Warren County v. Mississippi River Ferry Co, 31186
| Decision Date | 11 June 1934 |
| Docket Number | 31186 |
| Citation | 154 So. 349,170 Miss. 183 |
| Parties | WARREN COUNTY v. MISSISSIPPI RIVER FERRY CO |
| Court | Mississippi Supreme Court |
April 30, 1934
APPEAL from the circuit court of Warren county HON. E. L. BRIEN Judge.
Suit by the Mississippi River Ferry Company against Warren County. Judgment for plaintiff, and defendant appeals. Reversed, and suit dismissed.
Suggestion of error overruled.
Reversed and dismissed.
Wm. I McKay and Leonard E. Nelson, both of Vicksburg, for appellant.
The record conclusively shows that appellee's attempted appeal from the assessment for the year 1928 was premature, taken September 5, 1928, from a merely interlocutory order, long before the final approval of the roll and assessment by the state tax commission and board of supervisors of appellant in November, 1928. Under the decisions of this court, the attempted appeal was void, and the judgment rendered thereon void also.
Moller-Vandenboom v. Board of Sup'rs., 135 Miss. 249, 99 So. 823; Wilkinson County v. Foster Lbr. Co., 135 Miss. 616, 100 So. 2; State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Marathon Lbr. Co. v. State, 139 Miss. 125; Edward Hines Yellow Pine Trustees v. State, 146 Miss. 101, 112 So. 12.
Appellee pleads the conclusion of law that the appellant waived the want of jurisdiction of the attempted appeal in the circuit court. No proof whatever of any vain attempt at such a waiver was offered by the appellee, or otherwise appears of record. All the law is the other way.
3 C. J. 369-370; Switzer v. Benny, 94 Miss. 209; Kelley v. Ladies Aid Society, 140 Miss. 580, 106 So. 627; James v. Williams Furniture Co., 161 Miss. 358; Moller-Vandenboom v. Attala County, 135 Miss. 249, 99 So. 823.
In such a proceeding, it is necessary to its maintenance to show that the taxes sought to be refunded were paid under protest and involuntarily.
Schmitter v. Sunflower County, 156 Miss. 227, 126 So. 39.
The only protest attempted in the case at bar consisted only of writing on the checks given in payment of the taxes the words, "Paid under Protest." No ground or reason was hinted at as the basis of the protest; and no defect in the assessment was even suggested. Such a general protest was legally insufficient, in legal effect, no protest at all.
Pearl River County v. Lacy Lbr. Co., 124 Miss. 85; Union Land & Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 279; Schmitter v. Sunflower County, 156 Miss. 227, 125 So. 534; Ann. Cas. 1913D 568.
Appellee was doing business in this state.
14a C. J. 1273; Peterman Const. Co. v. Blumenfeld, 125 So. 548; Sprout v. South Bend, 277 U.S. 163, 72 L.Ed. 833, 48 S.Ct. 502, 62 A. L. R. 45; 12a C. J. 1284; City of Vicksburg v. Streckfus Steamers, 150 So. 215.
Taxpayers failing to appeal from an order of the board of supervisors approving an assessment are concluded thereby.
Investment Co. v. Suddoth, 70 Miss. 416; Rev. Agt. v. Clarke, 80 Miss. 134; Rev. Agt. v. Bank, 108 Miss. 346; Adams v. City of Clarksdale, 95 Miss. 88; North v. Culpepper, 97 Miss. 730; Reed v. Lbr. Co., 149 Miss. 395; Pearl River County v. Lacy Lbr. Co., 124 Miss. 104.
Kennedy & Geisenberger, of Natchez, for appellee.
Appellee has confused the rule of law applying to premature appeals from interlocutory orders with the rule applying to appeals that are absolutely void because of inherent lack of jurisdiction of either the inferior or appellate court. Under the latter there is no life whatsoever in the appeal, but in the former the appeal, though erroneous, is not a nullity and is not subject to collateral attack.
Sherman v. Sherman, 139 Mich. 180, 102 N.W. 630; 3 C. J., Appeal and Error, sec. 1363.
When payment of the taxes was made, the rights and privileges of the taxpayer granted him under section 8270, Hemingway's Code of 1927, section 3276, Code of 1930, were ingrafted thereon. And neither of said sections require payment to be made under protest, but specifically provide that protest shall not be necessary.
The language of the statute is as positive and comprehensive as any that could be employed to manifest the intention of the Legislature to make it mandatory upon the county board of supervisors to issue a proper warrant covering refund to the taxpayer.
Sufficient protest was made by appellee in the payment of its taxes, when it noted upon its check that it was tendered under protest.
Ayer & Lord Tie Co. v. Commonwealth of Kentucky, 202 U.S. 409, 26 S.Ct. 679.
The assessment was void for the further reason that the tax assessor of Warren county was without jurisdiction or authority to make the assessment.
Powder River Cattle Co. v. Board of Commissioners of Custer County, 45 F. 323.
Admitting solely for the purpose of argument that appellee's ferry boat was subject to assessment for taxation in the state of Mississippi, we contend that the state tax commission and not the tax assessor of Warren county had power to make the assessment.
Chapter 138, Laws of 1918; Section 9368, Hemingway's Code of 1927; Section 3200, Code of 1930.
The proof in the court below showed without conflict that the Mississippi River Ferry Company is and was a service corporation, operating (its ferry boats) as public utilities.
Mayor and Board of Aldermen of Vidalia v. McNeely, McNeely v. Mayor and Board of Aldermen of Vidalia, 47 S.Ct. 758, 71 L.Ed. 1292.
The case of Helena-Glendale Ferry Co. v. State, 101 Miss. 65, 57 So. 362, Ann. Cas. 1914D 682, denies the right of the state of Mississippi to levy a privilege tax on the operation of a ferry where the company owning it is exclusively engaged in ferrying passengers across the Mississippi River between Helena, Arkansas, and Glendale, Mississippi, and is practically on all-fours with the case at bar.
The action brought by appellee for the recovery of taxes is not one growing out of any contract made in pursuit of "business done in Mississippi," and therefore falls beyond the prohibition of the statute.
Quartette Music Co. v. Heygood, 108 Miss. 75, 67 So. 211; Item v. Ship, 106 So. 437.
The tax commission had the sole and exclusive authority, if any existed, to make the assessment here complained of.
Section 3200, Code of 1930; Section 9368, Hemingway's Code of 1927; Teche Lines v. Board of Supervisors of Forest County, 143 So. 486; City of Hattiesburg v. New Orleans, 106 So. 749; Laws of 1932, chapter 291; Section 3204, Code of 1930; Section 9371, Hemingway's Code of 1927; Section 3208, Code of 1930; Section 9376, Hemingway's Code of 1927; Section 3209, Code of 1930; Section 9370, Hemingway's Code of 1927; Gully, State Tax Collector, v. Eastman-Gardiner Lbr. Co., 151 So. 170.
The inescapable conclusion of section 3200 et seq., of the Code of 1930, and the constructions placed thereon by this court is, that all public utilities are assessable by the state tax commission with the limitation, however, that electric light and power companies situated wholly in one county are assessed by the county authorities. This limitation applies only to electric power and light companies.
Gully v. Eastman-Gardiner Lbr. Co., 151 So. 170.
The Mississippi River Ferry Company, at the time of the assessment, was a public utility.
Teche Lines v. Board of Supervisors, 143 So. 486; 51 C. J., page 4, et seq.
A ferry engaged in the transportation of freight and passengers across the Mississippi River for hire has repeatedly been held to be a public utility by the Supreme Court of the United States.
Town of Vidalia v. McNeely, 274 U.S. 676, 47 S.Ct. 758; Chapter 113, Code of 1930; 25 C. J., page 1074.
The question here is the situs of the boat, George W. Miller, for purposes of taxation. If the boat has a situs of its own in Mississippi, it is subject to taxation, regardless of the domicile of its owner or that it is engaged in interstate commerce. If the boat has no situs in Mississippi, then it is not any more subject to taxation than the property of Henry Ford, and the board of supervisors was without jurisdiction.
There is no contention that the boat is not assessable in Mississippi because of being engaged in interstate commerce, but on the contrary the contention is that it is not assessable in Mississippi because it has no situs in Mississippi or elsewhere separate from the domicile of its owner.
Ayer & Lord Tie Co. v. Kentucky, 202 U.S. 409, 26 S.Ct. 679; Hayes v. Pacific Mail Steamship Co., 15 L.Ed. 254; St. Louis v. Wiggins Ferry Co., 20 L.Ed. 192; Old Dominion Steamship Co. v. Virginia, 49 L.Ed. 1059; North American Dredge Co. v. Taylor, 29 L. R. A. (N. S.) 105.
The Mississippi River Ferry Company is incorporated under the laws of the state of Tennessee; its address being room 600, Bank of Commerce building, Memphis, Tennessee. It has offices in Vicksburg, Mississippi, however, and does its business between Vicksburg and the state of Louisiana, and also between different points wholly within this state. It had never paid any taxes either in Louisiana or Tennessee. The boat was registered for navigation purposes at Baton Rouge, Louisiana, but it had never been there, and engaged in no business at that point. The principal business of the corporation was operating a ferry between Vicksburg, Mississippi, and Delta Point, Louisiana. However, it ran some excursions up and down the river, from one point in Mississippi, returning to that point, the passengers remaining on the boat all the while. Its officers and its general business transactions were in Vicksburg, Mississippi. There was an annual stockholders' meeting in Tennessee, but no other business transactions were had in that state.
The Mississippi River Ferry Company...
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