroad property in the levee district subject to ad valorem tax imposed by the Laws of 1878, 1892 and 1896.

State v. Order of Elks, 29 Miss. 895, 13 So. 255; Nation v. Lovejoy, 80 Miss. 401, 31 So. 811; Clay Co. v. Chickasaw County, 1 So. 752; 37 Cyc. 900; Adams v. Yazoo, etc. R. R. Co., 77 Miss. 194, 24 So. 200, 317, 28 So. 956, 60 L. R. A. 33.

The fact that no effort had been made to collect the taxes heretofore does not in any manner relieve the railroad companies from the payment of the taxes.

Wells v. Mayor and Aldermen of the City of Savannah, 45 L.Ed. 986.

Exemption from taxation is not presumed, and it is the duty of the court to resolve any doubt in favor of the taxing power.

Adams v. Y. & M. V. R. R. Co., 77 Miss. 194, 24 So. 201; Y. & M. V. R. R. Co. v. Adams, 26 So. 956; Barnes v. Jones, 103 So. 773, 139 Miss. 675; Gulfport Building & Loan Association v. City of Gulfport, 124 So. 658.

An exemption from taxation may be lost or forfeited by an express waiver or renunciation of it, by the acceptance of a subsequent legislative act imposing taxes or changing the rate or mode of taxation, by the sale or other disposition of the exempt property, by a change in the organization or business of a corporation, taking it out of the exempted class, by the act of the party in returning the property to the assessors as taxable, or by the uncomplaining payment of taxes on it for a number of years, and according to some of the authorities, by the mere neglect to assert and claim the exemption before taxing officers.

37 Cyc. 904.

After the exception was taken out of the Laws of 1892 and 1896, to-wit the words "and the taxes levied and assessed by this act shall be in full of all levee taxes," the general law imposing the ad valorem levy became general without exception. It covered the assessed value of all property, real and personal within the bounds of the levee district.

Clay County v. Chickasaw County, 1 So. 752; State v. Order of Elks, 13 So. 255; Nation v. Lovejoy, 80 Miss. 401, 31 So. 811.

A statute which is plain and unambiguous must be given full effect and the court may not add anything to it or take anything from it; nor can it determine the wisdom of the statute, but it must merely enforce it as written.

5 Miss. Digest, 718; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Abbott v. State, 106 Miss. 340, 63 So. 667; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Prather v. Googe, 108 Miss. 670, 67 So. 157.

The general rule is that when any statute is revised or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. Where a statute is evidently intended to revise the whole subject treated in a former statute therefor, it repeals such former statute, and, though there may be a plain casus omissus, the courts cannot supply it.

County of Clay v. County of Chickasaw, 1 So. 735, 64 Miss. 534; Abbott v. State, 106 Miss. 340, 63 So. 667; Ascher v. Moyse & Co., 101 Miss. 36, 57 So. 299; Swift & Co. v. Sones, 142 Miss. 660, 107 So. 881; State v. Wyoming Manf. Co., 138 Miss. 249, 103 So. 11.

The court cannot restrict or enlarge the meaning of an unambiguous statute.

City of Hazelhurst v. Mayes, 51 So. 890, 96 Miss. 656; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521.

The ultimate duty and responsibility of construction is upon the court, and departmental interpretation cannot well be resorted to where the language of the statute is plain. Before we are justified in accepting departmental construction the law under consideration must be doubtful, or uncertain.

State ex rel. Collins v. Grenada Compress Company, 85 So. 137.

R. C. Beckett, of Chicago, Ill., May, Sanders, McLaurin & Byrd, of Jackson, Chas. N. Burch and H. D. Minor, both of Memphis, Tenn., and R. V. Fletcher, of Chicago, Ill., for appellee.

In case of doubt as to the meaning of a statute it is well settled that the courts may resort to contemporaneous construction, and it has been said that the best construction of a statute is that which it has received from contemporary authority.

25 R. C. L. page 1042, section 273.

It is a well settled rule that the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed while not controlling, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous. The weight to be given to executive or departmental practice is increased when the legislature, in re-enacting the law or another law in pari materia, fails to indicate in any way its disapproval of the settled construction of the officer or department, or where an implied approval of such construction may otherwise be deduced from subsequent legislation, or failure to alter the practice of legislation.

25 R. C. L. page 1043, section 274; Robertson v. Texas Oil Co., 141 Miss. 356, 366, 106 So. 499; Lewis Sutherland on Statutory Construction, sections 447-448; U. S. v. Hermanos, 209 U.S. 337, 339; U. S. v. Falk, 204 U.S. 143, 152.

When a statute is re-enacted or the subject has come up for legislative consideration after the statute has received an administrative or judicial construction it is presumed that such construction was embraced in the law and approved by the legislature.

25 R. C. L. 1076; Davis v. Holberg, 59 Miss. 362; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Wetherbee v. Root, 72 Miss. 355, 16 So. 902.

Legislative policy clearly deducible from the consistent legislation of Congress or a state legislature is a legitimate factor in determining the meaning of subsequent acts open to construction, and such policy is not to be regarded as abandoned further than the terms and objects of the new legislation unmistakeably require.

Murdock v. Memphis, 20 Wall, 590, 22 L.Ed. 429; Venable v. Richards, 105 U.S. 638, 26 L.Ed. 1196; United States v. Healey, 160, U.S. 136, 40 L.Ed. 369; Coulter v. Robertson, 24 Miss. 278.

OPINION

Griffith, J.

The Mississippi levee district was created on November 27, 1865 at which time there was no railroad within its...