Opinion
No. 35053.
May 25, 1942.
1. LICENSES.
State Tax Commissioner, in assessing privilege tax imposed upon a person engaged in operating pipe line, is not bound by operator's admission as to length and diameter of his pipe line, but it is commissioner's duty to determine whether operator's claim as to length and diameter of his pipe line is correct, and commissioner has right to require operator to furnish such other information as in his opinion is necessary to ascertain correct amount of privilege tax due (Laws 1935, Ex. Sess., ch. 20, secs. 180, 182, 242).
2. LICENSES.
When amount of privilege tax imposed upon operator of pipe line has been ascertained by State Tax Commissioner pursuant to statute, a suit may be brought to collect tax in event it has not been paid (Laws 1935, Ex. Sess., ch. 20, secs. 180-182, 242, 263).
3. LICENSES.
The recital in ad valorem assessment by State Tax Commission of length and diameter of pipe line of a pipe line operator was not binding on State Tax Commissioner when engaged in ascertaining amount of privilege tax due by operator under statute (Laws 1935, Ex. Sess., ch. 20, sec. 180-182, 242).
4. LICENSES.
A suit by State Tax Collector to recover privilege taxes allegedly due to state from operator of pipe line was properly dismissed, where it appeared that no orders had been made by State Tax Commissioner in compliance with statute by which privilege tax due by operator, if any, could be computed (Laws 1935, Ex. Sess., ch. 20, secs. 180-182).
APPEAL from circuit court of Hinds county, HON. ROSS R. BARNETT, Special Judge.
Alexander Satterfield and Forrest B. Jackson, all of Jackson, for appellant.
This suit by the State Tax Collector was for the purpose of collecting privilege taxes alleged to be due by the defendant, Southern Natural Gas Company, under Chapter 20 of the Laws of 1935, Extraordinary Session, for maintaining and operating pipe lines in the State of Mississippi.
Under the privilege Tax Act, the legislature has divided various businesses into classes for the purposes of taxation, fixing different rates of tax for each class.
Is the right of the Tax Collector to sue for these state-wide privilege taxes dependent upon precedent classification and assessment or other action by the State Tax Commission or State Tax Commissioner?
A careful reading of the entire act shows that it was intended that the same should be administered as a whole, there being only a few minor distinctions arising as hereinafter discussed.
We call the court's especial attention to the fact that there are one hundred or more sections of the law under which the amount of the tax is determined by the existence of certain facts definitely stated in the law, i.e., the size of the municipality or the size or capacity of the instrumentalities used or the daily or annual output of the business.
The details of calculation of the amount of the tax and all of the material matters are identical in the tax levied upon these pipe line companies with such provisions concerning the tax levied upon individuals and corporations generally. The only difference is that which exists concerning railroads, where the State Tax Commissioner is granted unlimited discretion in fixing the limits of the ten classifications to be made upon a basis to be determined solely by him. This same situation existed at the time of the decisions presented to the lower court by the attorneys for the defendants and to which we hereinafter refer.
The tax is levied upon the privilege of exercising the rights described and the amount does not depend upon any sort of assessment or determination of any discretionary fact but solely upon the actual size of the pipe utilized. It is true of practically all of the privilege taxes levied by this act, as well as this tax, that when the facts are given concerning the size of the pipe, the capacity of the other instrumentalities used or the size of the municipality in which the rights are exercised, the amount of the tax ordinarily appears from the provisions of the act itself.
The legislature itself fixed numerous classes into which the various units used by the businesses would fall, as the result of which the amount of tax would be calculated. These units or classes are definitely fixed in the case of slot machines, pipe line companies, sawmills, telephone companies and many other businesses.
Gully v. Matthews, 179 Miss. 579, 176 So. 277.
The outstanding exception to this procedure by the legislature is that of railroads. This exception has long been recognized by our courts and is apparent even upon a casual review of the sections involved.
G. S.I.R.R. Co. v. Adams, 85 Miss. 772, 798, 38 So. 348; Laws of 1898, Sec. 66.
This exercise of discretion in determining factors not actually fixed by the legislature has been always considered to be a step equivalent to the valuation of property by assessment for ad valorem taxes. Of course, such valuation or determination in the exercise of discretion involving variable factors such as value has always been recognized as a condition precedent to the collection of a tax, the amount of which is calculated upon such determination or valuation.
G. S.I.R.R. Co. v. Adams, 83 Miss. 306, 36 So. 144; M. C.R.R. Co. v. State, 110 Miss. 290, 70 So. 355.
The only facts which determine the amount of the tax to be paid by the defendants in these cases are the number of miles of pipe and the diameter thereof. There is absolutely no variable factor nor is there any necessity of a classification, assessment or a determination of factors entering into the class into which the taxpayer may be placed. Therefore, the classification for such privilege taxes has been done by the legislature and the right and authority of the State Tax Collector to sue is perfect without any assessment or classification.
26 R.C.L. 340, Sec. 297; G. S.I.R.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Gully v. Matthews, supra.
See, also, 1 Cooley on Taxation 78 (4 Ed.), Sec. 16; 3 Cooley on Taxation 2114 (4 Ed.), Sec. 1044; 4 Cooley on Taxation 3381 (4 Ed.), Sec. 1676; Hilger v. Moore, 56 Mont. 146, 182 P. 477; Rice-Stix Dry Goods Co. v. Alt, 224 Mo. 493, 507, 123 S.W. 882; State v. Wotz, 40 N.D. 299, 168 N.W. 835.
The fact that in order for a condition precedent to exist there must be a determination of value as a part of the scheme of assessment was early recognized in State v. Tonella, 70 Miss. 701, 14 So. 17, and Johnston v. Puffer Mfg. Co., 111 Miss. 240, 71 So. 377.
In the case of privilege taxes upon slot machines, pipe line companies, and similar businesses, there is no element of value nor any assessment which must be made by the county tax assessor and the State Tax Commission. The tax is levied by the legislature upon classes fixed by it, and the only calculation necessary is the multiplication of the amount of tax by the number of units falling within the bounds set by the legislature. No discretion is vested in any authority, nor is any valuation recognized.
Perhaps the clearest definition of an assessment, which is a condition precedent for the collection of a tax, is set forth in the very recent case of Craig v. Columbus Greenville Ry. Co., 192 Miss. 461, 5 So.2d 681, which was decided on January 26, 1942. This is a direct outgrowth of the Adams cases, supra, which recognize the fact that where a variable question of valuation is to be determined, and the discretion for such determination is placed in a particular official, suit may not be brought to recover the tax until such determination or assessment has been made.
We take the position that under Gully v. Matthews and other authorities it is not necessary for Section 182 of Chapter 20 of the Laws of 1935 to have been complied with in any manner whatsoever in order for this suit to be brought.
It is our position that there has been an actual and substantial compliance with said section by the adoption of an order each year approving and adopting the number of miles of pipe of each size involved whereby the necessary units were ascertained, which order was entered for ad valorem purposes. The same appears in a suitable book which is in the same office, under the jurisdiction of the same officer, signed by him and is a part of his official records.
Such annual order actually ascertained the number of miles of pipe of this taxpayer of each size involved adopting the same exactly as submitted by the taxpayer. Therefore, nothing whatsoever remained to be done other than the clerical duty of multiplying the number of miles of pipe of each size involved by the amount of the privilege tax per mile.
All of this procedure, however, appears of record to have been done with reference to the ad valorem taxation. However, all steps which may have been needed in connection with the payment of privilege taxes were included in and were a part of the action taken concerning ad valorem taxes. It will be noted that not only were the total number of miles in the state ascertained, but such ascertainment was made for each individual county.
The orders which were adopted, copies of which were attached to the declaration, speak for themselves and demonstrate that a technical ascertainment for privilege tax purposes only was entered and designated to be for privilege tax purposes and is the one made each year and exhibited with the declaration, but it is our position that the above procedure concerning ad valorem taxes is a substantial compliance with Section 182 of the said chapter and is sufficient to authorize procedure in this case, if any prerequisite action whatever is required.
R.H. J.H. Thompson and Fulton Thompson, all of Jackson, and Cabaniss Johnston, of Birmingham, Ala., for appellee.
Since it affirmatively shows there was no assessment of the tax, the declaration fails to state a cause of action.
State ex rel. Adam v. Adler, 68 Miss. 487, 9 So. 645; Thibodeaux v. State, 69 Miss. 683, 13 So. 352; State v. Piazza, 66 Miss. 426, 6 So. 316; State v. Tonella, 70 Miss. 701, 14 So. 17; Gulf S.I.R.R. Co. v. Adams, 83 Miss. 306, 38 So. 144; Yazoo M.V.R.R. Co. v. Adams, 83 Miss. 306, 36 So. 144; Gulf S.I.R.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Yazoo M.V.R.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Johnston v. Puffer Mfg. Co., 111 Miss. 240, 71 So. 377; Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4; Enochs v. State, 128 Miss. 361, 91 So. 20; Craig v. Columbus Greenville Ry. Co., 192 Miss. 461, 5 So.2d 681; Craig v. Canton, Aberdeen Nashville R.R. Co., 5 So.2d 682.
See, also, Gully v. Stewart, 178 Miss. 758, 174 So. 559; Robins v. Donovan Creek Drainage District, 152 Miss. 872, 120 So. 184; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully v. Lincoln County, 184 Miss. 784, 186 So. 830.
Appellee takes the position that the result in this cause can in no way be affected by the alleged notation on the ad valorem assessment roll. By reference to Section 2 of Chapter 291 of the Laws of 1932, amending Sections 3204 and 3208 of the Code of 1930, it will be found that the State Tax Commission is made the assessor for ad valorem taxation of the physical properties of gas and pipe line companies, along with the physical properties of the other utility companies there mentioned. The ad valorem utilities assessment roll can be set up and approved only by the commission. On the other hand, no one but the commissioner, namely, the individual who is Chairman of the State Tax Commission, can perform any of the acts leading up to and constituting an assessment of privilege taxes on pipe lines, the commissioner alone being vested with authority to determine, adjudicate and enter orders pertinent thereto. It is clear that the commission has not undertaken to determine, adjudicate and assess the tax here involved, but, if it had undertaken so to do, such attempted determination, adjudication and assessment would have been ultra vires and void. The only person authorized to act was the commissioner, and he declined and refused to act, and that fact is alleged in the declaration in clear and unambiguous language, and that fact constitutes an insurmountable barrier to a recovery against appellee. Green Green, of Jackson, Bramlette Bramlette, of Woodville, Canada, Russell Turner, of Memphis, Tenn., and Wm. A. Dougherty, of New York City, amici curiae.
No cause of action for this pipe line tax arises until classification has been made by the commissioner as required in the act creating the liability.
Secs. 173, 180, 181, 182, 183, 184, ch. 20, Ex. Sess. of 1935.
Appellant strongly urged as controlling the tax upon slot machines, Sec. 204, ch. 20, Ex. Sess. of 1935, but that section begins, "Upon each person operating or permitting to be operated . . . any slot machine . . . a tax according to the following schedules," and each of those schedules is fixed and it is made a condition of the right to operate the slot machine that the operator comply therewith. Naught probably more clearly indicates the difference between the classification required as to utilities and the other section of this act than Section 183: "If at any time any person liable for a tax under the nine next preceding sections, shall increase its classifications so as to require the payment of an additional tax, or shall begin business or construct, or operate additional taxable units, application shall be made to the tax commissioner for additional privilege license, and upon the determination by the tax commissioner of the amount of the tax due, shall pay the same. The tax commissioner shall issue such privilege license to expire on December first following, and shall collect the pro rata annual tax according to the number of months between the date of liability and December first following."
Thus, where the business is increased or additional taxable units are to be enjoyed, application must not be for a privilege tax, but for a classification and "upon the determination by the commissioner of the amount of the tax due (it) shall pay the same." In short, classification precedently required by the commissioner is the criterion. Turn to Sections 244, 245, ch. 20, Ex. Sess. of 1935, of the Privilege Tax Code. Under these sections the party exercising the privilege fixes the amount by the affidavit, if essential, and the license issues, but as to the utility classification by the commissioner, it must occur in the words of the statute before there can be a tax demand, but the slot machine cases are, with deference, not persuasive because in that provision there is no requirement that the Tax Collector, upon the application filed "shall ascertain and set forth the units to be used in determining the tax due to be paid . . . and shall enter his findings in a suitable book, and the same, when made, shall remain open and subject to objections thereto, if any, which must be filed in writing by the taxpayers," and then there is naught found that even approximates the declaration, "It shall be the duty of the Commissioner to hear and determine all objections filed, and his decision in the matter shall be final, except as to the right of such order . . . to be reviewed by a court of competent jurisdiction." This does not appear in the slot machine sections.
The liability of the public utility is to be paid "on or before the 1st day of December in each year . . .," whereas, as to the slot machines, it needs be paid before it is in any way operated.
Sections 241, 244, 245, Chapter 20, Ex. Sess. of 1935.
In no other tax is it requisite that the classification is to be made "not later than the first Monday in August in each year," whereafter, the power of classification ceased.
Gulf S.I.R.R. Co. v. Adams, 85 Miss. 772, 38 So. 348.
In appellant's analysis of the utility privilege tax, opposite counsel inadvertently overlooked Section 173, wherein the declaration is, "there is hereby imposed and levied and shall be collected annual privilege taxes . . . which said tax shall be levied and collected as herein provided." Then follow the sections imposing the tax upon telephone companies, electric light and power companies, railroad companies, telegraph companies, and then under Section 183 referring specifically to the nine next preceding sections and making distinct impositions thereasto different from those carried as to all other privilege taxes. Had the Legislature not had a different legislative intent as to public utilities, it would not have thus segregated and separated the privilege tax imposition upon them from the general sections which are not expressly made applicable to these utilities. Recognizing the large amount of money that would probably accrue from these taxes on public utilities, the Legislature consciously adopted thereasto this policy of segregation and placed the undivided responsibility for other instances whereto this court has recently adverted.
Classification was, as to a pipe line, especially, exclusively vested for "this section shall not apply to those . . . corporations . . . mining or producing gas on which a privilege tax measured by gross production is imposed and paid in this state." Thereof the commissioner had exclusive jurisdiction. Dunn Construction Co. v. Craig, 191 Miss. 682, 1 So.2d 166. No one better than the commissioner could tell on what gas this production tax had been paid, and if it had been paid, then the pipe line tax was not applicable.
Likewise, if the commissioner found that the business done by the pipe line, so-called, was merely obtaining gas for utilization in distribution systems, and the sole revenue derived was from the ultimate consumer, he could find non-liability.
Appellant assumed to contend that as to other utilities, such classification was not requisite, but note, "At the same time, shall ascertain and set forth the units to be used in determining the tax due to be paid by the public utilities . . . hereinbefore mentioned, and make such classification of the same as will clearly show the amount of tax to be paid by each such public utility . . . and shall enter his findings in a suitable book."
Thus, we have a specific requirement of classification by the utilization of the word itself. When such a word appears in one portion of the statute, it is well settled that normally it will have the same meaning in other portions.
Harvey v. Johnson, 111 Miss. 566, 71 So. 824.
The factual contentions of appellant require an expert for their solution and now here substantially asked is that this court take from the commissioner the solution of those intricate questions submitted by the Legislature exclusively to him in the first instance.
The statutes imposing privilege taxes are to be strictly construed against the taxing power and all doubts must be resolved in favor of the taxpayer.
Stone v. Rogers, 186 Miss. 53, 189 So. 810; 10 Miss. Digest, Title "License," Key No. 81; State ex rel. Knox v. Panhandle Oil Co., 147 Miss. 663, 112 So. 584.
Privilege taxation of railroads require classification as a condition of liability.
Chap. 20, Ex. Sess. of 1935; Sec. 3379, Mississippi Code of 1892; Chap. 5, Laws of Mississippi 1898; Adams v. Railroad Co., 77 Miss. 194, 28 So. 956; Railroad Co. v. Adams, 77 Miss. 778, 25 So. 355; Railroad Co. v. Adams, 81 Miss. 105, 32 So. 937; Railroad Co. v. Adams, 83 Miss. 306, 36 So. 144; Gulf, etc., Co. v. Adams, 90 Miss. 559, 45 So. 91; N.O.M. C.R. Co. v. State, 110 Miss. 290, 70 So. 355.
With these adjudications construing this method of classification, in 1930 the Legislature adopted the present act and placed this pipe line in the same class as the railroads. Therefore, the Legislature, having in mind the judicial construction thus made that classification constituted a prerequisite as to railroads, placed pipe lines there and not among those occupations where the operator was the exclusive actor and the law in that behalf is thus stated.
One of the long established rules of statutory construction is that where a statute has been construed by the Supreme Court and afterwards reenacted in substantially the same terms, the Legislature by such reenactment adopted such construction along with the statute. The Legislature, in reenacting the statute, is presumed to have known the construction put upon it by the Supreme Court.
White v. Williams, 159 Miss. 732, 132 So. 573, 76 A.L.R. 757.
So, when this requirement was thus reenacted, each of these decisions was thereby integrated thereinto legislatively so that this court could not depart therefrom.
Compare Mississippi Power Light Co. v. Garner, 179 Miss. 588, 176 So. 280; Russell v. Federal Land Bank, 180 Miss. 55, 176 So. 737; 13 Mississippi Digest, Title "Statutes," Key No. 225 3/4; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Bell v. Mississippi Orphans Home, 192 Miss. 205, 5 So.2d 214.
The Legislature being cognizant of that connoted by classification as to railroads, saw fit to put the other utilities upon precisely the same basis; in short, with the right to place them where classification was essential or not essential. The Legislature placed them where it knew under the decisions of this court precedent classification was requisite and having done so, the effect of this voluntary selection by the Legislature must be given effect.
Craig v. Columbus Greenville Ry. Co., 192 Miss. 461, 5 So.2d 681.
Argued orally by Jas. A. Alexander, for appellant, by J.H. Thompson, for appellee, and by Garner Green, amici curiae.
This is an action at law by the appellant to recover from the appellee, a Delaware corporation, privilege taxes alleged to be due by it to the state for the years 1936 to 1940, inclusive, under Section 180, Chapter 20, Laws Ex. Sess. 1935, a demurrer to the declaration was sustained and the cause dismissed. The demurrer challenged (1) the authority of the State Tax Collector to sue for the privilege tax imposed by this statute, and (2) the right of any one to sue therefor in the absence of an order by the Tax Commissioner setting forth the "units to be used in determining the tax due to be paid by the public utilities," required by Section 182 of the statute. If it appears from the appellant's declaration that no such "findings, determination and classification" of the appellee's pipe line has been made by the Tax Commissioner, the case while factually different from Craig v. Columbus Greenville R. Co., 192 Miss. 461, 5 So.2d 681, is within and governed by the rule there applied, and the judgment of the court below must be affirmed on the second ground of the demurrer. We will, therefore, come at once to that ground of the demurrer.
Section 180, Chapter 20, Laws of Ex. Sess. of 1935, which deals with privilege taxes, imposes "upon each person engaging or continuing in this state in the business of operating a pipe line or transporting in or through this state oil, or natural or artificial gas, through pipes, or conduits, a tax, as follows:
"On each mile of pipe having a diameter of 20 inches or more . . . $50.00," etc.
The tax is payable to the Chairman of the State Tax Commission, designated in the statute, and hereinafter, as the "Tax Commissioner," in December of each year, who, on receipt thereof, issues the applicant a license for conducting the business for the year following. Sections 181-183 impose on the Tax Commissioner the duty to
"Sec. 181. Each person required by the foregoing eight sections to pay a privilege tax, doing business in this state, shall annually on or before the first day of June in each year, under oath, make and file with the tax commissioner an application upon blanks prescribed and furnished by and in such form as the tax commissioner may prescribe, which shall contain:
"1. The name of the company.
"2. The nature of the company, whether a person or persons, or association or corporation, and under the laws of which state or county organized.
"3. The location of its principal office.
"4. The name and postoffice address of the president, secretary, auditor, treasurer, and superintendent, or general manager.
"5. The name and post office address of the chief officer or managing agent of the company in this state.
"6. The entire gross earnings, including all sums earned or charged, whether actually received or not for the next preceding calendar year, or fiscal year, from every source derived, and business done within this state; and the total gross earnings of such person, firms or corporation for such period.
"7. The total number of miles of railroad track operating within and without this state; the total number of miles of gas mains or pipe lines, and the diameter of same, specifying the number of miles of each diameter of pipe, or total number of miles of railroad over which its business is carried or its cars operated; or the total number of pole miles; but each person shall be required to furnish in his application only the information pertaining to his operation; and such other and further information as the tax commissioner may require.
"Sec. 182. The tax commissioner shall annually, on the first Monday in July, or as soon thereafter as is practicable, but not later than the first Monday in August of each year, classify the several railroads, and the branches thereof, operating through this state in proportion to the gross earnings or volume of business of each, into five classes numbered consecutively from one to five; and at the same time shall ascertain and set forth the units to be used in determining the tax due to be paid by the public utilities or persons hereinbefore mentioned, and make such classification of the same as will clearly show the amount of tax to be paid by each such public utility, or person, and shall enter his findings in a suitable book, and the same when made, shall remain open and subject to objections thereto, if any, which must be filed in writing by the taxpayers for a period of thirty days.
"It shall be the duty of the tax commissioner to hear and determine all objections filed, and he may make such correction in his determination, classification, findings or order, as he may deem proper, and his decision in the matter shall be final, except as to the right of such order or findings to be reviewed by a court of competent jurisdiction. The findings, determination, and classification, as made by the said tax commissioner shall be entered in a suitable book and a copy thereof certified to the auditor of public accounts to be preserved by him as a record in his office, for the purpose of auditing the proper tax to be collected from the respective taxpayers affected by said order.
"Sec. 183. If at any time any person liable for a tax under the nine next preceding sections, shall increase its classifications so as to require the payment of an additional tax, or shall begin business or construct, or operate additional taxable units, application shall be made to the tax commissioner for additional privilege license, and upon the determination by the tax commissioner of the amount of the tax due, shall pay the same. The tax commissioner shall issue such privilege license to expire on December first following, and shall collect the pro rata annual tax according to the number of months between the date of liability and December first following."
"ascertain and set forth the units to be used in determining the tax due to be paid by" a person engaged in the business of operating a pipe line "and make such classification of the same as will clearly show the amount of tax to be paid by" him, and to "enter his findings in a suitable book."
The declaration alleges in substance that the appellee filed with the Tax Commissioner for each of the years here involved the statement required by Section 181 of the statute, showing the length and diameter of its pipe line. Each of these statements setting forth that "the information herewith supplied by the undersigned is submitted to the Tax Commissioner solely for statistical purposes and is not to be treated as an admission of liability for the payment of the privilege tax on pipe lines provided for by Section 178 of House Bill No. 1137, chap. 120, being the privilege tax law of 1940, since the undersigned is advised and believes and takes the position that, because of the interstate character of its business, it is not liable for the payment of the tax." The declaration then proceeds "that nevertheless during each of said years the said State Tax Commission and Tax Commissioner entered an order in its record of minute books to the effect that it could not perform the said duties imposed upon it because of a restraining order theretofore issued against the State Tax Commission in a suit in the Federal District Court of the Southern District of Mississippi, styled `State Tax Commission of Mississippi v. Interstate Natural Gas Company,' and being number 344 on the equity docket of said Court, which the said Tax Commission said applied to it and prevented it from so doing. That the defendant was not a party to said suit, and the facts therein concerning the liability of the Interstate Natural Gas Company were entirely different from the facts herein alleged." Each of the orders here referred to set forth that "it appearing that certain other pipe line companies and telephone companies have heretofore secured from the Federal District Court an order restraining the State Tax Commission from taking any steps to enforce the collection of privilege taxes from the said companies, upon the grounds that they are engaged solely in interstate commerce, and that the said order applies to the commissioner, and that he cannot perform the duties imposed upon him by The Privilege Tax Law of 1934, Laws 1934, chap. 118, as amended, with respect to the said companies.
"It is further ordered and adjudged, that the matter of determining the units and the amount of the privilege taxes due by the said companies, and other companies or persons operating in a similar manner, or any other persons, firms or companies, be, and the same is hereby continued until the said order of the Federal District Court has been dismissed, modified, or set aside; or until it shall appear that the Commissioner may lawfully proceed to determine the said units and the amount of privilege taxes due, reserving all rights as to the adjudication of any facts and laws, and the liability of the said companies for privilege taxes."
It thus appears that no orders have been here made by the Tax Commissioner in compliance with Section 182 of the statute by which the privilege tax due by this appellee, if any, can be computed.
But the appellant says that no such order was here necessary in order for the maintainance of this suit for two reasons:
(1) The statements filed by the appellee disclosed the length and diameter of its pipe line, thereby rendering it unnecessary for the commissioner to make an order finding those facts.
The Tax Commissioner was not bound by the appellee's admission as to the length and diameter of its pipe line. It was his duty to determine whether the appellee's claim as to the length and diameter of its pipe line was correct and he had the right under Section 242 of the statute to require it "to furnish such other and further information as in his opinion is necessary to ascertain the correct amount of tax due." His determination, when set forth in an order after hearing and passing on objections thereto by the taxpayer, is final "except as to the right of such order or findings to be reviewed by a court of competent jurisdiction." Sections 182 and 242 of the statute. Such is the method prescribed by the statute for ascertaining the amount of privilege tax due by a person engaged in the business of operating a pipe line, consequently it can be ascertained over the taxpayer's objection in no other way. When, but not before, the amount of this tax has been so ascertained a suit may be brought to collect it under Section 263 of the statute in event it has not been paid.
(2) The appellant's second reason in support of its claim that no such order was here necessary is that the declaration alleges that the State Tax Commission in assessing the appellee for ad valorem taxes in each of these years on the value of its pipe line set forth in its assessment the pipe's length and diameter. The State Tax Commission has nothing to do with the collection of this privilege tax, that duty being imposed by the statute on its Chairman designated therein as the Tax Commissioner. A casual examination of the pertinent sections of the statute will so disclose. The recital in this ad valorem assessment by the State Tax Commission of the length and diameter of the appellee's pipe line was not binding on the Tax Commissioner when engaged in ascertaining the amount of the privilege tax due by the appellee. Moreover, the time when the State Tax Commission assesses property for ad valorem taxes, the method by which it proceeds and the matters it takes into consideration are different from the time, procedure, and matters considered by the commissioner in ascertaining the amount of privilege taxes due under Section 180 of the statute.
Since the judgment of the court below must be affirmed on the second ground of the demurrer, it will not be necessary for us to consider the first.
Affirmed.