Robertson v. Greenwood Lumber Co. , 118 Miss. 769 ( 1918 )

Ethridge, J.,

delivered the opinion of the court.

The state revenue agent filed suit in the circuit court against the Greenwood Lumber Company under three separate counts; the first count declaring for the privilege tax of one hundred dollars per year for the years beginning the 1st day of May, 1915, and the 1st day of May, 1916, due to the state for the privilege of carrying on a business of lumber yard and dealer in lumber. It also declared for damages for failure to pay the privilege tax as required by law. The second count of the declaration was for levee taxes for the same period of time against the same defendant due the Yazoo and Mississippi levee district, and for damages of ten per cent, for failure to procure the levee district privilege license. ■ The third count of the declaration declared against the defendant for privilege taxes due the city of Greenwood for the same period of time, it being declared that the privilege tax of the city was levied and assessed upon the same business by the proper and lawful authorities of the municipality, being a tax for the sum of fifty dollars for each of said years, and for damages for failure to procure such license. It was further alleged that during the years beginning the 1st day of May, 1911, and each consecutive current year beginning on the 1st day of May thereafter to the 1st day of May, 1915, the lumber yard business conducted and carried on in the city of Greenwood, Leflore county, Miss., by this present defendant, was conducted and carried on by the Alexander Lumber Company, a domestic corporation of the state, domiciled at Green-ville, Miss., and that the business 'conducted and carried on was the same during all these years, but was merely transferred by the Alexander Lumber Company to the Greenwood Lumber Company on the - day of —, 1914, and that during each of the years from May 1, 1911, to May 1, 1915, the annual sales of lumber exceeded one-half million feet while the Alexander Lumber Company was conducting and carrying on such business, and that the privilege taxes for each of said years were lawfully levied for the state, one hundred dollars per annum, and that the business became indebted to the’ state for said taxes and annually during said years, and that it was the duty of the business so carried on to pay said taxes and to procure from the state a licence to carry on said business, and, said lumber company having failed and defaulted in payments at or before its transfer to the Greenwood Lumber Company in the year 1914, that the said lumber' business became and was liable and it was and became the duty of the GreenAvood Lumber Company to pay the taxes for the years 1Í911 to 1914 above set forth, but that neither of said companies paid said taxes or procured said licenses but wholly defaulted therein, and by reason thereof said business became liable to the state for double the amount of said taxes for each of said years, and judgment was demanded of the Greenwood Lumber Company for that amount, and a like count was declared on the levee district for said years 1911 and 1915, and also a like count for the municipality of Greenwood for said years for privilege taxes of fifty dollars for taxes and damages for each of said years. The Alexander Lumber Company was not made a party defendant in said declaration.

The defendant demurred to this declaration: First, because there was a misjoinder of several separate and distinct causes of action. Second, that plaintiff sued in its own name. Third, that the. tax collector of Leflore county was not joined as a party to the suit, and that the amended declaration embraced separate and distinct causes of action which were not embraced in the original declaration, and that the amended declaration seeking to recover privilege taxes, damages, and penalties alléged to have been due for the years 1911 to 1914, inclusive, during which time the Alexander Lumber Company was operating as owner and the business of which was alleged to have been transferred to the Greenwood Lumber Company, was because these two counts each embraced separate and distinct causes of action not embraced in the original declaration; second, because the Greenwood Lumber Company could not be held liable for any privilege tax, damages, or penalties which became due for any period or for any time prior to the time when said business was 'transferred to the Greenwood Lumber Company by the Alexander Lumber Company, and because the Alexander Lumber Company is not joined as defendant.

The court below sustained the demurrer, allowed plaintiff thirty days in which to amend and adjudged that on failure of the plaintiff to amend in thirty days from date of judgment that his declaration would be dismissed, the plaintiff failed to amend his declaration and prosecutes this appeal from the dismissal of said cause.

The first question presented by the demurrer is whether or not the state revenue agent could bring these suits on behalf of the state of Mississippi, and the Ya-zoo and Mississippi levee district, and the city of Greenwood in one suit, or whether there would have to be separate suits filed against the defendant for each, the state of Mississippi, the Yazoo and Mississippi levee district, and the city of Greenwood.

Section 4743, Code of 1906, section 7061, Hemingway’s Code, provides that the suits by the state revenue agent shall be in his own name for the use of the state, county, municipality, or levee board interested, and he shall not be liable for costs, and may appeal without bond, and that such suits may be tried at the return term and shall take precedence of other suits.

Under section 4738, Code of 1906, section 7056, Hemingway’s Code, the state revenue agent is given the power, and it is made his duty, to proceed by suit in the proper court against all officers, county contractors, persons, corporations, companies, and associations of persons for' all past-due and unpaid taxes of any kind whatever, or all penalties or forfeitures for all past-due obligations and indebtedness of any character whatever owing to the state, or any county, municipality, or levee board, and for damages growing out of the violation of any contract with the state, or any county, municipality, or levee board, etc.

Section 4739, Code of 1906, section 7057, Hemingway’s Code, makes it the duty of the revenue agent to investigate the accounts, vouchers and books of all fiscal officers of the state, and of every county, municipality, and levee board, and to sue for and collect and pay over all money improperly withheld from either, and he has the power to sue and right of action against all such officers and their sureties, etc.

Section 4740, Code of 1906, section 7058, Hemingway-way’s Code, provides that the revenue agent may cause additional assessments to be made on property escaping taxation.

Taking all these sections together, and considering the whole scope of the legislation bearing on the office, power, and duties of the state revenue agent, we think it was the purpose of the legislature to give the state revenue agent the power to bring suit in his own name for any moneys, taxes, or other obligations due to the state, any county, municipality, or levee board interested, and that it was not necessary for him to bring suit in the name of the state, or the municipality, or the .levee district; and we see no reason why he could not declare against the same defendant in separate counts of the declaration for obligations due by the defendant to each. Separate pleas could be filed to the separate counts, and separate verdicts could be rendered, and the court could control the whole matter by instructions to the jury so that the rights might be enforced without undue delay and without unnecessarily protracting litigation. We think, therefore, that the court below erred in sustaining the demurrer to the declaration as to this nature of the declaration.

As to that part of the declaration that seeks to recover against the defendant for privilege taxes for the period from 1911 to the 1st of May, 1915, when the defendant bought the business from the Alexander Lumber Company, we hold that the plaintiff had no cause of action against the Greenwood Lumber Company for such privilege taxes for said years 1911, 1912, 1913, and 1914.

Section 3900, Code of 1906, section 6629, Hemingway’s Code, requires the tax collector to keep a privilege tax register in which the names of all privilege taxpayers should be recorded showing the amounts, etc., paid for.

Section 3901, Code of 1906, section 6630, Hemingway’s Code, provides that the persons or corporations liable for privilege taxes who shall fail to procure a license during the month in which it is due shall be liable for double the amount of the tax, and it is made the duty of the tax collector to collect the amount, issue a seperate license therefor, and to indorse across its face the words “collected as damages.”

Section 3837, Code of 1906, section 6542, Hemingway’s Code, imposed privilege tax in the following language:

“On each lumber yard or dealer whose annual sale exceeds one-half million feet of lumber— one. hundred dollars,” etc.

Section 3906, Code of 1906, section 6636, Hemingway’s Code, provides the license herein provided shall be a personal privilege enjoyable only by the person to whom it was issued, and it shall not be transferable, and such license shall not exempt from taxation any property used in the business except as specifically provided for in this chapter.

The privilege license is the license due by the person conducting the business of lutnber yard or dealer and is measured by the amount of business done. The express language of section 3901 above referred to is that all persons or corporations liable for privilege taxes who shall fail to procure the license, etc. It is clear that from the provisions of the privilege tax laws that the legislature was imposing a license on persons or corporations conducting the business. It is difficult to see how a lumber yard could be proceeded against by a suit. In other words, the revenue agent could not sue a lumber yard as such, but he would have to sue the persons or corporations who were pursuing the business which was taxed. The^ revenue agent could proceed against the corporation doing the business in 1911 if such corporation had not paid its license; but the statute does not impose liability in terms upon the purchaser of such business, nor does it make the privilege tax a lien upon the property before the property is seized by the tax collector.

Section 3905 of the Code provides a method of seizing the property by distress by the tax collector, but it does not impose any lien upon the property prior to seizure. This section further expresses the idea of personal liability against the person conducting the business in the following language:

“Any one failing to pay the privileges by this act imposed, and to obtain license as herein required, but pursuing the business taxed without such license, may be proceeded against by suit.”

The revenue agent therefore had no right to collect from the Greenwood Lumber Company privilege taxes for the business conducted by the Alexander Lumber Company prior to the purchase of the property by the Greenwood Lumber Company.

Reversed and remanded.