Opinion
No. 38962.
October 26, 1953.
See headnotes, General Contract Corp., et al. v. Mrs. Thomas L. Bailey, State Tax Collector, No. 39049, ante.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
John G. Burkett, Pyles Tucker, Jackson, for appellant.
I. The Statutes involved. Secs. 9341, 9344, 9696-132, 9696-135, 9696-209, 9696-231, 9696-235, Code 1942, Volume Seven, Recompiled. See Miss. Tax Comm. v. Brown, 188 Miss. 483, 195 So. 465, 127 A.L.R. 919.
II. Where two or more valid statutes are in apparent conflict, the courts will so construe them if possible so that all may stand and be operative. Asher v. Moyse, 101 Miss. 36, 56 So. 299; Commercial Bank of Natchez v. Chambers, 8 S. M. 9; Eskridge v. McGruder, 45 Miss. 294; Ex parte McInnis, 54 So. 260; Gilmore Puckett Gro. Co. v. Wells, 103 Miss. 468, 60 So. 580; Hearn v. Brogan, 64 Miss. 334, 1 So. 246; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; McAftee v. Sou. R.R. Co., 36 So. 669; Pons v. State, 49 Miss. 1; Richardson v. Patterson, 30 Miss. 583; Smith v. Vicksburg, 54 Miss. 615; Sou. R.R. Co. v. Jackson, 38 Miss. 334; White v. Johnson, 23 Miss. 68; Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; 59 C.J. 918.
III. If, however, both statutes cannot be so construed so as to stand and be operative, then the last one passed must prevail over the former one. Craig, et al. v. Dun Bradstreet, Inc., 202 Miss. 207.
IV. In construing statutes of doubtful meaning the courts' chief desire is to reach the real intention of the legislature and adopt that interpretation which meets the real meaning. American Life Accident Ins. Co. v. Nirdlinger, 113 Miss. 74, 73 So. 875; Board v. Stanley, 205 Miss. 723, 29 So.2d 317, 319; Craig, et al. v. Dun Bradstreet, Inc., supra; Dunn v. Clingham, 93 Miss. 310, 47 So. 503; Gambrill v. Gulf States Creosoting Co., (Miss.), 62 So.2d 775; Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844, and 130 Miss. 686, 94 So. 842, 27 A.L.R. 1043; Hendrix v. Foote, et al., 205 Miss. 41, 38 So.2d 111; Marquette Cement Mfg. Co., et al. v. Fidelity Deposit Co. of Maryland, 173 Miss. 164, 158 So. 924; People v. Salter, 182 N.Y.A. 252, 191 App. Div. 732 (reh. denied, 182 N.Y.S. 799, 192 App. Div. 435); Service Investment Co. v. Dorst, 232 Wis. 574, 288 N.W. 169, 134 A.L.R. 539; Smith v. Perkins, 112 Miss. 870, 73 So. 797; Stone v. Seale Lilly Ice Cream Co., (Miss.), 52 So.2d 486; Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768 and 770; 50 Am. Jur., pp. 258, 259, Sec. 438, p. 459; 59 C.J. 984.
V. It is the policy of the courts and legislative bodies of the state to discourage the lending of money at usurious and unlawful rates of interest. Jones, et al. v. Lamensdorf, et al., 175 Miss. 566; Kennedy v. Porter, 176 Miss. 742, 170 So. 286; Sheffield v. Reece, 201 Miss. 133, 28 So.2d 745; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 95; St. Louis Poster Adv. Co. v. St. Louis, 249 U.S. 269, 63 L.Ed. 599; State Highway Comm. v. Coahoma County, 203 Miss. 629, 651, 32 So.2d 555; Williams v. Fears, 179 U.S. 270, 45 L.Ed. 186; Wood, et al. v. Essary, et al., 177 Miss. 134, 170 So. 543; Zeigler v. Zeigler, supra.
VI. In the alternative the appellee did not prove that it had paid any taxes under Chapter 110, Laws of 1940. Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Furr, et al. v. Brookhaven Creamery Co., 188 Miss. 1, 191 So. 684.
Wright, Overstreet Kuykendall, Jackson, for appellee.
I. The Local Privilege Tax Act relied on by appellant contains a complete exemption for those paying a state-wide privilege tax. Bailey v. Emmich Bros., 204 Miss. 666, 37 So.2d 797; Craig v. Dun Bradstreet, Inc., 202 Miss. 207; 30 So.2d 798; Sec. 9696-135, Supp. Sec. 9696-235, Title 38, Code 1942; Sec. 227, Chap. 137, Chap. 138, Laws 1944.
II. The payment of the state-wide privilege tax on finance companies is in lieu of all other privilege taxes. Secs. 9341, 9344, Code 1942, as amended.
III. The "in lieu of" section of Finance Company Act was not repealed by Local Privilege Tax Act of 1944. Sec. 230, Chap. 137, Sec. 69, Chap. 138, Laws 1944; 50 Am. Jur., Statutes, Secs. 213, 468, pp. 192, 481, 482; 59 C.J., Statutes, Sec. 647, pp. 1096, 1097, Footnotes 28(a) and 28(b).
IV. Chapter 110, Laws of 1940 is not in conflict with Chapter 138, Laws of 1944. Sec. 5586, Code 1942; Sec. 205, Chapter 137, Laws 1944.
V. Section 9696-209 of the Mississippi Code of 1942 Amended (Section 205, Chapter 137, Laws of 1944) does not require the imposition of both taxes. Marquette Cement Mfg. Co., et al. v. Fidelity Deposit Co. of Maryland, 173 Miss. 164, 158 So. 924; Sec. 9696-209, Sec. 9344, Code 1942, as amended; Secs. 227, 231, Chap. 137, Laws 1944.
VI. The tax paid by appellee under the Finance Company Act is a tax for state-wide purposes within the exemption set forth in Section 227, Chapter 137, Laws of 1944. Craig, State Tax Collector v. Walker, et al., 191 Miss. 424, 2 So.2d 806; Secs. 9344, 9694, Code 1942; Sec. 231, Chap. 137, Laws 1944; Chap. 541, Laws 1950; 50 Am. Jur., Statutes, Secs. 213, 468; 59 C.J., Statutes, Sec. 646.
VII. The appellant is in error as to the intention of the Legislature.
VIII. Appellant's argument that appellee has failed to prove the state-wide tax is without merit. Chap. 230, Laws 1948.
Appellee paid the privilege tax for lending money secured by liens upon personal property as required by Section 9341, Miss. Code 1942, Recompiled. This proceeding was instituted by the State Tax Collector to collect from appellee a privilege tax on behalf of the municipalities of Jackson, Gulfport and Meridian under Section 9696-135 of the same Code. Appellee, by plea, set up as one defense that the tax which it had paid was for state-wide privilege, which prevented imposition of the local tax under 9696-135. Appellee also denied that it had loaned money at a greater rate of interest than 15 per cent per annum. The learned trial judge sustained the first contention, and left open and undecided the question of fact whether interest had been charged at a greater rate than 15 per cent per annum. From the judgment of the circuit court the Tax Collector appeals.
The case of General Contract Corporation, et al. v. Mrs. Thomas L. Bailey, State Tax Collector, No. 39,049, this day handed down, has decided the question against the contention of appellee.
Reversed and remanded.
All Justices concur except Hall, J., who took no part in the decision of this case.
ON SUGGESTION OF ERROR
December 14, 1953 46 Adv. S. 1 68 So.2d 476
In undertaking to re-argue its contention that the court below properly sustained its plea in bar setting up that it had paid the state-wide finance company tax (Secs. 9341-9346, Code of 1942) in lieu of any tax under Section 132, Chapter 137, Laws of 1944 (Sec. 9696-135, Code of 1942), appellee states that we erred in assuming that the question was foreclosed by General Contract Corporation v. Bailey, State Tax Collector, Miss., 67 So.2d 485. We recognized in that case that the facts were such that the decision of the inapplicability of Section 9344 as a defense might have been placed on other grounds than the consideration and interpretation of the various statutes involved. But we preferred to plant the decision directly on that ground, because we had fully considered the basic legal proposition in the conferences on that case and on the instant case, and both opinions were being rendered on the same day. We are satisfied that we were correct in holding that the finance company tax does not include the privilege of lending money at a greater rate of interest than fifteen per cent, and therefore is not in lieu of the tax imposed by Section 9696-135, Code of 1942.
Appellee also brings into the suggestion of error Section 5586, Code of 1942, and raises various questions of the possible conflict of that statute (taxing the lending of money at a rate greater than twenty per cent) and Section 9696-135 (taxing such lending at a rate greater than fifteen per cent). Those questions are not before us on this record, and we will pass on them if and when hereafter presented. However, we comment that appellee seems to assume that Section 5586 imposes a state-wide tax, rather than a local or state tax, which may be an erroneous assumption. Under the privilege tax code in effect prior to 1944 the distinction between "state" privilege taxes and "state-wide" privilege taxes was well defined (Sec. 9427, Code of 1942, original Vol. 7); and Section 5586 provides a tax payable "to the state," almost identical in terms with the state tax formerly imposed by Section 9574, Code of 1942 (original Vol. 7), which is now superseded by Section 9696-135.
Suggestion of error overruled.
All Justices concur.