Texas Co. v. Dyer, Motor Vehicle Com'r

• Decision Date: 26 April 1937
• Docket Number: 32720
• Citation: 179 Miss. 135,174 So. 80
• Parties: TEXAS CO. v. DYER, MOTOR VEHICLE COM'R
• Court: Mississippi Supreme Court

174 So. 80

179 Miss. 135

TEXAS CO. v. DYER, MOTOR VEHICLE COM'R

No. 32720

Supreme Court of Mississippi

April 26, 1937

Division B

1 Licenses.

Where employee of distributor of gasoline, kerosene, and other products went to post office on 15th day of May, 1936, for purpose of registering remittance covering license tax imposed on distributor, but finding registry window closed did not mail remittance until May 16, as result of which remittance did not reach Motor Vehicle Commissioner until Monday, May 18, distributor held liable for 20 per cent penalty imposed by statute for failure to pay tax on 15th (Laws 1932, chapter 93, sections 8, 10; Laws 1936, chapter 162, section 44).

2 Licenses.

Legislature has right to impose penalties on taxpayers for failure to comply with law and to fix date for final payment of license tax.

3. Licenses.

Object of imposition of penalty for failure to pay license tax on day fixed by law is not merely punishment for taxpayer, but is in furtherance of enforcement of public duty in interest of public welfare.

4. Constitutional Law. Licenses.

Statute fixing date for payment of license taxes and imposing penalty for failure to timely pay taxes does not violate due process clause or any other provision of Constitution (Laws 1932, chapter 93, sections 8, 10; Laws 1936, chapter 162, section 44; Const. U.S. Amend. 14).

5. Licenses.

Statute imposing penalty on distributor of gasoline and kerosene for failure to pay license tax on date fixed held not repealed by subsequent statute, where subsequent statute expressly retained laws for purpose of collecting penalties and re-enacted without change duties and penalties in reference to payment of taxes (Laws 1932, chapter 93, sections 8, 10; Laws 1936, chapter 162, section 44).

6. Licenses.

Alleged fact that if gasoline tax remittance had been timely mailed, week-end bank clearance delay would have prevented state from receiving money until Monday, when remittance was actually received, and that therefore state was not delayed in use of money, did not preclude imposition of penalty (Laws 1932, chapter 93, sections 8, 10; Laws 1936, chapter 162, section 44).

HON. V. J. STRICKER, Chancellor.

APPEAL from the chancery court of Hinds county HON. V. J. STRICKER, Chancellor.

Suit by the Texas Company against Howard Dyer, Motor Vehicle Commissioner. From a decree dismissing the bill, the plaintiff appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and F. T. Baldwin and W. O. Crain, both of Houston, Texas, for appellant.

Where there has been, as was had in the present instance, an honest, sincere effort to comply with the statute and the report and remittance were received by the state officers within such time and under identical circumstances as if there had been a literal compliance with the statute, under a proper construction of the statute there was no default and the appellant is not liable for penalty.

The appellant had until the last minute of May 15, 1936, to mail the remittance.

Sovereign Camp v. Rhyne, 171 Miss. 687.

The statute must be construed liberally in favor of appellant and against the State.

Pan-Am. Pet. Corp. v. Miller, 154 Miss. 565; Miller v. I. C. R. R. Co., 146 Miss. 422; Utica v. State, 166 Miss. 565; Gully v. Jackson International Co., 165 Miss. 103.

The statute is highly penal and should be strictly construed in favor of appellant.

I. C. R. Co. v. Coln, 145 Miss. 399; Bobo v. Comrs., 92 Miss. 792; Stewart v. State, 95 Miss. 627.

A statute will not be literally interpreted where such construction leads to absurdity, inequity or injustice.

Petroleum Corp. v. Miller, 154 Miss. 565; Canal Bank v. Brewer, 147 Miss. 885; Robertson v. Texas Oil Co., 141 Miss. 356; Huber v. Freret, 138 Miss. 238; Gunter v. City of Jackson, 130 Miss. 637; Kennington v. Hemingway, 101 Miss. 259; Ziegler v. Ziegler, 174 Miss. 302; Leaf Hotel Corp. v. Hattiesburg, 168 Miss. 304; Boyd v. Coleman, 146 Miss. 449.

A substantial compliance with a highly penal statute, where the substantial compliance results in no injury to the State, will not authorize the imposition of a penalty.

State Board v. R. R. Co., 72 Miss. 236; State v. Louisiana Store, 154 So. 464; People v. Omen, 124 N.E. 860; Martien v. Porter, 219 P. 817; Johnson v. Jarvis, 223 F. 756; Fitzgibbons v. Galveston Elec. Co., 136 S.W. 1186; Commonwealth v. Coal & Iron Co., 23 A. 809; Hoff v. Northwestern El. Co., 139 N.W. 153; St. Louis, etc., R. Co. v. Houck, 97 S.W. 953; Rambeck v. LaBree, 194 N.W. 743; Tonnar v. Wade, 153 Miss. 722.

The statute under review as construed and enforced in this case violates the Fourteenth Amendment to the Constitution of the United States in that the same deprives the appellant of its property without due process of law and denies to it the equal protection of the law in that there is a discrimination against appellant which does not rest on or bear any substantial relation to the object sought to be accomplished by the legislation. For the same reason said statute violates the Fourteenth Section of the Bill of Rights of the Constitution of 1890 of the State of Mississippi.

Mayflower Farms v. Eyck, 80 L.Ed. 675; Liggett Co. v. Baldridge, 73 L.Ed. 204; Louisville Gas Co. v. Coleman, 277 U.S. 32; Chalker v. Ry. Co., 249 U.S. 522; Bethlehem Motors Co. v. Flynt, 65 L.Ed. 372; Royster Guano Co. v. Virginia, 64 L.Ed. 989; Airway, etc., Corp. v. Day, 69 L.Ed. 169.

If the statute under review shall be construed so as to render the appellant liable for the penalty involved such statute violates the Fourteenth Amendment to the Constitution of the United States as well as Article 14 of the Bill of Rights of the State of Mississippi in that by reason of the excessive nature thereof such statute as enforced and construed deprives the appellant of its property without due process of law, and denies to it the equal protection of the law.

Ry. Co. v. Polt, 59 L.Ed. 554; R. R. Co. v. Tucker, 57 L.Ed. 1507; Chicago, etc., R. Co. v. Fowler, 67 L.Ed. 115; Southwestern T. & T. Co. v. Danaher, 59 L.Ed. 1419; St. Louis, etc., R. Co. v. Williams, 64 L.Ed. 139; Life Ins. Co. v. McRae, 78 L.Ed. 987; Beckler Produce Co. v. Railway Express, 246 S.W. 1; Bonnett v. Vallier, 116 N.W. 883; State v. Martin, 139 N.E. 282; Village v. Railroad Co., 196 Ill.App. 167; Producers Oil Co. v. Stephens, 99 S.W. 157; State v. Galveston R. Co., 97 S.W. 71.

Section 10, chapter 93, Mississippi Laws of 1932 repealed section 44, chapter 162, Mississippi Laws of 1936.

Sec. 44, chap. 162, Laws 1936; Bradstreet Co. v. City of Jackson, 81 Miss. 233; New York Life v. Robertson, 140 Miss. 108.

Wm. H. Maynard, Assistant Attorney-General, for appellee.

Appellant's liability for the penalty imposed is settled by the Mississippi statute.

This court is familiar with the system of gasoline and fuel oil excise taxation devised by the Mississippi Legislature as it has had occasion many times to review that system as it has developed.

Treas v. Price, 167 Miss. 121, 146 So. 630, which construed sections 4785 and 4786 of the 1930 Code of Mississippi; Town of Utica v. Rice, 166 Miss. 565, 148 So. 635, which construed various sections of chapter 93 of the 1932 Laws; Price v. Independent Oil Co., 168 Miss. 292, 150 So. 521, which construed the gasoline excise law as existed under the 1930 Code of Mississippi; Rice v. Louisiana Oil Corp., 174 Miss. 585, 165 So. 423, which construed various sections of chapter 93 of the 1932 Laws of Mississippi.

Under the system of taxation provided by chapter 93 of the 1932 Laws persons receiving gasoline or fuel oil in Mississippi for sale, distribution, etc., become distributors within the meaning of that chapter and are subject to a six cents per gallon tax on gasoline and a one cent per gallon tax on fuel oil. These distributors were required to make bond and secure permit to operate and were subjected to various regulations and governed by various restrictions. Obviously, it was necessary for provisions to be made for a time within which said tax had to be paid. As a corollary, if said provision were to be honored by being observed rather than by being breached, some penalty had to be provided for failure to pay the tax on time. Accordingly, the Legislature incorporated these two sections in chapter 93 of the 1932 Laws (sections 8 and 10). Appellant, while operating as a distributor in Mississippi, violated section 8, which provided for the date of payment, and was automatically penalized by section 10, which provided that if the tax imposed was not paid by a certain period, that a penalty of twenty-five per cent of said tax was imposed. These sections are clear, understandable and operate without favor or distinction.

Mississippi had the right to impose the penalty provided by section 10 of chapter 93 of the 1932 Laws.

The Supreme Court of the United States, as well as the Supreme Court of our State and others, has held uniformly that a state has a right to provide a time within which its taxes shall be paid with a penalty imposed for failure to pay within said time.

61 C. J., Taxation, sec. 2104; Crockett v. Salt Lake County, 72 Utah 337, 270 P. 142, 60 A. L. R. 867; First Trust & Savings Bank v. West Lake Investment Co., 141 So. 894; Sanderson v. Bateman, 253 P. 110; Tricounty District v. Vincennes Bridge Co., 170 Ark. 22, 278 S.W. 627; Bankers Trust Co. v. Blodgett, 260 U.S. 647, 67 L.Ed. 439; Reed v. State, 124 So. 497; Bennett v. Jones, 107 Miss. 880, 66 So. 277; B. & H. v. Robertson, 120 Miss. 684, 83 So. 4; G. & M. Traction Co. v. Robertson, 129 Miss. 322, 92 So. 231; Robertson v. Southeastern Express Co., 130 Miss. 305, 94 So. 210, 68 L.Ed. 836; Hamel v. Marlow, 171 Miss. 559, 157 So. 905, 96 A. L. R. 924.

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