Robertson v. Texas Oil Co.

• Decision Date: 14 December 1925
• Docket Number: 25231
• Citation: Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449 (Miss. 1925)
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, REVENUE AGENT, v. TEXAS OIL CO. [*]

106 So. 449

141 Miss. 356

ROBERTSON, REVENUE AGENT, v. TEXAS OIL CO. ^[*]

No. 25231

Supreme Court of Mississippi

December 14, 1925

Division B

Suggestion of Error Overruled January 11, 1926.

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

Action by Stokes V. Robertson, revenue agent, by Rush H. KnoxAttorney-General, against the Texas Oil Company.Judgment for defendant, and plaintiff appeals.Affirmed.

* NOTE.Brief for appellant missing from the record.

Affirmed.

Watkins, Watkins & Eager, W. O. Crain, and Robert A. Johns, for appellee.

I.Construction of the statute.A.Every doubt should be resolved in favor of the taxpayer.Ex parte Taylor,58 Miss. 478;Y. & M. V. R. R. Co. v. State,62 Miss. 105;American Net & Twine Co. v. Worthington,141 U.S. 468, 35 L.Ed. 821;Hartrauft v. Weigman,121 U.S. 609, 30 L.Ed. 1012;United States v. Isham, 84 U.S.17 L.Ed. 728;Bluff City Ry.Co. v. Clarke, Sheriff, 49 So. 177, 95 Miss. 191;State v. Grenada Cotton Compress Co.,85 So. 137; 123 Miss. 191;Sperry Hutchinson v. Harbinson, Sheriff,123 Miss. 674.

B.A construction which would lead to an absurdity should be avoided.Kennington v. Hemmingway,101 Miss. 259, 57 So. 809.

C.Thestatute should be so construed as to avoid injustice.Dunn v. Clingham,47 So. 503, 93 Miss. 310;Eskridge v. Magruder,45 Miss. 294;Bond v. Greer,56 Miss. 710;Leachman v. Musgrove,45 Miss. 511;Shelton v. Baldwin,25 Miss. 439;McLemore v. State,33 So. 225;

D.A statute should be construed in accordance with its purpose and spirit.Wray v. Kelly,98 Miss. 172;Gunter v. City of Jackson,94 So. 844, 130 Miss. 637;Bonds v. Greer,56 Miss. 710;Adams, State Revenue Agent, v. Y. & M. V. R. R.Co., 75 Miss. 275;State Board of Education v. Mobile & Ohio R. R.Co., 72 Miss. 236;Clay v. City,134 Miss. 658;Austin v. Austin,136 Miss. 61;Ladnier v. Ingram-Day Lbr. Co.,135 Miss. 632;Roseberry v. Norsworthy, Sheriff,135 Miss. 845;Hamner v. Yazoo-Delta Lbr. Co.,56 So. 466, 100 Miss. 349.

E.The act has been the subject of judicial construction.State v. Pons,107 Miss. 612.

F. Re-enactment of the statute after the decision in the Pons case.Shotwell v. Covington,69 Miss. 735, 12 So. 260;Wetherbee v. Roots,72 Miss. 355, 16 So. 902;Davis v. Holberg,59 Miss. 362;White v. I. C. R. R. Co.,99 Miss. 651, 55 So. 593;Hamner v. Yazoo-Dalta Lbr. Co.,100 Miss. 349, 56 So. 466;Henry v. Henderson,103 Miss. 48, 60 So. 33;Womack v. Central Lbr. Co.,94 So. 2, 131 Miss. 201.

G.Departmental construction.

II.The statute under review, if subject to the construction sought to be placed thereon by appellant, violates section 112 Mississippi Constitution;Sec. 14 of the Bill of Rights of Mississippi, as well as the Fourteenth Amendment to the United States Constitution, by reason of the fact that the classification as tank or building has no reference to the capacity of the tank, the size of the municipality, the amount invested in the business or volume thereof, and is, therefore, an unreasonable classification, and void.Daily v. Swope,47 Miss. 367;Insurance Agency v. Cole,87 Miss. 646;Wirt Adams, Revenue Agent, v. Standard Oil Co.,53 So. 692, 97 Miss. 879;Chicago, St. Louis & N. O. R. R. Co. v. Moss,60 Miss. 641;Gulf & Ship Island R. Co. v. Adams,90 Miss. 559;City of Vicksburg v. Mullens,106 Miss. 217;Sorenson v. Webb,71 So. 273, 111 Miss. 87;Wirt Adams, Revenue Agent, v. Mississippi Lbr. Co.,84 Miss. 23;Wirt Adams v. Kuykendall,83 Miss. 571;Hyland, Sheriff, v. Sharp,41 So. 264, 88 Miss. 567;Airway Electric Appliance Corp. v. Day,69 L.Ed. 10;Royster Guano Co. v. Virginia,253 U.S. 412, 64 L.Ed. 989;Gulf, Colorado & Santa Fe R. R. Co. v. W. H. Ellis,165 U.S. 150, 41 L.Ed. 666;Yick Wo v. Hopkins,118 U.S. 356, 30 L.Ed. 220;Charles U.Cotting v. Goddard, Attorney-General, 183 U.S. 79, 46 L.Ed. 92;Osborne v. State of Florida,164 U.S. 650, 41 Ed. 586;Swain v. Brister,87 Miss. 516;State v. L. & N. R. R. Co.,53 So. 454;Lewis v. City of Savannah,107 S.E. 588;State v. Railroad Co.,57 So. 918.

III.A privilege tax imposed on appellee's warehouses would be a tax on interstate commerce, and void.Welton v. Missouri,91 U.S. 275, 23 L.Ed. 347;Pittsburg & Southern Coal Co. v. Bates,156 U.S. 577, 39 L.Ed. 538;American Steel & Wire Co. v. Speed,192 U.S. 500, 48 L.Ed. 538;General Oil Co. v. Crain,209 U.S. 211, 52 L.Ed. 754;Standard Oil Co. v. Graves,249 U.S. 389, 63 L.Ed. 662;Harry S.Bowman v. Continental Oil Co., 256 U.S. 642, 65 L.Ed. 1139;Sonneborn v. Keeling,262 U.S. 506, 67 L.Ed. 1095.

IV.The legislature has dealt with gasoline and oil as being separate and distinct things.Henry, Insurance Commissioner, v. State,95 So. 67.

Implied Repeal.Plummer v. Plummer,37 Miss. 185;Swann v. Buck,40 Miss. 268;Ex Parte McDaniel,8 So. 645;Gibbons v. Britton,56 Miss. 232.

V.When the appellee came into the state, according to the executive construction, it was required to pay a tax of fifty dollars on each unit of depot as a plant.To change the construction to a disadvantage, and impose liability not only for the tax but for the penalties would violate the Fourteenth Amendment to the United States Constitution.Southwestern Tel. & Tel. Co. v. Danaher,238 U.S. 282, 59 L.Ed. 1419;R. R. Co. v. Nye,260 U.S. 35; 67 L.Ed. 115.

Rush Knox, Attorney-General, in reply, for the state.

Construction of the statute.We have no quarrel with the authorities cited by counsel for appellees, in which it is held that "laws imposing privilege taxes are to be liberally construed in favor of citizens, and courts will not extend the statute imposing such taxes beyond the clear meaning of the language employed."

The state in this case is not asking this court to extend the statute beyond the clear meaning of the language employed by the legislature and code commissioners in presenting to the legislature for its adoption the Code of 1906, but simply to enforce the law as it is written.Nor do we quarrel with the authorities, so copiously cited by appellees in their briefs, but we contend that these authorities have no application in this case and shed no light whatever on the question herein involved, where, as we contend, the language of the statute is so clear and unmistakable that it leaves no room for argument as to its meaning.

Nor do we quarrel with the authorities cited by appellees, which hold that in construing an ambiguous statute of doubtful meaning, the courts may, although they are not bound so to do, resort to departmental or contemporaneous construction.But this rule, like all other canons of construction, must fall in the face of the plain meaning of the statute as expressed by the language itself.

At the time the Code of 1906 was presented to the legislature by the Commissioners, Judge A. H. Whitfield, Judge William H. Hardy, and Gen. T. C. Catchings, the question as to whether or not one of these large separate tanks was or was not an oil depot had already been determined by the supreme court of Kentucky in Standard Oil Co. v. Commonwealth, supra, cited by appellee.And if we lay the statute under consideration alongside the opinion of the supreme court of Kentucky in that case, and compare the two, we are constrained to believe from its provisions that these code commissioners had the case before them in framing this amendment to the Act of 1904, and that these commissioners and the legislature never intended to explain that an oil tank or warehouse sitting off by itself was to be considered an oil depot.Had the code commissioners and the legislature wanted simply to hold that a tank or building in which oil is stored for delivery, sitting off by itself, would constitute an oil depot and that was their sole purpose for amending the statute, they would have used words that were absolutely appropriate to so designate them.But these code commissioners and the legislature did not intend and could not have intended the language which it used in amending the Act of 1904 to mean what appellees contend that it does mean, but under the language it is expressed plainly and unequivocally that it was not the station upon which the tax was being placed, but that the tax was being placed upon each building or tank in which oil was stored for delivery.

Argued orally by Elmer C. Sharp and T. H. Johnson, for appellant, and Chas. S. Middleton, G. G. Lyell and Wm. H. Watkins, for appellees.

OPINION

HOLDEN, P. J.

The suit is by the state revenue agent for the recovery of privilege taxes and damages thereon, alleged to be due by appellee, Texas Oil Company, to the state of Mississippi, and the various municipalities therein, for the operation of oil depots for several years; the privilege tax being demanded under and by virtue of section 3843, Code of 1906(section 6555, Hemingway's Code).

The circuit judge to whom the case was submitted decided that no recovery could be had against the oil company for a separate tax upon each building or tank, but that the tax imposed was only upon a depot, regardless of the number of buildings or tanks situated thereat.From this judgment the revenue agent, through the attorney-general, prosecutes this appeal.

It is the contention of the revenue agent, through the attorney-general, that it was the evident purpose and intent of the legislature to impose a privilege tax of fifty dollars on each building or tank in which oil is stored for delivery, that this purpose is plainly expressed by the language of the statute, and that each tank or building was intended to be taxed as a separate depot, even though the distributing station or depot contain several tanks or buildings.

The appellee oil company maintains that the legislature intended to...