Opinion
No. 30790.
November 13, 1933. Suggestion of Error Overruled December 11, 1933.
1. STATUTES.
Statutes dealing with same subject-matter must be construed together and, if possible, read into each other, so as to make consistent whole.
2. TAXATION.
Statutes imposing state taxes on building and loan associations held to exclude all other taxes, except real estate taxes and levee district privilege taxes (Constitution 1890, section 237; Laws 1902, chapter 80, section 1; Laws 1930, chapter 88, sections 135, 246; Laws 1932, chapter 89, sections 1, 39, 258).
APPEAL from Circuit Court of Coahoma County.
E.W. Smith, of Clarksdale, and Pat D. Holcomb, of Greenwood, for appellant.
Building Loan Associations in Mississippi are among the few corporations favored by the Constitution of our state and to which special privileges are accorded.
Section 181 of article 7 of the Constitution of 1890.
It is apparent that the Constitutional framers, in order encourage the establishment of corporations in Mississippi for home building, expressly granted the authority to the Legislature to favor such Associations even to the extent of excluding Building Loan Association corporations from the quality clause appearing in the first part of section 181.
The right and power of the levee district to levy a privilege tax on trades, callings and occupations within said district is embraced in chapter 80 of the Laws of 1902. This law was passed by the Legislature pursuant to the authority granted it in section 237 of the Constitution.
Section 246 of said Act restricts boards of supervisors of any county from levying any of the privileges taxed by the chapter and limits a tax fifty per cent of the amount levied in the chapter to be taxed by municipalities. The same provisions appear in chapter 89 of the Laws of 1932.
It appears that the Legislature in behalf of the sovereign levied a state wide tax upon Building Loan Associations in lieu of all taxes, except taxes on real estate, thereby under section 1, on the payment of the state-wide license tax authorizing Building Loan Associations "to engage in the business . . . for the period of time under the conditions specified therein throughout the entire state" and the license thus paid is "usable, good and valid in each and every county of the state." The tax thus levied is three hundred dollars per annum on the class of Building Loan Associations of appellant.
Magnolia Building Loan Ass'n v. W.J. Miller, State Tax Collector, 128 So. 85; Gulfport Building Loan Ass'n v. City of Gulfport, 155 Miss. 498; Wilby v. State, 93 Miss. 767.
The privilege tax laws are construed strictly in favor of the citizen and against the state or other taxing power.
State, ex rel. Attorney-General, v. Mississippi Power Light Co., 138 So. 567, 161 Miss. 839; Board of Levee Commissioners v. Howze, 149 Miss. 843; American Petroleum Corp. v. Miller, 154 Miss. 565; Union Tank Co. v. State, 151 Miss. 797; Cumberland Telephone Telegraph Co. v. State, 99 Miss. 1.
In construing ambiguous statutes, it is competent not only to look at the statute being construed, but also at the law, which was in existence prior to the enactment of the statute in question.
State v. Taylor, 100 Miss. 544; Ascher Baxter v. Edward Moyse Co. (Miss.), 57 So. 299.
There are many instances where the Legislature has imposed state taxes on specific callings, professions or corporations and specifically withheld this right from any of the political subdivisions of the state.
Royal Insurance Co. v. Board of Levee Commissioners, 95 Miss. 168; Riley v. Ammon, 143 Miss. 861.
Full effect must be given to the intention of the Legislature in passing the Acts of 1930 and 1932.
Planters Bank v. State, 6 S. M. 628; Grand Gulf Bank v. Archer, 8 S. M. 151; Green v. Weller, 32 Miss. 650; N.O., etc. R.R. Co. v. Hemphill, 35 Miss. 17; Learned v. Corley, 43 Miss. 687; Eskridge v. Magruder, 45 Miss. 294; Barnes v. Greer, 56 Miss. 710; Adams v. Y. M.V.R.R. Co., 75 Miss. 275; Gunter v. City of Jackson, 94 So. 844. J.A. Tyson, of Greenwood, for appellee.
Section 1 of chapter 80 of the Acts of 1902, reposed the power in appellee, Levee Board, "to levy a tax upon all privileges exercised or which may hereafter be exercised within the limits of the said levee district and to amend, repeal or change the levy made by them, but the said privilege taxes shall in no case exceed the taxes levied by the state on the same privileges." This statute authorized, in express terms, the appellee, Levee Board to levy the same privilege taxes both in amount and upon the same business as would the state at any time; just as other general statutes of the state permitted a city or municipality to levy privilege taxes on the same business as does the state, but with a restriction always on the municipality in the amount of the tax levied to the extent of fifty per cent of what the state would levy. This general statute reposing the power in the Levee Board to levy privilege taxes has remained in full force and effect since its passage and, under the authority conferred, and Levee Board has by its own ordinances levied the same privilege taxes as has the state, and did so in the case at bar.
The very language of sections 246, Laws of 1930, and 258, Laws of 1932, to the effect that the power and authority of the Board of Levee Commissioners was not to be limited or restricted is too clear to need further discussion.
In accordance with the principle that the last expression of the legislative will is the law in case of conflicting provisions in the same statute or in different statutes the last in point of time or order of arrangement prevails provided that the conflicting provisions cannot be so reconciled as to show the legislative intent.
59 C.J. 999 (596); Gibbons v. Brittenum, 56 Miss. 232; Coker v. Wilkerson, 106 So. 886.
The provisions of said sections 246 and 258 first appeared in chapter 238 of the Laws of 1928, which is a later law than that considered in either the city of Gulfport case, supra, or in the Riley v. Ammons case, that considered in the Gulfport case being chapter 118 of the Laws of 1926, and that considered in the Riley v. Ammons case being chapter 155 of the Laws of 1918.
It is submitted that the omission of the word, "other," from the 1930 and 1932 privilege laws in limiting the imposition of taxes on Building Loan Associations does not change the effect of the holding in the city of Gulfport case, which was to the effect that privilege tax licenses could be imposed by a municipality; and, necessarily, also by the Levee Board.
It is not necessary to go far afield in court decisions seeking a solution of the question in this case, as regards the first contention of appellant, of whether or not the Levee Board is a municipal corporation within the meaning of the privilege tax laws of 1930 and 1932, which are under discussion. The solution of this question is found in the specific provisions of these particular privilege tax laws which show clearly that the Levee Board was not considered as or intended thereby, to be embraced in the category of "municipal" corporations, so far as the levying of privilege taxes under these particular laws is concerned.
Section 246 of Chapter 88 of the Laws of 1930; Section 258 of chapter 89 of the Laws of 1932.
The appellee, board, denies the soundness of the second contention of appellant, that the payment to the state of this state wide tax for a "state wide license" absolved the appellant, Building Loan Association, from the obligation of paying a tax to the Levee Board for the exercise of the same privilege; the Levee Board, by proper ordinance, if not invalid as contended by appellant, having fixed this tax and collected same. It could, with equal reason, be maintained that the "state license" which, under its definition in said section 1 of chapter 88, gives the right to the holder to do business only in the county in which it was issued, when issued by the state, would preclude the Levee Board from levying and collecting for similar licenses. If such contention be correct, and it would seem to be as correct as the contention made here, the power and authority so long exercised by the Levee Board in levying and collecting privilege taxes would be utterly destroyed, not by direction but by indirection.
Appellant brought this action against appellee in the county court of Coahoma county to recover the sum of seven hundred sixty-five dollars and ninety-three cents, representing the privilege taxes levied against and collected from appellant by appellee for the three-year period from July 1, 1930, to July 1, 1933, and the statutory damages thereon, which appellant alleged had been levied and collected without authority of law. Appellee demurred to the declaration, which demurrer was sustained, and, appellant declining to plead further, final judgment was entered dismissing the suit. From that judgment appellant appealed to the circuit court of the county, where the judgment of the county court was affirmed; from that judgment of the circuit court this appeal was prosecuted.
The privilege taxes involved were levied and collected by appellee under the authority of section 237 of the Constitution and section 1 of chapter 80 of the Laws of 1902. For the years involved appellee duplicated the state levy as provided in chapter 88, Laws of 1930, and chapter 89, Laws of 1932. Section 237 of the Constitution is in this language: "The legislature shall have full power to provide such system of taxation for said levee districts as it shall, from time to time, deem wise and proper."
Section 1 of chapter 80 of the Laws of 1902 conferred the power on the levee board to levy and collect a tax on all privileges exercised, or which might thereafter be exercised, within the limits of the levee district, and to amend, repeal, or change the tax, but provided that in no case should the tax exceed that levied by the state on the same privilege. Section 35 of chapter 88, Laws of 1930, and section 39 of chapter 89, Laws of 1932, levying the state tax on building and loan associations, provide that there shall be an "annual state-wide tax," and that the tax "shall be in lieu of all taxes, whether state, county, or municipal (except taxes on real estate)." In section 1 of both chapter 88, Laws of 1930, and chapter 89, Laws of 1932, it is provided that the state-wide tax is imposed "for a state-wide license." Section 246 of chapter 88, Laws of 1930, and section 258 of chapter 89, Laws of 1932, provide, among other things, in substantially the same language, as follows:
"Nor shall the provisions of this Act be construed to limit or restrict the power or authority of the Board of Levee Commissioners of the Yazoo-Mississippi Delta Levee District to levy and collect privilege taxes for the benefit of the said district, as heretofore or hereafter provided by said board, under the provisions of that certain Act of the Legislature of the State of Mississippi entitled, `An act to authorize and empower the Board of Levee Commissioners for the Yazoo-Mississippi Delta, to levy a tax upon all privileges exercise within the said levee district,' approved February 26th, 1902, and being Chapter 80, page 132, of the Laws of 1902."
In Gulfport Building Loan Association v. City of Gulfport, 155 Miss. 498, 124 So. 658, the court had under consideration section 53 of the privilege tax statute — chapter 118, Laws of 1926 — which provided that the privilege tax therein imposed on building and loan associations should be "in lieu of all other taxes, whether state, county, or municipal (except tax on real estate)." The court held that the statute exempted building and loan associations alone from ad valorem taxes except on their real estate, and not from municipal privilege taxes; and that the language "in lieu of all other taxes" meant all other taxes than privilege taxes.
Appellant contends that the word "other" was left out of section 35 of chapter 88, Laws of 1930, and section 39 of chapter 89, Laws of 1932, in view of the decision of the court in the Gulfport case, and that the purpose of the Legislature was to impose a state-wide privilege tax in lieu of all other taxes of whatsoever kind, except ad valorem taxes on their real estate. There would be a good deal of force in that position except for the provision in section 246 of chapter 88, Laws of 1930, and section 258 of chapter 89, Laws of 1932, above set out. It will be observed that it is therein expressly provided, in substance, that nothing in those acts shall be construed to limit or restrict the power or authority of appellee to levy and collect privilege taxes for the benefit of the district under the provisions of chapter 80 of the Laws of 1902. This provision must be construed along with section 35 of chapter 88, Laws of 1930, and section 39 of chapter 89, Laws of 1932. They deal in part with the same subject-matter. It is a canon of statutory construction that, when that is true, the different statutes or parts of statutes must be construed together. If it can be done, they must be read into each other so as to make a consistent whole. That can be done here. These statutes mean, and to so hold is not a strained construction, that the taxes therein imposed on building and loan associations shall exclude all other taxes except taxes on real estate and the right of this appellee to tax the privileges exercised within the levee district under chapter 80 of the Laws of 1902.
Riley v. Ammon, 143 Miss. 861, 108 So. 296, is not in point. The statute (Laws 1918, chapter 155) under consideration there provided that the privilege tax therein levied should be "in lieu of any and all other privilege tax save and except a municipal tax of not exceeding fifty per cent." There is no such provision in the statutes in question in this case.
Affirmed.