State ex rel. Rice v. City Bus Co., Inc

• Decision Date: 28 September 1936
• Docket Number: 32190
• Citation: 176 Miss. 597,169 So. 774
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. RICE., ATTY. GEN., et al. v. CITY Bus Co., INC

169 So. 774

176 Miss. 597

STATE ex rel. RICE., ATTY. GEN., et al. v. CITY Bus Co., INC

No. 32190

Supreme Court of Mississippi

September 28, 1936

Suggestion Of Error Overruled November 9, 1936.

(In Banc. Suggestion of Error Overruled Nov. 9, 1936.)

1 AUTOMOBILES.

Under act placing mileage tax on each bus operating as "permit carrier by motor vehicle" or as "common carrier by motor vehicle," by terms of which "permit carriers by motor vehicle" expressly did not include busses operating in lieu of street cars, busses used in lieu of street cars but operated as common carriers and not as permit carriers held not exempt from tax (Laws 1934, chap. 126, sec 1, subsecs. 3, 5, 11, 12; sec. 3; sec. 4, subsec. 3; sec. 5 subsec. 3; secs. 15, 16).

2 STATUTES.

Re-enactment of statute imposing mileage tax for operation of busses for transportation of passengers for hire on state highways after it was construed by state's tax collecting department did not constitute adoption of such construction where construction was plainly erroneous (Laws 1932, chap. 135; Laws 1934, chap. 126, sec. 1, subsecs. 3, 5, 11, 12; sec. 3; sec. 4, subsec. 3; sec. 5, subsec. 3; secs. 15, 16).

3. AUTOMOBILES.

That bus company operating busses in lieu of street cars was taxed by municipalities for support and maintenance of streets did not preclude application as to it of statute imposing privilege tax based upon mileage, as against contention such tax would subject company to double taxation not intended by Legislature (Laws 1934, chap. 126, sec. 1, subsecs. 3, 5, 11, 12; sec. 3; sec. 4, subsec. 3; sec. 5, subsec. 3; secs. 15, 16).

4. AUTOMOBILES.

Under statute imposing mileage tax on each bus engaged in business of transporting passengers for hire over public highways of state, company operating busses in lieu of street cars held taxable for mileage of its busses within as well as without the limits of municipalities (Laws 1934, chap. 126, sec. 1, subsec. 9; secs. 4, 5).

5. COMMERCE.

Statute imposing mileage tax on each bus engaged in business of transporting passengers for hire on public highways held not to place unlawful burden on interstate commerce (Laws 1934, chap. 126, sec. 1, subsecs. 3, 5, 11, 12; sec. 3; sec. 4, subsec. 3; sec. 5, subsec. 3; secs. 15, 16).

6. AUTOMOBILES. Constitutional law.

Statute imposing mileage tax on each bus engaged in transporting passengers for hire upon public highways which was applicable to bus company operating busses in lieu of street cars held not to violate obligation of contract arising from grant by municipalities to bus company of right to operate its busses over their streets (Laws 1934, chap. 126, sec. 5, subsec. 3).

7. AUTOMOBILES.

Statute imposing mileage tax on each bus engaged in transporting passengers for hire upon public highways held not violative of Federal Highway Act providing that all highways constructed or reconstructed under provisions of such act should be free from tolls of all kinds (Laws 1934, chap. 126, sec. 1, subsecs. 3, 5, 11, 12; sec. 3; sec. 4, subsec. 3; sec. 5, subsec. 3; secs. 15, 16; Federal Highway Act, sec. 9, 23 U.S.C. A., sec. 9).

GRIFFITH, J., dissenting.

HON. W. A. WHITE, Judge.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by the State of Mississippi, on the relation of Greek L. Rice, Attorney General and another against the City Bus Company. From an adverse judgment, the plaintiffs appeal. Reversed and rendered.

Judgment reversed.

W. W. Pierce, Assistant Attorney General, for appellants.

It is contended and will be contended in this court that the appellee is not liable for the mileage taxes levied and imposed by subsection 3, of section 5, of chapter 126, of the General Laws of Mississippi 1934, for the reason that motor vehicles in lieu of street cars in and between municipalities are exempt from the payment of the tax by the provisions of subsection (c) of subsection 12 of section 1, of the act. We respectfully submit that the position of the appellee is untenable because, when the whole statute is fully analyzed, it is clear that subsection (c), of subsection 12 of section 1, of chapter 126 of the General Laws of Mississippi 1934, does not in any way provide for the exemption from taxes imposed by the statute, but merely provides that since the appellee is engaged in carrying persons for hire by means of motor vehicles used in lieu of street cars in and between muncipalities, the same is not classed in the statute as a "permit carrier by motor vehicle," so that the operator would be required to provide each of its busses with a speedometer to register the number of miles traversed by such vehicle as required by section 15, of the act; neither would the operator of such a vehicle be required to keep a daily record of the actual number of miles of public highway traversed by each motor vehicle on each day, including the miles traversed each day, and the speedometer reading at the end of the month, etc., as required by section 16, of the act. To state the proposition differently, the operator of a motor vehicle used in lieu of street cars in and between municipalities, although operated for hire, is not a "permit carrier by motor vehicle" and does not have to comply with the provisions of sections 15 and 16 of chapter 126 of the General Laws of Mississippi 1934.

We frankly concede that the appellee is not, and was not, during the year 1934 a "permit carrier by motor vehicle." Our contention, we submit, is that the appellee was an operator under the provisions of chapter 126 of the General Laws of Mississippi 1934, and liable for the mileage tax.

We direct the court's attention to the definition of the word "operator" appearing in subsection 5, of section 1 of the act. From this definition we interpret the word "operator," wherever used in the statute, to mean, among other things, "a corporation operating on the public highways of the state one or more busses as the beneficial owner."

The term "public highway" when used in the act, includes the streets of municipalities.

State ex tel. Rice v. Evans-Terry Co., 159 So. 658, 80 L.Ed. 94.

The facts are undisputed that the appellee owned and operated the motor vehicles during the time the taxes accrued for which this action was brought. Therefore, it necessarily follows that, since the appellee was the operator as beneficial owner of the vehicles and as such operated the vehicles upon the public streets of the municipal corporations of Biloxi, Gulfport, Long Beach and Pass Christian, the same, being public highways within the meaning of the statute, and also upon the public highway of the state outside and between the incorporated municipalities, it is an operator within the meaning of chapter 126, Laws of 1934, and therefore liable for the tax sued for in this cause.

Section 18 of chapter 126, Laws of 1934, requires that with the report provided for in section 17 there shall be paid to the auditor of public accounts the full amount due under the provisions of the act as shown by said report.

We respectfully submit to the court the following conclusion: (1) That subsection 12 of section 1 of chapter 126, Laws of 1934, does not provide for an exemption from taxes but merely relieves the appellee in this case from providing its motor vehicles with speedometers and the keeping of daily records because, (a) the appellee operates under a certificate of necessity and convenience from the railroad commission; and (b) the appellee was operating its motor vehicles in lieu of street cars in and between municipalities. (2) That the appellee is engaged in the business of transporting passengers for hire by means of motor busses; (Agreed Statement of Facts); and (3) That a mileage tax is imposed on busses engaged in the business of transporting passengers for hire even though operated in lieu of street cars in and between municipalities. (Sub-section 3, of section 5, Laws of 1934).

There is nothing in chapter 126 of the General Laws of Mississippi 1934 that would intimate or indicate that it was the intention of the Legislature to exempt any motor vehicle from the payment of the privilege taxes imposed thereby.

The statute specifically naming those entitled to an exemption from the payment of motor vehicle privilege taxes necessarily excludes therefrom the right to an exemption of all others not mentioned, since the presumption is that the state has granted all it intended to grant.

Y. & M. V. R. R. Co. v. Adams, 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 385.

The appellee is not a county, road, school, levee district or a municipality and not being either it is not entitled to any exemption from the tax imposed.

There is no principle of law better settled by this court than that a statute under which an exemption is claimed to exist, the right to the exemption must be clearly expressed in the statute, and the claimant must come clearly within the terms of the statute.

Morris Ice Co. v. Adams, 75 Miss. 410; Barnes v. Jones, 139 Miss. 675; New Standard Club v. McGowan, 111 Miss. 92; Board of Supervisors v. Merck & Alston, 153 Miss. 346; Adams v. R. R. Co., 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 395.

Exemption from taxation will never be presumed. Morris Ice Co. v. Adams, 75 Miss. 410; Barnes v. Jones, 139 Miss. 675; Board of Supervisors v. Merck & Alston, 153 Miss. 346; Gulfport Building & Loan Assn. v. City of Gulfport, 155 Miss. 498; R. R. Co. v. Adams, 77 Miss. 194, 180 U.S. 1, 45 L.Ed. 395; Magnolia Building & Loan Assn. v. Miller, 128 So. 585, 282 U.S. 803, 75 L.Ed. 722.

The claim of an exemption from taxation should never be enlarged by construction.

Barnes v. Jones, 139 Miss. 675; Board of Supervisors v Merck & Alston, 153 Miss. 346; ...