Summary
discussing that when the subject matter of litigation is of statewide interest, the Attorney General is the one with the right to represent the State
Summary of this case from Hood ex rel. Mississippi v. Astrazeneca Pharmaceuticals, LPOpinion
No. 34595.
May 12, 1941. Suggestion of Error Overruled September 22, 1941.
1. TAXATION.
Where only question presented on appeal in suit by State Tax Collector against highway contractor to collect gross income tax was whether collector had authority to maintain suit or whether right was vested exclusively in chairman of State Tax Commission, whether position of commission in refusing to give retroactive effect to court decisions or opinions of Attorney General was sound was not for decision (Laws 1934, ch. 119).
2. STATUTES.
Where there is special statute dealing particularly and specifically with part of subject matter embraced within general statute, special statute will ordinarily be regarded as exception or qualification engrafted on general statute to extent that latter is in conflict or in apparent conflict with former.
3. ACTION.
Where a statute creates a new right and also provides a remedy for its enforcement, it is ordinarily held that such remedy is exclusive.
4. TAXATION.
Fact that gross income tax was made a debt recoverable by action under statutes imposing tax was not determinative of State Tax Collector's right to sue (Code 1930, secs. 3122, 6986; Laws 1930, ch. 90).
5. TAXATION.
State Tax Collector was not entitled to maintain suit to collect gross income tax where Sales Tax Act provided that enforcement of act in courts should be under "exclusive jurisdiction" of chairman of State Tax Commission, since quoted words preclude idea of coexistence, and in the ordinary speech of the people, mean possessed to the exclusion of others (Laws 1932, ch. 90, sec. 16, as amended).
6. STATUTES.
In interpretation of statutes, words in common use are to be construed in their natural, plain and ordinary signification.
7. TAXATION.
State Tax Collector was not given right to sue for collection of gross income tax by statute providing that tax should constitute debt due state and lien on taxpayer's property and could be collected by action in debt or other appropriate judicial proceedings, and such remedies were in addition to all other existing remedies, since such provisions appeared in other statutes imposing taxes for collection of which State Tax Collector was denied right to sue (Code 1930, secs. 3673, 5025-5101, 6986; Laws 1934, ch. 119, sec. 11).
8. LICENSES.
An intention of legislature to permit State Tax Collector to bring suit for enforcement of Sales Tax Act was not disclosed by section preventing disclosure of tax information except to certain persons, including Governor, Attorney General or "any other legal representative of state," on theory that quoted words could refer to no other person than State Tax Collector (Laws 1934, ch. 119, sec. 14).
9. TAXATION.
State Tax Collector was not entitled to sue for collection of gross income tax on theory that sales tax statutes should not be construed so as to leave it to will and discretion of Chairman of State Tax Commission as to whether tax should be collected, where same argument could be applied to enforcement of income and inheritance tax laws, which taxes were excepted from those for which State Tax Collector might sue, administration of most all of other new forms of taxes had been placed under chairman's jurisdiction, and Attorney General would have right to bring suit (Laws 1932, ch. 90, sec. 16, as amended).
10. ATTORNEY GENERAL.
The Attorney General's right to institute, conduct and maintain all suits necessary for enforcement of laws of state, preservation of order and protection of public rights is not confined to enforcement of criminal laws, but applies also to all matters of state-wide public interest in any of courts of state.
11. LICENSES.
The legislature had authority to vest jurisdiction in regard to enforcement of sales tax laws in courts in Chairman of State Tax Commission to exclusion of any other official authorized by law to bring suits to collect taxes whose authority was derived solely from statutory enactment, as distinguished from that conferred by Constitution (Laws 1932, ch. 90, sec. 16, as amended).
ON SUGGESTION OF ERROR. (In Banc. Sept. 22, 1941.) [3 So.2d 834. No. 34595.]COURTS.
Where sole question in case was whether statute withdrew from State Tax Collector the right to bring suit to collect gross income tax, whether statute also withdrew such right from Attorney General was not before Supreme Court, and any opinion expressed thereon was mere "dictum" (Laws 1938, ch. 113, sec. 16; Const. 1890, sec. 103).
APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
Watkins Eager, Chambers Trenholm, and J.H. Thompson, all of Jackson, Heidelberg Roberts, of Hattiesburg, and Jacobson, Snow Covington, of Meridian, for appellant.
Section 16, Chapter 119, Laws of 1934, vested exclusive jurisdiction in Chairman of State Tax Commission.
What is "Exclusive Jurisdiction?"
See 1915 Act, Sec. 11; 23 C.J. 274; Commonwealth ex rel. v. Superintendent of House of Correction, 64 Pa. Sup. St. 613; Mississippi Code, 1930, Sec. 1394; People v. Fuchs, 166 App. Div. 811, 152 N.Y.S. 445-446; State ex rel. Murphy v. Taylor, Superior Court Judge, 172 P. 217, 219; Watson v. Henderson, 98 Ark. 63, 135 S.W. 461.
Of course, the matter involved in this litigation is simply one of statutory construction. The appellee relies upon Section 6986 of the Mississippi Code of 1930 for his authority to bring this suit, while the appellant relies upon the provisions of the Sales Tax Act, and particularly section 16 thereof, as conferring exclusive power and jurisdiction upon the Chairman of the State Tax Commission.
There are certain fundamental rules which control the courts in the construction of statutes, the first being that the court will endeavor to ascertain the legislative intent and accord to the statute or statutes in question that construction or interpretation which is in accord with such legislative intent. In order to determine the legislative intent, however, especially where there is any ambiguity, or where there is any apparent conflict, there are certain other rules which will be followed by the courts. One is to inquire into the history of the legislation and determine therefrom the public policy of the state, as disclosed by the course of legislation on the subject. Another fundamental rule is that where there are two statutes, one a general statute whose language is broad enough to cover the same subject matter as that covered by the special statute dealing with only one or more phases of the matters covered by the general statute, and the two statutes are in either direct or apparent conflict, the provisions of the special statute will control over the provisions of the general statute. In other words, the special statute will be construed to be an exception to the general statute, and this is true without regard to whether the special statute was enacted before, at the same time as, or later than, the general statute. Another rule is that where there are two statutes dealing with the same subject matter, which are in conflict with each other in any respect, that statute which was last enacted by the legislature will control over the one first enacted. Still another rule of construction is that when a statute is enacted which creates a new cause of action or fixes a liability, one which did not theretofore exist, and such statute prescribes the procedure for the enforcement thereof, such procedure is exclusive whether the statute so provides or not, and this rule is particularly true to a statute which creates a tax liability which did not theretofore exist.
Provisions of special statute creating new tax and procedure and machinery for collection and enforcement must be followed to exclusion of any other remedy; and this is true where statute silent as to use of word "exclusive"; a fortiori where statute expressly provides such procedure is "exclusive."
See Act of 1928, Ch. 71; Code of 1906, Sec. 4256; Code of 1930, Sec. 6986; Enochs v. State ex rel. Robertson, 128 Miss. 361, 91 So. 20; Hattiesburg Grocery Company v. Robertson, 126 Miss. 34, 88 So. 4; Hunt v. Hunt, 172 Miss. 732, 161 So. 119; Laws of 1912, Ch. 101; Laws of 1918, Ch. 109; Laws of 1922, Ch. 130; Laws of 1924, Ch. 132, Sec. 32; Laws of 1924, Ch. 133, Sec. 32; Laws of 1924, Ch. 134; Laws of 1926, Ch. 286; Laws of 1928, Ch. 25.
Sales Tax Statute vests exclusive jurisdiction in Chairman of State Tax Commission.
See Act of 1932, Sec. 16; Beulah-Witts Consolidated School Dist. v. Johnson, 126 Miss. 848, 89 So. 668; Code of 1930, Sec. 3753; Code of 1930, Sec. 4363; Code of 1930, Sec. 4366; Code of 1930, Sec. 6986; 1 C.J. 988 (100); 1 C.J. 988 (101); 1 C.J. 989 (102); 1 C.J.S., p. 974; Enochs v. State ex rel. Robertson, 128 Miss. 361, 91 So. 20; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully v. Lumbermen's Mutual Cas. Co., 176 Miss. 388, 166 So. 541; Hargrove v. Baskin, 50 Miss. 194; Hattiesburg Grocery Company v. Robertson, 126 Miss. 34, 88 So. 4; Johnson v. Puffer Mfg. Co., 111 Miss. 240, 71 So. 377; Laws of 1918, Ch. 157; Laws of 1920, Ch. 207; Laws of 1930, Ch. 90; Laws of 1930, Ch. 88, Sec. 103 (a); Laws of 1932, Ch. 90; Laws of 1934, Ch. 119, Sec. 16; Laws of 1936, Ch. 155; Laws of 1938, Ch. 114; Miller v. Coahoma County, 157 Miss. 404, 128 So. 348; Robertson v. Monroe County, 118 Miss. 520, 541, 79 So. 184, 187; Robins v. Donovan Creek Drainage Dist. No. 2 et al., 152 Miss. 872, 120 So. 184; Sales Tax Act, Sec. 16; State v. Piazza, 66 Miss. 426, 6 So. 316; State Revenue Agent v. Tonella, 14 So. 17, 70 Miss. 701; Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577; White v. Insurance Commissioner, 162 Miss. 751, 139 So. 874.
The action of the State Tax Collector is unauthorized and his assumption to act is a nullity and not binding on the State of Mississippi.
See Code of 1930, Sec. 6986; Gully v. Stewart, 178 Miss. 758, 174 So. 559; State ex rel. Rice, Attorney-General, v. Stewart et al., 184 So. 44.
The so-called sales tax, computed on value of contract price, is in fact a tax on gross income, and thus by express provisions of statute creating office of State Tax Collector excluded from his powers and duties.
61 C.J. 75, Para. (6); Code of 1930, Sec. 6986; Johnson v. Hartford Ins. Co., 109 Miss. 808, 69 So. 686; Laws of 1912, Ch. 227; Notgrass Drug Company v. State ex rel. Greek L. Rice, Attorney-General, 175 Miss. 358, 165 So. 884.
Legislative history and public policy of state demonstrate abridgment of powers of State Tax Collector and emphatic intention to collect sales tax, income tax, inheritance tax, use tax, etc., under exclusive jurisdiction of Tax Commission, and freed of collection commissions.
See Johnson v. Reevees, 112 Miss. 227, 72 So. 925.
Forrest B. Jackson, W.E. Gore, and Creekmore Creekmore, all of Jackson, for appellee.
We rely on the act of 1934, as amended, and Sections 3122 and 6986 of the Code of 1930, to support our contention, that the tax collector is authorized to prosecute this suit with effect, also court decisions sustaining our view in this respect.
The tax in question is an excise or privilege tax. It cannot be sustained as any other kind, in the face of the Constitution of 1890, particularly, Section 112, providing for equality and uniformity. Moreover, it is so denominated in Section 2, Laws 1934. The fourth paragraph of Section 11, Laws 1934, reads as follows: "The tax due and unpaid under the provisions of this act shall constitute a debt due the state and it shall constitute a lien upon all of the property of the taxpayer, and the same may be collected by an action in debt, or other appropriate judicial proceeding, which remedies shall be in addition to all other existing remedies."
Section 3122, Code of 1930, reads as follows: "Taxes a debt recoverable by action. — Every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem, privilege, excise, income, or inheritance, is a debt due by the person or corporation owning the property or carrying on the business or profession upon which the tax is levied or imposed, whether properly assessed or not, or by the person liable for the income, inheritance or excise tax, and may be recovered by action; and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct."
What is an excise tax? See R.C.L. 26, Section 18, page 34; Hattiesburg Grocery Company v. Robertson, 88 So. 4, 126 Miss. 34, 25 A.L.R. 748. See, also, 26 R.C.L., Section 209, page 236. Excise taxes include privilege, inheritance and income taxes. Nevertheless, they are scheduled in Section 3122, supra, as constituting a debt recoverable by action. Scheduling them serves no useful purpose beyond putting the matter beyond doubt, that they constitute debts due the state. Gasoline taxes are a form of excise taxes. So, also, are sales and contractor's taxes forms of excise taxes. And they are recoverable by action in debt. If Section 11, Acts of 1934, had never been adopted, the tax here involved would be recoverable in a debt action under Section 3122, of the Code.
The powers and duties of the tax collector are scheduled in Section 6986, Code of 1930.
To meet those plain and unequivocal provisions, the appellants rely on Section 16 of the Act of 1934, page 23, conferring what is said to be exclusive jurisdiction on the Chairman of the Tax Commission, to the exclusion of every other officer and every power of the state to collect and cover into the treasury any or all of the revenues levied by the legislature in the whole Act of 1934, This record shows an absolute refusal on the part of the chairman to collect what is well said in the brief of the appellant to amount to a million dollars. Such a construction of the statute involves the assumption, that the legislature intended to levy a tax to raise enormous sums of money and deliberately left it to the whim, notion, fancy or caprice, judgment or lack of judgment of one man occupying an administrative position and nothing more to collect or not to collect any part or all of the revenues that might be derived from the enforcement of the act.
Liability for taxes is a judicial question and the state, as well as the tax-payer, is entitled to have a judicial determination of the question.
The history of this legislation will, as we believe, show that Section 16, supra, relates solely to criminal prosecutions. An analysis of the Act will show that if Section 16 means more, the various parts of the Act will not harmonize.
Section 16 of the Act provides among other things that the enforcement of any of the provisions of the act in any of the courts of the state shall be under the exclusive jurisdiction of the Chairman of the State Tax Commission. Appellants say that this provision of the law gives the chairman exclusive jurisdiction of every part and parcel of the act and that the appellee has no right to bring suit to collect taxes due by the appellant. If so, why does Section 10 of the Act so carefully provide for representation of the Commissioner by the Attorney General in the matters treated of in that section. And the same may be said as to Section 11, except as to that part thereof that provides for collection of the tax by an action in debt as an additional remedy. And if this is true why does Section 14 of the Act, after mentioning the members and employees of the Commission, the Governor and Attorney-General as among those excepted from the confidential requirements of the Act, then also except "any other legal representative of the State in any action in respect to the amount of tax due under the provisions of this Act"? What other legal representative may bring any action in respect to the amount of the tax if the Commissioner has exclusive jurisdiction of such action? True under the statute the Commissioner might sue but he has not done so; the Attorney-General might sue but he has not done so; the Governor under certain conditions might sue but these conditions have not arisen; there is no other legal representative of the state that could have been in the mind of the legislature except the appellee here. So to reconcile the various provisions of the Act and make them harmonious we must assign to the words found in Section 16 "exclusive jurisdiction of the Chairman of the State Tax Commission" some other meaning than that contended for by appellant. The history of Section 16 as well as its language shows that it was treating of violations of the criminal aspects of the Act and not of the collection of the revenue under the act.
As originally drafted, Section 14, Chapter 90, Laws of 1930, contained no provision authorizing an inspection by the Governor or of the Attorney-General, eo nomine. The act read, "except to . . . or to the legal representative of the State in any action in respect to the amount of tax due under the provisions of this Article." Of course, the Governor and the Attorney-General were included, originally, in the class of representatives of the state who were authorized to bring actions, because they can bring actions in proper cases. By scheduling them before "any other legal representative," the limitation, that an action shall be brought first, on their right to examine or inspect the records disappeared and the right became absolute. The Governor and Attorney-General were named in the Act of 1932, for the first time. That the State Tax Collector is the officer referred to in the expression, "any other legal representative," cannot be doubted. In the state of the law as it then existed and exists now, no officer other than the Tax Collector could or can bring an action for the taxes.
The legislature never would have provided that information may be made available to any representative who brought an action, if the representative could not bring the action. He could never get it, if he could not sue. It is folly, to argue that the jurisdiction is exclusive, in the face of this provision and Section 11 making these taxes a debt. These provisions are, beyond doubt, what is covered by the expression, "except as otherwise herein provided," in Section 16. Coupled with Sections 3122 and 6986 of the Code of 1930, they put this matter beyond dispute.
While we do not concede it, if it be conceded, that the chairman has the power to control the collection of these taxes which are levied by the act itself, this theory cannot possibly be extended beyond the proposition, that he should discharge the duty by collecting. No legislative act ought to be distorted, by construction, to mean that an officer solemnly vested with the exclusive power and charged with the duty to collect a tax, may absolutely refuse to collect it himself or make a purely mathematical calculation of 1% of a base the amount of which is not in dispute, by way of assessment, in aid of another officer to collect it, and thereby cut off all possibility of collection by any other officer. We submit that when the act says, "There is hereby levied and shall be collected annual privilege taxes . . .," the legislature meant the taxes should be collected. The act nowhere provides that the chairman may collect, at his discretion, or according to his fancy, or provided he thinks the collection ought to be made, or that, if he makes a million dollar mistake he can "just skip it and be a little more careful in the future," or, refuse, to adopt his language, "to give retroactive effect to new court decisions, or to new opinions of the Attorney-General, any more than to new laws."
The chairman refused to cooperate with the Tax Collector, as also did the Attorney-General, as alleged in the declaration. The demurrer admits these facts, of course. Therefore, there is no conflict of authority between officers or usurpation of the powers of one by another. The question before this court is plain: Will the statute be destroyed and its whole purpose overthrown by construction?
Section 3122 of the Code of 1930 makes privilege and excise taxes debts, collectible by suit, as does, also, Section 11 of the Act of 1934, page 20, and it is provided that the remedy "shall be in addition to all other existing remedies."
Section 6986 of the Code of 1930 not only authorizes but commands the State Tax Collector to sue for "all past due and unpaid taxes of any kind whatsoever . . . and for all past due obligations and indebtedness of any character . . . except penalties for violation of the anti-trust laws and except income and inheritance taxes."
See Gully v. Williams, 182 Miss. 119, 180 So. 400; Gully, v. Stewart, 178 Miss. 758, 174 So. 559.
"Exclusive" never did mean that an officer may, by ignoring the positive mandate of the statute he was sworn to enforce, cut off the power of another officer to discharge a duty the other was positively and primarily charged to perform. In no case can the Tax Collector function until some other officer has failed or refused to discharge his duty.
The argument is made, that the design of the legislature, in vesting "exclusive" jurisdiction in the chairman was to prevent the depletion of the funds going into the treasury by paying what counsel pretend or appear to think is an outrageous commission to the Tax Collector.
This same economy argument seems to have been made in McClellan v. Gully, 172 Miss. 431, 160 So. 567, but Chief Justice SMITH, construing Sections 6986 and 6770 of the Code of 1930 said: "That a suit under the second statute may involve no expense to the county, or a reduction of the amount collected, while the former does, is not sufficient to indicate that the legislature intended to withdraw from the State Tax Collector the power conferred on him by the first section." Undoubtedly, the county superintendent had the power to collect, under Section 6770, and this power would have been exclusive, if he had exercised it, but this power, unexercised, did not exclude the power of the Tax Collector to sue for and recover sixteenth section funds. So, also, here, if the chairman had made any effort to collect, his power would have been exclusive. The duty of this court here is to do what was done there, to construe the Act of 1934 and Section 6986 together and harmonize them.
In the McClellan Case, the court said: "Section 6770, Code of 1930, appears in the chapter of the Code dealing with schools, and it authorizes the county superintendent of education to sue for all past due loans of sixteenth section funds. This, and the former section (6986) must be construed together, and harmonized, if possible. This can be easily done, for the effect of the two sections, in this connection, is only to confer power on each of two public officers to institute suits of this character. Such a purpose appears in other statutes involving the duties of the State Tax Collector, and is within the power of the legislature."
See Gully v. Matthews, 179 Miss. 579, 176 So. 277.
If, as was held in Robertson v. Bank, 116 Miss. 501, 77 So. 318, and Robertson v. Monroe County, 118 Miss. 541, 79 So. 187, cited in the Matthews Case, where two officers are authorized to sue, the one suing first has the exclusive right to prosecute the action, it appears to us there is no reason to say one officer cannot sue where another has not failed but refused point blank and absolutely to take any steps whatsoever to recover the state's debt.
The provision as to exclusive control over court actions, as we believe, relates to criminal prosecution, as we have said hereinbefore. But, if we are mistaken about this, no statute conferring exclusive jurisdiction can have more vitality than a constitutional provision to that effect.
Gully v. Lincoln County, 184 Miss. 784, 185 So. 795.
Butler Snow, Stevens Stevens, Lotterhos Travis, all of Jackson, and Thomas J. Tubb, of West Point, Attorneys as Amici Curiae.
The history of the statutes, the construction placed upon similar statutes by the Supreme Court, and the status of the law at the time the Sales Tax Act was passed show that the legislative intent was not to give the Tax Collector authority to sue for the tax here involved. Adams v. City of Greenville, 77 Miss. 881; Adams v. Railroad Company, 76 Miss. 714; Aetna Ins. Co. v. Robertson, 126 Miss. 387; 59 C.J. 893; 59 C.J. 1013-1017; Clark v. Revenue Agent, 80 Miss. 219; Code of 1892, Section 4200; Code of 1906, Sec. 4738; Code of 1906, Sec. 4749; Enochs v. State ex rel. Robertson, 128 Miss. 361; Greaves v. Hinds County, 166 Miss. 89; Gully v. Mutual Cas. Co., 176 Miss. 388; Gully v. Stewart, 178 Miss. 758; Hattiesburg Gro. Co. v. Robertson, 126 Miss. 34; House Concurrent Resolution 65, Code of 1930, p. 161; Hunt v. Hunt, 172 Miss. 732; Laws of 1890, Ch. 8; Laws of 1892, Ch. 126; Laws of 1894, Ch. 34; Laws of 1920, Ch. 113; Laws of 1924, Ch. 170; Laws of 1924, Ch. 330; Laws of 1926, Ch. 286, Sec. 7; Laws of 1926, Sec. 6, Chs. 286, 287, 288, 289, 290, 291; Ch. 182, Laws of 1926; Laws of 1930, Ch. 91; Malouf v. J.B. Gully, State Tax Collector, 187 Miss. 331; McBride v. State, 70 Miss. 716; Miller v. Coahoma County, 157 Miss. 404; Mississippi Code of 1892, Ch. 126; Mississippi Code of 1906, Ch. 131; 26 R.C.L. 380-1; 25 R.C.L. 959, 982, 993, 1010, 1011-1012; Revenue Agent v. Johnson, 72 Miss. 896; Robertson v. Monroe County, 118 Miss. 520; Robertson v. Thomas, 118 Miss. 423; State v. Fragiacomo, 70 Miss. 799; State v. Piazza, 66 Miss. 426; State Revenue Agent v. Hill, 70 Miss. 106; Waits v. Black Bayou Drainage Dist., 186 Miss. 270; White v. Lowry, 162 Miss. 751; Whitney Natl. Bk. v. Stirling, 177 Miss. 326.
The power of the State Tax Collector to sue to collect the sales tax is excluded by the express language of the Sales Tax Act. Laws of 1930, Ch. 90.
The powers of the State Tax Collector to collect the sales tax was not enlarged by the Code of 1930, or subsequent statutes. 59 C.J. 894, 896; Code of 1930, Sec. 6986; Hemingway's Code of 1927, Secs. 9115, 9127; Henry v. State ex rel. Coody, 130 Miss. 855; Laws of 1926, Ch. 182; Laws of 1928, Ch. 193; Laws of 1930, Ch. 286, Sec. 2; Miller v. Coahoma County, 157 Miss. 404.
Argued orally by Pat Eager and E.L. Trenholm, for appellant, and by W.E. Gore and Forrest B. Jackson, for appellee.
The suit is brought by the appellee, Carl N. Craig, in his official capacity as State Tax Collector, on behalf of the State of Mississippi, in the Circuit Court of Hinds County, to collect from the appellant, Dunn Construction Company, a tax of 1% on the gross income received by it from the State Highway Commission, representing the contract price for certain road construction work, and which was paid to such contractor in installments of various amounts during the period from March 24, 1937, to July 14, 1938, inclusive, aggregating the sum of $54,032.39, the demand being for the 1% tax thereon, plus interest and 10% damages, alleged to have been levied by Section 2-e of Chapter 119, Laws of 1934, as amended, upon every person engaging or continuing within this state in the business of contracting, and for the privilege of engaging in such business.
It is alleged in the amended declaration that the amount due the state by the defendant and other contractors doing work for the State Highway Commission for tax on the gross income derived from the performance of their contracts prior to March 18, 1940, is in excess of $750,000; that on January 7, 1941, the plaintiff requested the Chairman of the State Tax Commission by letter of that date to make an assessment of the tax due by the defendant Dunn Construction Company; and that the Commissioner has declined to make such assessment or to collect any taxes due by the defendant, and by other contractors similarly situated, on the gross income received prior to the said 18th day of March, 1940, as requested. A copy of the letter to the Commissioner and of his reply thereto are made exhibits, and are asked to be considered as a part of the pleading.
It is further alleged that on January 11, 1941, the plaintiff requested the Attorney-General of the state, in his official capacity as such officer, to join with the plaintiff as a party litigant to enforce the collection of the taxes thus claimed to be due in this and other similar suits now pending. This request was also by letter, a copy of which is likewise made an exhibit, and from which it appears that the Attorney General was already advised of the reasons given by Mr. Stone, Chairman of the State Tax Commission, for declining to make the assessment or collect the tax in question, a copy of the Commissioner's reply to the Chief Attorney of the State Tax Collector being referred to in the letter to the Attorney-General as having been theretofore sent to the latter. This official also declined to intervene.
Section 2-h of the said Chapter 119, Laws of 1934, as amended, provides that: "In computing the amount of tax levied under this act, there shall be excepted from the gross income of the business, or gross proceeds of sales, as the case may be, so much thereof as is derived from sales to the United States government or the state of Mississippi, its departments and institutions, . . ." In view of this provision, found contained in the general "Sales Tax Law," Chapter 119, Laws of 1934, amending Chapters 90 and 91, Laws of 1932, it seems that prior to March 18, 1940, the departmental construction given the same by the State Tax Commission was that it exempted from the tax "the gross income of the business" as well as "gross proceeds of sales," when the income was derived from the federal or state government, its departments and institutions, whether for work done, or for sales made under such circumstances, the first part of the sentence above quoted from the statute being susceptible of such interpretation. The natural result of this departmental construction was that the contractors performing work under contracts with one of the departments of the state did not prior to the date aforesaid take into consideration this item of expense and add it to the contract price when bidding for the work, as they had of course done in regard to the cost of premiums on liability and performance bonds required in connection with the execution of these contracts. At any rate, it should be said for the Chairman of the State Tax Commission that after this court held on January 29, 1940, in the case of Compress of Union v. Stone, Chairman, 188 Miss. 49, 193 So. 329, citing as authority for its views the new trend of the most recent decisions of the Supreme Court of the United States as to the constitutionality of such a tax, that the provision of the statute in question had the effect of exempting from the tax only the gross income derived from sales to the United States Government, or to the State of Mississippi, and not the "gross income from the business," as it had been previously construed by the Commissioner, he proceeded to obtain a letter from the Attorney General thus interpreting this decision, and then issued a memorandum to all persons affected thereby, dated March 18, 1940, reading as follows: "Heretofore, it has been held that all income received from the United States Government and the State of Mississippi, its departments and institutions, was exempt. Now, as a result of the Supreme Court's decision and the opinion of the Attorney-General, persons liable for any taxes levied by the Sales Tax Law, except those selling tangible property, may no longer be permitted an exemption on account of income received from the United States Government and the State of Mississippi, its departments and institutions." Also, that he advised the State Tax Collector, when declining to make the back-assessment, that "It has been the consistent policy of this department, certainly since 1932, in the collection of taxes, not to give retroactive effect to new court decisions, or to new opinions of the Attorney-General, any more than to new laws. We have held that insofar as this office was concerned, we would regard such decisions and rulings precisely as we would regard new legislative enactments, and would proceed to collect taxes in conformity with such decisions and rulings, but with reference to future liability alone."
Whether the position above set forth is sound from a legal standpoint, or announces the correct policy that should have been pursued under the circumstances, is not for us to now decide. The precise and only question presented for decision on this appeal is whether the State Tax Collector has any right or authority under the law to file or maintain this suit, or whether such right, so far as he is concerned, is vested exclusively in the Chairman of the State Tax Commission. We have set forth the status of the amended pleadings for the reason that they allege the failure and refusal of the Tax Commission Chairman and Attorney-General to act in the premises, as an additional ground to that stated in the original declaration to entitle the plaintiff to sue; and we have done so as a premise for saying that neither the good faith of these officials in that behalf can defeat the right of the State Tax Collector to maintain the suit, if he is authorized by law to do so, nor can any lack of good faith — and none such is alleged — create such a right if the lawmaking body has in its wisdom seen fit to withhold the power.
The alleged right of the State Tax Collector to file and maintain the suit was challenged in the trial court by demurrer, and the same having been overruled the defendant declined to plead further, with the result that a final judgment was entered for the amount sued for.
The question presented to us is one of statutory construction. It therefore becomes important to review in a general way the history of the legislation dealing with the power of the State Tax Collector, and to say in passing that prior to the year 1924, the powers of his predecessor in office, the state revenue agent, to institute suits had been constantly enlarged through the years until finally there was a pronounced reversal of this policy, well known to everyone whether in sympathy with the action or not, and this change in the trend of legislation resulted in the abatement of certain pending suits, abolishment of that office and the creation of the office of State Tax Collector, Chapter 286, Laws of 1926, marked by a curtailment of powers, notable among which restrictions was the denial by that act of his right to sue to collect income and inheritance taxes, which was reaffirmed in Chapter 71, Laws of the Extraordinary Session of 1928, also revoking other powers assumed to have been theretofore granted. These statutes were brought forward in Chapter 168, Code of 1930, and Section 6986 thereof, defining the powers of the State Tax Collector, excluded also the right to sue for penalties for the violation of the anti-trust laws, it being provided therein, among other things, that: "He shall have 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, whether of the state, county, municipality, drainage, levee or other taxing district, or any sub-division thereof, and for all past due obligations and indebtedness of any character due and owing to them or any of them, except penalties for the violation of the anti-trust laws and except income and inheritance taxes." When these exceptions to his right to sue were first enacted, especially the one as to income and inheritance taxes, the administration of which had been placed under the jurisdiction of the Chairman of the State Tax Commission, a sales tax was wholly unknown as a part of the tax system of this state. It is significant to note, however, that the first time the legislature dealt with the powers of the State Tax Collector, as successor to the state revenue agent, after the income and inheritance laws were passed, it excluded the right of that official to sue for those taxes.
It is also important to trace the history of the "Sales Tax Law" itself, the first of which is Chapter 90, Laws of 1930, Section 16 of which provided that the administration of the law was vested in and should be exercised by the Tax Commission, except as otherwise therein provided, and that the enforcement of any of the provisions thereof in any of the courts of the state "shall be under the exclusive jurisdiction of the Tax Commission . . ." House Concurrent Resolution 65, appearing at page 161 of the Code of 1930, whereby the Code of 1930 was adopted, was construed by this court in the case of Hunt v. Hunt, 172 Miss. 732, 161 So. 119, to mean that the statutes passed at the 1930 session of the legislature should supercede any of the provisions of the Code adopted at that session, if in conflict therewith. But, aside from that judicial construction of the legislative intent and purpose, it is also true that where there is a special statute dealing particularly and specifically with a part of the subject matter embraced within a general statute, the special statute will ordinarily be regarded as an exception or qualification engrafted upon the general statute to the extent that the latter is in conflict or in apparent conflict with the former. White v. Lowry, Insurance Commissioner, 162 Miss. 751, 139 So. 874; Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Gully v. Lumbermen's Mutual Cas. Company, 176 Miss. 388, 166 So. 541, 168 So. 609.
Applying the above rule of construction, it would seem clear that the provision of Section 16, Chapter 90, Laws of 1930, supra, whereby the administration of the Sales Tax Law was vested in the Tax Commission and the enforcement of any of the provisions thereof in any of the courts of the state was required to be under its exclusive jurisdiction, would take precedence over the general statute, Section 6986 of the Code of 1930, supra, which defines the powers and limits the authority of the State Tax Collector to sue for past-due taxes. Most assuredly, a codifier of the statutes would not have hesitated to include the sales tax, along with income and inheritance taxes and penalties for the violation of the anti-trust laws, in the exception contained in Section 6986, supra, as to the right of the State Tax Collector to sue, if he had been codifying that statute subsequent to the passage of the Sales Tax Law embodied in said Chapter 90, Laws of 1930. Furthermore, the rule is well established that "where a statute creates a new right and also provides a remedy for its enforcement, it is ordinarily held that such remedy is exclusive." 1 C.J. 989. See, also, 1 C.J.S., Actions, section 6, page 974, where it is said: "Where a code or statute creates a new right or liability that did not exist at common law or under prior statutes, and also provides a specific remedy for the enforcement thereof, as a general rule such statutory remedy is exclusive, particularly when it is so denominated by the terms of the statute."
Much reliance is also placed by the State Tax Collector upon Section 3122 of the Code of 1930, which makes every lawful tax a debt recoverable by action, it being contended that this statute, when construed in connection with Section 6986 of said Code, grants unto him the power and makes it his duty to proceed by suit to collect the past-due and unpaid taxes here in question; but, it is to be observed that since Section 3122, supra, is a general statute, the same rule of construction hereinbefore stated is to be applied so as to give precedence to the special statute, Chapter 90, Laws of 1930, which also characterizes a past-due tax thereunder as a debt recoverable by action, and provides that the administration of the act and the enforcement of its provision in any of the courts of the state shall be under the exclusive jurisdiction of the Tax Commission. Moreover, the general statute, Section 3122, supra, upon which the State Tax Collector relies in part for his right to sue in this case, provides, by its express terms, that income and inheritance taxes are included among those made a debt recoverable by action, and they are then expressly excepted in Section 6986 of the Code, supra, defining the powers of the State Tax Collector to sue for past-due taxes. It will therefore be readily seen that the fact that the tax sued for in the case at bar is made a debt recoverable by action under the terms of the statutes by which it is imposed is not of itself determinative of the right of the State Tax Collector to sue.
The special statute above referred to, being the so-called "Sales Tax Act" of 1930, which became a law without the approval of the Governor, produced only about a quarter of a million dollars additional revenue per annum, according to matters of general information pertaining to the history of our present revenue system; and was wholly inadequate to solve the recurring financial problems of the state. To take care of a then existing deficit of several million dollars, it became necessary for the legislature of 1932 to lower the exemptions and increase the rates formerly provided for, and to either find something else to tax or devise various ways and means of taxing the same things. Thereupon, there was enacted Chapter 90, as amended by Chapter 91, Laws of 1932, known as the "Emergency Revenue Act of 1932," in order to bring economic order out of financial chaos. This legislation was able to weather the storm of a state-wide protest, as an emergency measure to expire on June 30, 1934, because it was recognized that something had to be done to meet outstanding and past-due obligations and save the credit of the state, even though such legislation was then considered to be objectionable in principle. Can it be doubted that the bringing forward of Section 16 of the former act so as to vest the administration of the proposed sales tax law in the Chairman of the State Tax Commission, which was theretofore vested in the Tax Commission as a whole, and giving to him the exclusive jurisdiction of the enforcement of any of its provisions in any of the courts of the state, was a most potent influence in inducing the legislature to enact this law? Or, can it be said that when the right was granted to the Commissioner, his agents and representatives, and to them alone, to examine, if need be, the books, records, and papers of the taxpayer so as to obtain the necessary data for the assessment of the tax, and for the enforcement of its collection in the courts, it was ever intended that the State Tax Collector, not clothed with such power or possessed of the information that such an examination would disclose, should be allowed to overrule the judgment of the Commissioner as to whether the assessment should be made or a suit brought against the taxpayer? To state it differently, would this law, which passed by an extremely narrow margin, and the success of which, as an experiment in revenue legislation, necessarily depended upon its administration in such a manner as to secure the cooperation of the taxpayer, ever have been enacted at all had not the responsibility for its enforcement been placed under the exclusive jurisdiction of the official charged with that duty? Chapter 168, Code of 1930, defining the powers of the State Tax Collector, and giving him the right only to investigate the books, accounts and vouchers of all fiscal officers and depositories of the state, and of every county, municipality and levee board and taxing districts of every kind, and to examine the records, minutes and allowances of the various boards of supervisors, mayor and aldermen of municipalities, drainage boards and all other boards in power to make allowances of public money under the laws of the state, was not amended so as to enlarge those powers when the Emergency Revenue Act of 1932 was passed; and great as was the need that all taxes then levied by the act should be collected, we find that nowhere in this Sales Tax Law of 1932, as amended by Chapter 119, Laws of 1934, and as further amended by Chapter 158, Laws of 1936, and Chapter 113, Laws of 1938, is there any provision giving to the State Tax Collector any power pertaining to an examination of the books, records and papers of the taxpayer, whether a firm, corporation or private individual, or imposing upon him any duty to perform as to the collection of any tax provided for by these statutes. It is manifest that the legislature, in withholding from the then State Tax Collector, and from his successors in office, operating on a commission basis, the power to examine the books, records and papers of the taxpayer for the purpose of ascertaining whether or not there might be some foundation for the institution of a contemplated suit to collect a sales tax, intended that he should have nothing to do with the collection thereof by suit or other wise, nor that he should be vested with any power to disturb the orderly processes of the State Tax Commission in its administration of the law for the assessment and collection of the taxes imposed by the Sales Tax Law.
But it is said, as we understand the position of the State Tax Collector, that it is not essential that he should have been given the right to examine the books, records and papers of the taxpayers, in advance of filing suit, in order that he might be able to enforce the provisions of the Sales Tax Act in the courts; that the taxpayer may have his hearing in the court when sued, citing the case of Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, involving the question of whether a taxpayer was entitled to notice and an opportunity to be heard at a meeting of the board of supervisors fixing the value of his property as a basis of taxation, and wherein the court held that when he is summoned to court by process personally served, he is permitted to be heard to rebut, if he can, the prima facie correctness of the assessment levied against him. While this method may be deemed the appropriate remedy for obtaining the facts in suits which the State Tax Collector is authorized by law to bring, it could not have been within the contemplation of the legislature so far as the administration of the Sales Tax Laws are concerned when it gave the Chairman of the State Tax Commission the authority to examine the books, records and papers of the taxpayer for the purpose of ascertaining in advance whether a tax is justly due and owing by him, before he is required to defend a lawsuit brought on behalf of the state to enforce its collection.
But in order to settle the matter of who should act in the premises, and to preclude the contention that some other officer could intervene, Section 16 of the Sales Tax Law of 1932 was enacted to read as follows:
"The administration of this Act is vested in and shall be exercised by the Chairman of the State Tax Commission, except as otherwise herein provided, and the enforcement of any of the provisions of this Act in any of the courts of the State shall be under the exclusive jurisdiction of the Chairman of the State Tax Commission who may require the assistance of and act through the prosecuting attorney of any county, or any district attorney, or any attorney for the Commission, and may with the assent of the Governor, employ special counsel in any county to aid the prosecuting attorney, the compensation of whom shall be fixed by and paid only upon the approval of the Governor; but the district attorney or prosecuting attorney of any county shall receive no fees or compensation for services rendered in enforcing this Act in addition to the salary paid to such officer. The Chairman of the State Tax Commission shall appoint, as needed, such agents, clerks and stenographers as authorized by law, who shall serve under him, shall perform such duties as may be required, not inconsistent with this Act, and are hereby authorized to act for the Commissioner as he may prescribe and as provided herein. Each such agent shall execute a bond in the sum of Five Thousand dollars ($5,000.00) for the faithful discharge of his duties. All of such agents, clerks and stenographers may be removed by the Chairman of the State Tax Commission for cause of which the Commissioner shall be final judge.
"In case of violation of the provisions of this Act the Commissioner may decline to prosecute for the first offense, if in his judgment such violation is not wilful or flagrant."
This section was amended by Chapter 91, Laws of 1932, so as to include the attorney for the Commission in the provisions of Section 16, and later by Chapter 119, Laws of 1934, as re-enacted by Chapter 158, Laws of 1936, and Chapter 113, Laws of 1938, so as to include the Attorney-General among those mentioned in said Section 16 upon whom the Chairman of the State Tax Commission might call for legal services in the enforcement of any of the provisions of the act in any of the courts of the state, as had been done by Section 10 of the Acts of 1932, which required that he represent the state in all litigation growing out of the provisions of the act, and so that Section 16 would provide as theretofore that these officials so called upon to render such legal services should receive no fees or compensation in addition to the salaries paid to such officers. In other words, it was the evident purpose of the legislature that these emergency taxes should go into the state treasury to meet the crisis then impending, and without any deductions of a 20% commission for the collection thereof. This determination on the part of the legislature, pervading as it does the entire act, is too prominent to be ignored, and in our opinion is too plain to admit of doubt. This Section 16 in the Sales Tax Law of 1932, as amended, is found enacted in its exact language as Section 17, Chapter 114, Laws of 1938; imposing a tax known as the "Use Tax," upon the privilege of using within this state any article of tangible personal property purchased at retail, produced or manufactured outside of the state. It will therefore be seen that the legislature has from time to time dealt with the requirement that "the enforcement of any of the provisions of this act in any of the courts of the state shall be under the exclusive jurisdiction of the chairman of the state tax commission," and if the language failed in the first instance to express the real legislative intent, then the lawmakers have been derelict in not changing and limiting the verbiage so as to express the meaning intended.
In view of the rule that in the interpretation of statutes, words in common use are to be construed in their natural, plain and ordinary signification, it is unnecessary that we cite previous court decisions or quote the definitions given by the lexicographers to show that the words "exclusive jurisdiction" precludes the idea of co-existence; or that in the ordinary speech of the people, it means possessed to the exclusion of others.
It is urged, however, that this section of the Sales Tax Law was intended to apply only to prosecutions in the criminal courts. But, it will be noted that the enforcement of any of the provisions of the act in any of the courts of the state (including courts of chancery where no criminal prosecutions are conducted) is placed under the exclusive jurisdiction of the Chairman of the State Tax Commission. Moreover, if the interpretation contended for by the State Tax Collector should be adopted, we would have the wholly superfluous provision that "the attorney general, district attorney or prosecuting attorney of any county shall receive no fees or compensation for services rendered in enforcing this act in addition to the salary paid to such officer," since we cannot ascribe to the legislature the thought that any of these officers would assume to charge extra compensation for their services in the prosecution of criminal cases for which they are paid an annual salary fixed by law.
Even though it be said that under the decision in Capitol Stages Co., Inc., et al. v. State ex rel. Hewitt, Dist. Atty., 157 Miss. 576, 128 So. 759, a district or county attorney cannot act to the exclusion of the Attorney-General, and of his own independent volition, in a matter of state-wide public interest, this would not defeat the exclusive jurisdiction of the Commissioner to enforce the provisions of the statute in question in any of the courts, acting through such officers within the proper spheres of their authority, respectively, in their territorial jurisdiction.
It is also contended that Section 11 of Chapter 119, Laws of 1934, as amended, gives the State Tax Collector the right to sue, because it provides that the tax due and unpaid under the provisions of the act shall constitute a debt due the state; that it shall constitute a lien upon the property of the taxpayer; that the same may be collected by an action in debt, or other appropriate judicial proceedings; and that these remedies are in addition to all other existing remedies. We deem it sufficient to say in answer to that contention that it is also true that the income tax law, Chapter 124, Code of 1930, makes the income tax a personal debt of the taxpayer, recoverable by an action brought by the Attorney General of the state, at the instance of the Commissioner, and makes the tax a lien upon his property, since the Commissioner is authorized to issue a warrant directed to the sheriff of any county of the state commanding him to levy upon and sell the real and personal property of the taxpayer for the payment of the same; and that it is also the duty of the Attorney-General under Section 3673, Code of 1930, as under Section 16 of the act in question, to institute or defend any suit arising out of any act or order of the Tax Commission affecting the laws and revenues of the state, he being clothed by such statute with all such authority as is conferred upon such officer at common law. Likewise, the inheritance tax law, Chapter 125 of the Code of 1930, makes an executor, administrator, and others whose duty it is to pay inheritance taxes, liable for the tax imposed, recoverable by action brought by the Attorney-General of the state, any district attorney or county attorney, at the instance of the Commissioner, and makes the tax a lien for three years upon the gross estate of the decedent. Nevertheless, these income and inheritance taxes are expressly excluded, as hereinbefore shown, from the right of the State Tax Collector to sue. How then can it be said that these features of the Sales Tax Law indicate an intention of the legislature to grant unto the State Tax Collector the right to sue when it is seen that they appear in other statutes imposing taxes, and for the collection of which he is denied the right to sue?
As to the provision contained in said Section 11 of said Chapter 119, Laws of 1934, as amended, to the effect that the remedies for the collection of the tax "shall be in addition to all other existing remedies," we are of the opinion that the other existing remedies referred to are those contained in Chapter 90 of the Laws of 1932, whereby the Commissioner was given authority to issue a warrant under certain circumstances directing the sheriff to enforce the collection of the sales tax therein provided for, etc.
Then, it is said that Section 14 of said Chapter 119, Laws of 1934, supra, discloses an intention on the part of the legislature to permit the State Tax Collector to bring a suit for the enforcement of the provisions of the act for the reason that it prevents the members of the State Tax Commission, its agents, clerks or stenographers, from divulging the gross income, gross proceeds of sales, or the amount of tax paid by any person, except to members and employees of the State Tax Commission and the income tax department thereof for the purpose of checking, comparing and correcting returns, or to the Governor or to the Attorney General, or any other legal representative of the state in any action in respect to the amount of tax due under the provisions of the act, it being contended that the words "or any other legal representative of the state" can have reference to no other person than the State Tax Collector. In determining what is meant by the reference above quoted, it must be kept in mind that the statute elsewhere provides that the Chairman of the State Tax Commission may require the assistance of and act through not only the Attorney General, but the prosecuting attorney of any county, or any district attorney, or any attorney for the Commission, or any special counsel employed by the Commissioner with the assent of the Governor, and that the attorneys above mentioned are the only legal representatives mentioned in the act through which the Commissioner is authorized to proceed to enforce the provisions of the act in any of the courts of the state. Moreover, the clause "or other legal representatives" is found immediately following the words "attorney general," in both the income and inheritance tax statutes, Chapters 124 and 125 of the Code, respectively, requiring the same secrecy above referred to, and which prohibit the divulging of information obtained by the Commission, except that the same is to be subject to the inspection of the Attorney-General "or other legal representatives of the state," and most assuredly the State Tax Collector is not the "other legal representative of the state" referred to in the income and inheritance laws, since he has no duties to perform or powers to exercise in regard thereto.
Finally, it is urged in support of the State Tax Collector's alleged right to sue that the sales tax statutes should not be so construed as to leave it to the will and discretion of one man — the Chairman of the State Tax Commission — as to whether or not a tax levied thereunder shall be collected; that the granting of such power could never have been intended by the legislature. The same argument may be applied, however, to the enforcement of the income and inheritance tax laws, involving as they do large sums of revenue due to the state each year, and yet the legislature has expressly declared by repeated statutory enactments that these taxes are excepted from those for which the State Tax Collector may sue as hereinbefore shown. Moreover, the administration of most all of the other new forms of taxes that have been imposed during recent years has been placed under his jurisdiction, until the collections made by the Tax Commission for the fiscal year ending June 30, 1940, reached the sum of approximately $13,300,000 according to a published official statement from the State Auditor's office appearing in the public press of a few days ago, and which may suggest that very likely the legislature may not have acted unwisely in placing the responsibility of the enforcement of these laws under the exclusive jurisdiction of the chairman of that department.
Responding further to the contention that the legislature could never have intended for the state to have been left without a remedy in the event the Chairman of the State Tax Commission should arbitrarily refuse to assess and collect any tax due under the Sales Tax Laws, or for any other reason failed to do so, it may be observed that the Attorney-General would have the right to bring a suit to enforce the payment of the tax in question, if in his judgment the public interest should so require, since he is a constitutional officer possessed of all the power and authority vested in such an official at common law, and, in addition, such as have been conferred on him by statute, including the right "to institute, conduct, and maintain all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of the public rights." Capitol Stages Co., Inc., v. State ex rel., supra [ 157 Miss. 576, 128 So. 763], and 2 R.C.L., Secs. 4 and 5, Pages 915-17. This right is not confined to the enforcement of the criminal laws, but applies also to all matters of state-wide public interest in any of the courts of the state. As to whether the legislature could, within constitutional bounds, vest in the Chairman of the State Tax Commission the exclusive jurisdiction in regard to the enforcement of any of the provisions of the Sales Tax Laws in any of the courts of the state to the exclusion of the Attorney General is not here involved, and it is therefore unnecessary that we decide that question in this case. Suffice it to say, it did have the authority to vest such jurisdiction in the Chairman of the State Tax Commission to the exclusion of any other official authorized by law to bring suits to collect past-due and unpaid taxes whose authority is derived solely from statutory enactment, as distinguished from that conferred by the Constitution itself.
On account of the fact that the precise question here involved is presented to the court for the first time by this appeal, we have endeavored to give the case that consideration which we think its importance demands; and we are clearly of the opinion that the demurrer to the amended declaration of the State Tax Collector should have been sustained and the suit dismissed.
Reversed, and judgment here for the appellant.
ON SUGGESTION OF ERROR.
I concur in overruling this suggestion of error. The sole question in the case is whether or not Section 16, Chapter 113, Laws of 1938, withdraws from the appellee the right to bring this suit. Whether it also withdraws such right from the Attorney-General is not before the court, and any opinion expressed thereon is mere dictum not binding on any one. A conflict appears in the decisions of this Court as to the right of the legislature, under Section 103 of the Constitution, to define the powers of the Attorney-General so as to deprive him of any power he might have at common law, which conflict can be resolved only in a case where this right vel non of the legislature is necessarily involved. I, therefore, express no opinion of the effect of this statute on the right of the Attorney General to institute legal proceedings authorized by it.
SPECIALLY CONCURRING OPINION.
I concur in the majority opinion dismissing this suit but upon a different ground from that stated therein. Under the Constitution the legislature was without power to confer on any officer of the state other than the Attorney-General the exclusive authority to bring this character of suit on behalf of the state. Perhaps the legislature could confer such power on another officer to be exercised in conjunction with and under the supervision and control of the Attorney-General.
The office of Attorney-General is a constitutional office in this state. Section 173 is in this language: "There shall be an attorney-general elected at the same time and in the same manner as the governor is elected, whose term of office shall be four years and whose compensation shall be fixed by law. The qualifications for the attorney-general shall be the same as herein prescribed for judges of the circuit and chancery courts."
It will be observed that the Constitution prescribed the qualifications of the Attorney General but not his duties and powers. The office of Attorney-General was a common-law office. The creation of the office therefore by the Constitution without prescribing his powers, by implication adopted his common-law powers, none of which can be taken away from him by the legislature. State v. Key, 93 Miss. 115, 46 So. 75; Capitol Stages, Inc. v. State ex rel. Hewitt, Dist. Atty., 157 Miss. 576, 128 So. 759, 763. The latter was a suit by a district attorney on behalf of the state involving a matter of state-wide interest. It was an action on behalf of the general public therefore. The statute authorized the district attorney to bring the suit. The court held that the Attorney-General alone had the right to bring the suit under the common-law powers which were conferred along with the adoption of Section 173 of the Constitution, and therefore the statute authorizing the district attorney to bring it was unconstitutional. The court in its opinion quoted with approval the following from 2 R.C.L., Secs. 4 and 5, pages 915-917: "`At common law the duties of the Attorney-General, as chief law officer of the realm were very numerous and varied. He was the chief legal adviser of the crown, and was entrusted with the management of all legal affairs, and the prosecution of all suits, civil and criminal, in which the crown was interested.' He had authority to institute proceedings to abate public nuisances affecting and endangering public safety and convenience; he had the power to control and manage all litigation on behalf of the state; he could intervene in all actions which were of concern to the general public, including the right to institute, conduct, and maintain all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of the public rights."
Undoubtedly a suit of this character involves a matter of state-wide interest. It is an action on behalf of all the public. It is therefore one which the attorney general alone has the right to control. It may be that under the Constitution the legislature would have the power to confer the right upon some other state officer with the consent and under the supervision and control of the Attorney-General. The exclusive right, however, could not be conferred elsewhere.
However, these principles of constitutional law have no application to public suits where only local interests are involved, as distinguished from state-wide interests. The power to bring such suits may be and has been to a large extent, conferred on district attorneys and county attorneys, and might be extended by legislative act to other officers. The common-law powers of the Attorney-General did not include such suits. This is not true, however, as to suits of this character involving state-wide interest. All such suits under the Constitution must be brought either by the Attorney General or by some officer in conjunction with him, and under his supervision and control; and this of course includes both the State Tax Collector and the Chairman of the State Tax Commission. The result would be (and it appears that such a result is very desirable) that there would be a constitutional governing state officer in control of all such litigation. That would be the end of conflicting authority with reference to the subject.