Opinion
No. 35416.
September 27, 1943.
1. APPEAL AND ERROR.
Where suit to collect privilege taxes on contract to construct an army camp was dismissed on ground State Tax Collector was without authority to maintain suit, statement in decree that defendant was liable for the tax in specified amount was merely a gratuitous expression of opinion immaterial on appeal (Laws 1940, ch. 120, secs. 57 (a, b, c), 244).
2. LICENSES.
State Tax Collector under his general statutory authority to collect taxes had authority to maintain suit to collect contractor's license fee and privilege taxes on contract to construct an army camp in the state, though statute imposing such taxes provides for application for licenses to be made to State Tax Commission and makes it the duty of commission to collect the tax (Code 1930, sec. 6986; Laws 1940, ch. 120, secs. 57 (a, b, c, f), 244).
3. TAXATION.
Any limitation on general statutory authority of State Tax Collector as respects collection of a particular tax must be expressly stated (Code 1930, sec. 6986).
APPEAL from chancery court of Forrest county, HON. LESTER A. CLARK, Chancellor.
Creekmore Creekmore and Forrest B. Jackson, all of Jackson, for appellant.
The appellee is liable for the statutory damages.
Compress of Union v. Stone, 188 Miss. 49, 193 So. 329; Cook v. Stone, 192 Miss. 219, 5 So.2d 223; Bennett v. Jones, 107 Miss. 880, 66 So. 277; Brittain Henry v. Robertson, 120 Miss. 684, 83 So. 4; Robertson v. Southeastern Express Co., 130 Miss. 305, 94 So. 210; Gulfport Mississippi Coast Traction Co. v. Robertson, 129 Miss. 322, 92 So. 231; Hamel v. Marlow, 171 Miss. 559, 157 So. 255; Texas Co. v. Dyer, 179 Miss. 135, 174 So. 80; Cf. State ex rel. Gully v. Mutual Life Ins. Co. of New York, 189 Miss. 830, 196 So. 796; Alabama v. King Boozer, 314 U.S. 1, 86 L.Ed. 1; James v. Dravo Contracting Co., 302 U.S. 134, 82 L.Ed. 155; Laws of 1940, Ch. 120, Secs. 3, 244, 258.
The State Tax Collector has the authority to sue.
Town of Purvis v. Lamar County, 161 Miss. 454, 137 So. 323; Gully v. Williams Bros., 182 Miss. 119, 180 So. 400; Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318; Dukate v. Adams, 101 Miss. 433, 58 So. 475; Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883; Gully v. Mathews, 179 Miss. 579, 176 So. 277; McClellan v. Gully, 172 Miss. 431, 160 So. 567; State ex rel. Gully v. Mutual Life Ins. Co., of New York, supra; Code of 1906, Sec. 4738; Code of 1930, Sec. 6986; Laws of 1926, Ch. 286; Laws of 1928, Ch. 223.
Distinguishing Dunn Const. Co. v. Craig, 191 Miss. 682, 2 So.2d 166, 3 So.2d 834; Enochs v. State ex rel. Roberson, 128 Miss. 361, 91 So. 20; Craig v. Columbus G.R. Co., 192 Miss. 461, 5 So.2d 681; Craig v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230; Yazoo M.V.R. Co. v. Adams, 83 Miss. 306, 36 So. 144.
The statute with which we are presently concerned is Chapter 120 of the Laws of 1940, particularly Section 57 thereof. There is nothing in Section 57 which makes this tax different in any way from other privilege taxes as set forth in other sections of the chapter. There is nothing in the section which confers upon the Tax Commissioner exclusive jurisdiction over the matter of ascertaining the amount of, or collecting, the tax, and there is no special statutory scheme provided for this purpose. There is no special administrative machinery set up whereby the taxpayer has the right to appear before the commissioner and have a hearing as to the amount of tax due; there is no right of appeal either to the Tax Commission or to the courts, and there is no provision whereby the Tax Commissioner is required to make a determination of value, to make a classification, or to make an assessment. Nowhere is it provided that any order of any kind be made or entered either by the Tax Commission or by the chairman thereof. We have here purely and simply a privilege tax upon contractors, classified according to the size of their contracts, with both tax and classification fixed by legislative action.
Craig v. Walker, 191 Miss. 424, 2 So.2d 806; Code of 1906, Sec. 3793; Laws of 1930, Ch. 88, Sec. 54; Laws of 1932, Ch. 89, Sec. 60; Laws of 1940, Ch. 120, Secs. 57 (b), (h), 238, 239, 243, 244, 255, 257, 258, 259 260.
The tax is a debt.
Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190; Nickey v. State, 167 Miss. 650, 145 So. 630; Code of 1930, Sec. 3122; Laws of 1940, Ch. 120, Secs. 258, 260.
No assessment of privilege taxes is necessary.
Yazoo M.V.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Enochs v. State ex rel. Roberson, 128 Miss. 361, 91 So. 20, 133 Miss. 107, 97 So. 534.
Toxey Hall, United States Attorney, and A.Y. Harper, Assistant United States Attorney, both of Jackson, and Samuel O. Clark, Jr., United States Assistant Attorney-General, Sewall Key and Alvin J. Rockwell, Special Assistants to the Attorney-General, all of Washington, D.C., for appellee.
This case concerns solely the state-wide contractors' licenses imposed by Section 57, Chapter 120, Laws of 1940, and the power of the State Tax Collector to sue for collection of taxes and penalties where there has been no determination of liability by the State Tax Commission and no notice or demand served upon the taxpayer.
The administration of the licenses provided by Section 57 is vested in the State Tax Commission and its chairman, the State Tax Commissioner. It is they who issue the licenses and who are vested with the statutory authority to secure the necessary information in order to determine the amount of the tax due. They are also expressly empowered to sue for collection, after written demand upon the taxpayer and his failure to pay. No similar authority is granted by the terms of Chapter 120 to any other person or agency.
Laws of 1940, Ch. 120, Secs. 1, 57, 239, 244, 258.
In the practical administration of Section 57 there are numerous questions of fact and law which constantly arise and must be dealt with on the spot by the agency authorized to issue the licenses. It is only fair and reasonable that determinations of the commission and its chairman should be relied upon by contractors and that they should not be harassed at some later date by a suit for the collection of taxes which have previously been determined not to be due, together with a burdensome penalty of 50 percent. Unless the statutes of Mississippi permit no reasonable alternative, the oppressive results which follow appellant's assertion of power to maintain such suits should not be condoned.
In the absence of a determination of liability on the part of the commission or its chairman, it cannot fairly be said that taxes are "past due and unpaid," within the meaning of Section 6986 of the Mississippi Code of 1930, relating to the powers of the State Tax Collector. Moreover, the general provisions of Section 6986 must yield to the controlling principle that a specific statute, such as Section 57 and its related provisions, supersedes a general statute, such as Section 6986, where there is conflict or apparent conflict.
Dunn Const. Co. v. Craig, 191 Miss. 682, 2 So.2d 166, 3 So.2d 834; White v. Lowry, 162 Miss. 751, 139 So. 874; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully v. Lumbermen's Mut. Cas. Co., 176 Miss. 388, 166 So. 541; Craig v. Columbus G.R. Co., 192 Miss. 461, 5 So.2d 681; Craig v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230; Craig v. Stone, 194 Miss. 767, 11 So.2d 433; Missouri v. Ross, 299 U.S. 72, 76.
The instant case presents a clear occasion for the application of this principle, as is shown by the recent decisions in which this court has considered attempts by the State Tax Collector to override the judgment of the State Tax Commission.
Craig v. Columbus G.R. Co., supra; Dunn Const. Co. v. Craig, supra; Craig v. Southern Natural Gas Co., supra; Craig v. Stone, supra.
Argued orally by Rufus Creekmore and Forrest B. Jackson, for appellant, and by Alvin J. Rockwell, for appellee.
On September 10, 1940, appellee entered into a contract with the United States to construct a complete tent camp at Camp Shelby, Mississippi. The contract price as fixed by agreements supplemental to the original contract was $13,143,132.95, and such amount was paid to appellee upon completion of the work in May 1941.
On December 7, 1940, appellant filed his bill in the form of an attachment in chancery against the appellee as a nonresident corporation seeking to reach, in garnishment form, funds in the hands of a local bank. Such suit was filed pursuant to Section 57(a) of Chapter 120, Laws of 1940, then applicable. This section is as follows:
"Upon each person who offers or bids to contract for a fixed price, commission, fee, or wage to construct, repair, or to superintend the construction or repair of any building, highway, street, sidewalk, bridge, culvert, sewer, or water system, drainage, or dredging system, electric, or steam railway, reservoir, or dam, hydraulic or power plant, electric lighting or power system, steam heating plant or system, transmission line, pipe line, tower, dock, wharf, excavation, grading, water wells, gas wells, oil wells or other improvement or structure, or any part thereof, the contract price of which exceeds the sum of three thousand dollars ($3,000.00), shall, prior to offering or submitting any bid to contract for any of the named projects, apply for, pay for, and obtain from the state tax commission a license as a contractor, in the sum of $25,00.
"Said tax shall be an annual tax, and shall be paid prior to the submission of any offer, or bid to contract for any of the projects mentioned in the foregoing paragraph, and shall entitle the holder thereof to the privilege of submitting bids at any place within this state during the full period of twelve months from the date of issuance thereof. No person shall be entitled to submit bids for any project, the contract price of which exceeds the sum of $3,000.00, until he has procured said license, and failure to procure said license as a contractor before entering into any contract in excess of $3,000.00, shall render such proposed contract void."
The amount of privilege tax was computed under paragraph (b) of said section, which is as follows: "Any person who shall enter into a contract for a fixed price, commission, fee, or wage, to construct, repair, or superintend the construction or repair of any of the projects named in paragraph (a) hereof, or any part thereof, the contract price of which is in excess of $3,000.00, shall, before beginning the execution of such contract, apply for, pay for, and obtain an additional license from the state tax commission, computed at the rate of 50c per each one thousand dollars, or fractional part thereof. Said license when so obtained, shall entitle the holder thereof to enter into and execute the contract named in said license."
Section 244 of said Act provides that "All persons liable for privilege taxes who shall fail to procure the license therefor before beginning the business for which a privilege tax is required by this act . . . shall . . . be liable for the amount of the tax required for such business and fifty per centum thereof. . . ." Recovery was demanded for $6,713.07 as taxes, $3,356.53 as penalty, and $37.50 for pre-bid tax or license and penalty under Section 57(a).
In its amended answer appellee set up the contention that the State Tax Collector was without authority to maintain the suit. In the final decree the learned chancellor found that this contention was well taken and thereupon dismissed the original and amended bills of complaint. It was elsewhere stated in the final decree that "the Chancellor . . . is of the opinion that the defendant is liable for the tax at the rate of fifty cents per thousand dollars of the total contract price, plus contractor's fee as shown by the stipulation but is not liable for the twenty-five dollar preliminary or bid tax nor for any penalty thereof or on the fifty cents per thousand dollar tax. . . ."
We need not pause to analyze these findings nor seek to lend them clarity, nor comment upon the absence of a decree for the payment of any sum. In view of the finding that the State Tax Collector was without authority to sue, which was the basis for the dismissal of the bills, we can see the quoted language only as a gratuitous expression of opinion as to what form the decree would have taken had the suit been maintained.
The only assignment of error we may consider is, therefore, that which involves the right of the appellant to maintain the suit. Appellee stands upon those cases of which Dunn Const. Co. v. Craig, 191 Miss. 682, 2 So.2d 166, 3 So.2d 834; Craig v. Stone, 194 Miss. 767, 11 So.2d 433; and Craig v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230, are typical. We do not find these cases in point as requiring prerequisite determinations by the State Tax Commission in the absence of which suit would be premature. It is true that section 57(c) provides that the application for license shall be made to the Tax Commissioner and section 57(f) requires public officials to report to the State Tax Commission all contracts entered into with any contractor for any project named in paragraph (a). It is also true that under Section 244 it is made the duty of the commissioner to collect the tax and that he may make demand and may issue warrant therefor. But neither these nor any other provision of the Act designate either this duty or the right to enforce it by suit as exclusive in the commissioner. In this respect Dunn Const. Co. v. Craig, supra, is to be distinguished.
The duty and authority of appellant to maintain this suit is found in Code 1930, Section 6986, where he is given the "power and it shall be his duty to proceed by suit in the proper court against all persons, corporations, companies and associations of persons for all past due and unpaid taxes of any kind whatever. . . ." The sole exceptions therein are inheritance and income taxes and penalties under anti-trust laws. Other subsequent laws have limited his authority with respect to taxes imposed thereby. But such limitation has been express, as indeed it must be. We shall not seek to justify our conclusion by further reasoning from other provisions of the 1940 Act.
In view of our conclusion that the State Tax Collector had authority to bring the suit and that the cause must be reversed and remanded, it would be purely advisory to go into matters involving the nature and extent of recovery, if any, which should be allowed after a proper hearing on the merits.
Reversed and remanded.