Opinion
No. 28812.
February 23, 1931.
1. STATUTES.
Where construction of statute was doubtful, substantial re-enactment constitutes acceptance of uniform executive and administrative construction.
2. LEVEES and FLOOD CONTROL.
Levee taxes assessed on mileage basis against railroad within levee district held in lieu of all other levee taxes, including uniform ad valorem tax against property (Laws 1878, c. 117, section 5; Laws 1886, c. 7; Laws 1908, c. 125; Laws 1914, c. 282).
APPEAL from circuit court of Hinds county, First district; HON. W.H. POTTER, Judge.
P.C. Canizaro, of Vicksburg, and Franklin, Easterling Rosenthal, of Jackson, for appellant.
The act of November 27, 1865, section 4, levies and assesses "a uniform tax of ten cents per annum on each and every acre of land in said counties."
Section 3, Laws of 1872, gives the Board of Levee Commissioners power and authority to levy and assess a uniform ad valorem tax upon the value of each and every acre of land lying and being situated in said counties.
Section 5 of the Acts of 1878, which is an amendment to the Act of November, 1865, also the Act of 1877, vests in the Board of Levee Commissioners the power to levy and assess a uniform ad valorem tax of not more than five mills upon the assessed value of property, both real and personal, lying and situated in the counties of Bolivar, Washington, Issaquena and Sharkey, as the same shall appear upon the assessment rolls of said counties respectively, for the years in which such levy and assessment may be made.
On March 12, 1886, the legislature for the first time enacted a law levying a tax upon each and every mile of the main or trunk line of all broad or standard gauge railroad not including side tracks or switches in the sum of one hundred dollars per annum in the levee district.
The first amendment to the mileage tax on railroads of 1886 is by the Act of 1908, which places upon each and every mile of main or trunk lines of all broad or standard gauge railroads, not including side tracks or switches, the sum of two hundred dollars per annum.
Chapter 282 of the Law of March, 1914, is an act to amend chapter 125 of the Acts of 1908.
When the Law of 1908 repealed the mileage tax of 1886, and along with that omitted the proviso of section 2 "that the mileage tax shall be in full of all levee taxes," it thereby repealed the exemption, and automatically rendered railroad property in the levee district subject to ad valorem tax imposed by the Laws of 1878, 1892 and 1896.
State v. Order of Elks, 29 Miss. 895, 13 So. 255; Nation v. Lovejoy, 80 Miss. 401, 31 So. 811; Clay Co. v. Chickasaw County, 1 So. 752; 37 Cyc. 900; Adams v. Yazoo, etc. R.R. Co., 77 Miss. 194, 24 So. 200, 317, 28 So. 956, 60 L.R.A. 33.
The fact that no effort had been made to collect the taxes heretofore does not in any manner relieve the railroad companies from the payment of the taxes.
Wells v. Mayor and Aldermen of the City of Savannah, 45 L.Ed. 986.
Exemption from taxation is not presumed, and it is the duty of the court to resolve any doubt in favor of the taxing power.
Adams v. Y. M.V.R.R. Co., 77 Miss. 194, 24 So. 201; Y. M.V.R.R. Co. v. Adams, 26 So. 956; Barnes v. Jones, 103 So. 773, 139 Miss. 675; Gulfport Building Loan Association v. City of Gulfport, 124 So. 658.
An exemption from taxation may be lost or forfeited by an express waiver or renunciation of it, by the acceptance of a subsequent legislative act imposing taxes or changing the rate or mode of taxation, by the sale or other disposition of the exempt property, by a change in the organization or business of a corporation, taking it out of the exempted class, by the act of the party in returning the property to the assessors as taxable, or by the uncomplaining payment of taxes on it for a number of years, and according to some of the authorities, by the mere neglect to assert and claim the exemption before taxing officers.
37 Cyc. 904.
After the exception was taken out of the Laws of 1892 and 1896, to-wit the words "and the taxes levied and assessed by this act shall be in full of all levee taxes," the general law imposing the ad valorem levy became general without exception. It covered the assessed value of all property, real and personal within the bounds of the levee district.
Clay County v. Chickasaw County, 1 So. 752; State v. Order of Elks, 13 So. 255; Nation v. Lovejoy, 80 Miss. 401, 31 So. 811.
A statute which is plain and unambiguous must be given full effect and the court may not add anything to it or take anything from it; nor can it determine the wisdom of the statute, but it must merely enforce it as written.
5 Miss. Digest, 718; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Abbott v. State, 106 Miss. 340, 63 So. 667; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Prather v. Googe, 108 Miss. 670, 67 So. 157.
The general rule is that when any statute is revised or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. Where a statute is evidently intended to revise the whole subject treated in a former statute therefor, it repeals such former statute, and, though there may be a plain casus omissus, the courts cannot supply it.
County of Clay v. County of Chickasaw, 1 So. 735, 64 Miss. 534; Abbott v. State, 106 Miss. 340, 63 So. 667; Ascher v. Moyse Co., 101 Miss. 36, 57 So. 299; Swift Co. v. Sones, 142 Miss. 660, 107 So. 881; State v. Wyoming Manf. Co., 138 Miss. 249, 103 So. 11.
The court cannot restrict or enlarge the meaning of an unambiguous statute.
City of Hazelhurst v. Mayes, 51 So. 890, 96 Miss. 656; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521.
The ultimate duty and responsibility of construction is upon the court, and departmental interpretation cannot well be resorted to where the language of the statute is plain. Before we are justified in accepting departmental construction the law under consideration must be doubtful, or uncertain.
State ex rel. Collins v. Grenada Compress Company, 85 So. 137.
R.C. Beckett, of Chicago, Ill., May, Sanders, McLaurin Byrd, of Jackson, Chas. N. Burch and H.D. Minor, both of Memphis, Tenn., and R.V. Fletcher, of Chicago, Ill., for appellee.
In case of doubt as to the meaning of a statute it is well settled that the courts may resort to contemporaneous construction, and it has been said that the best construction of a statute is that which it has received from contemporary authority.
25 R.C.L. page 1042, section 273.
It is a well settled rule that the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed while not controlling, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous. The weight to be given to executive or departmental practice is increased when the legislature, in re-enacting the law or another law in pari materia, fails to indicate in any way its disapproval of the settled construction of the officer or department, or where an implied approval of such construction may otherwise be deduced from subsequent legislation, or failure to alter the practice of legislation.
25 R.C.L. page 1043, section 274; Robertson v. Texas Oil Co., 141 Miss. 356, 366, 106 So. 499; Lewis Sutherland on Statutory Construction, sections 447-448; U.S. v. Hermanos, 209 U.S. 337, 339; U.S. v. Falk, 204 U.S. 143, 152.
When a statute is re-enacted or the subject has come up for legislative consideration after the statute has received an administrative or judicial construction it is presumed that such construction was embraced in the law and approved by the legislature.
25 R.C.L. 1076; Davis v. Holberg, 59 Miss. 362; Shotwell v. Covington, 69 Miss. 735, 12 So. 260; Wetherbee v. Root, 72 Miss. 355, 16 So. 902.
Legislative policy clearly deducible from the consistent legislation of Congress or a state legislature is a legitimate factor in determining the meaning of subsequent acts open to construction, and such policy is not to be regarded as abandoned further than the terms and objects of the new legislation unmistakeably require.
Murdock v. Memphis, 20 Wall, 590, 22 L.Ed. 429; Venable v. Richards, 105 U.S. 638, 26 L.Ed. 1196; United States v. Healey, 160 U.S. 136, 40 L.Ed. 369; Coulter v. Robertson, 24 Miss. 278.
The Mississippi levee district was created on November 27, 1865, at which time there was no railroad within its territory. The railroad, of which appellee is the successor in title, was constructed therein during the year 1885. At that time the manner of taxation for levee purposes, in so far as ad valorem taxes were concerned, was as provided in section 5, chapter 117, Laws 1878, which provision made an ad valorem levy as follows: "A uniform ad valorem tax of not more than five mills upon the assessed value of all property, real and personal, lying and situated in the counties" (naming them) "as the same shall appear upon the assessment rolls of said counties respectively."
In the year following the construction of the railroad, the Legislature enacter chapter 7, Laws 1886, under which the mileage method of taxation was adopted for said levee district in respect to railroads. A tax of one hundred dollars per mile upon railroads was thereby levied, and it was expressly provided that this tax should as to railroads be in full of all levee taxes.
Although in succeeding years the levee laws went through the process of numerous amendments, there is no question but that throughout all of these changes the railroad levee tax in this district remained exclusively on the mileage basis, until the passage of chapter 125, Laws 1908, when the Act of 1886 was amended so as to raise the levee mileage taxes to the sum of two hundred dollars per mile. In this Act of 1908 there was omitted that express provision which had for twenty-two years theretofore been in all these acts; that is to say, the provision that the mileage tax should be in full of all levee taxes. The Act of 1908 was simply silent on that point. Nevertheless, the levee board and all the administrative and executive officers charged with any duty in respect to the revenues of the district construed the Act of 1908 as having made no change in the law as regards the effect that the mileage tax of two hundred dollars per mile was in full of all railroad levee taxes; and taxes were collected from the railroad exclusively on that basis. Six years thereafter and by chapter 282, Laws 1914, the law was again amended, using the identical terms of the Act of 1908, except that the mileage tax was raised to three hundred fifty dollars per mile. This is the last legislation material to the question before us. The railroad has continued to this day to pay its levee taxes on the mileage basis, and this suit is by the state tax collector to recover, in addition, the general ad valorem tax on the assessed valuation of the railroad as assessed by the state tax commission.
Although the foregoing history of the legislation on this subject is but a thumb-nail sketch, enough is shown to disclose that from the beginning of the existence of railroads in the district the mileage basis has been the original and the uniformly observed method of railroad taxation for levee purposes in that particular district. Beginning with the first railroad levee act in 1886 down to this date, the subject of railroad levee taxes in that district has been separately treated in separate acts, and always as to general ad valorem taxes the provision has been that these taxes shall be upon the property real and personal "as the same shall appear upon the assessment rolls of said counties respectively."
It appears to us, therefore, as a question which admits of some considerable doubt in the matter of statutory construction whether these statutes, all of them taken together, even after 1908, do not of themselves confine railroad levee taxation in this particular district solely to the mileage basis. In this situation of admissible doubt the construction uniformly placed upon the statute of 1908, and uniformly followed by every executive and administrative officer charged with its execution and administration, must now be accepted as the correct construction, in view of the fact that in 1914, six years thereafter, the statute was re-enacted in exactly similar language. U.S. v. Cerecedo, etc., 209 U.S. 337, 339, 28 S.Ct. 532, 52 L.Ed. 821; U.S. v. G. Falk Bros., 204 U.S. 143, 27 S.Ct. 191, 51 L.Ed. 411.
The principle that the re-enactment by the Legislature, without change, of a statute, not free from doubt, which had previously received long-continued executive and administrative construction, is an adoption by the Legislature of that construction, has an added strength as applied to this case; because under section 234, Const. 1890, no bill affecting the revenues of the levee district can be considered by the Legislature until it has been published in a newspaper in the district for four weeks prior to the introduction thereof in the Legislature. Therefore, when the bill in 1914 was introduced, it had been previously published to all the people of the district; and it could be easily seen that it was in the same language as the Act of 1908 under which it was known, or could have been known, to every taxpayer in the district that the uniform and unquestioned previous construction for the past six years — long enough to give everybody notice and knowledge — had been that the mileage tax was the only railroad levee tax. If then there was any purpose either in the Legislature or on the part of taxpayers to change the meaning and effect under the Act of 1914 so as to include the general property ad valorem taxes in addition to the mileage tax, then was the time to do it, and in express language. But this was not done, has never since been done, and we deem the issue as now foreclosed.
Affirmed.