DocketNumber: No. 4-3983
Citation Numbers: 85 S.W.2d 703, 191 Ark. 195
Judges: McHANEY, J.
Filed Date: 6/24/1935
Status: Precedential
Modified Date: 1/12/2023
Appellant, who is the Commissioner of Revenues for the State of Arkansas, brought this action in his name as such Commissioner for the use and benefit of the State. He alleged that he has information and it is his belief, that, from February 1, 1930, through September 30, 1934, the appellee sold and delivered to the Arkansas Western Gas Company 1,698,772,000 M.C.F. of natural gas, an itemized list of said deliveries being attached to the complaint, and made a part thereof. He further alleged that said gas had a value of ten cents per M.C.F. at the point of severance, and that there is due the State a severance tax of 2 1/2 per cent. of the value of said natural gas amounting to the sum of $42,669.30. Prayer was that the court ascertain the correct amount due as a severance tax, and that judgment be rendered in appellant's favor for said sum.
An amendment was filed to the complaint which alleged the consent of the Arkansas Corporation Commission for the bringing of said suit.
Thereafter, appellee filed a demurrer to the complaint and amendment on the ground that this is a suit for the collection of back taxes, and that under the law it can be brought only by the Attorney General for and on behalf of the State and in its name, and that appellant has no power under the law to maintain this suit. The court sustained said demurrer, and, on appellant's declining to plead further, the cause was dismissed for the want of equity.
The only question presented for our consideration is whether the appellant, Earl R. Wiseman, as Commissioner of Revenues for the State of Arkansas, has the power to maintain this suit, or whether it is a suit under *Page 197
10,204 of Crawford Moses' Digest? It is true that in State v. Republic Mining Manufacturing Co.,
Act 82 of the Acts of 1933 was passed, subsequent to our decision in the case of State v. Republic Mining Mfg. Co., supra, and the Legislature, no doubt, had this decision in mind, and it was its purpose to change the *Page 198
rule announced therein. As we said in State ex rel. Att'y General v. Standard Oil Co. of Louisiana,
The authority conferred upon the Commissioner by said act of 1933 is further confirmed in act 131 of 1935, 1 of which reads as follows: "The Revenue Commissioner of the State of Arkansas is hereby given authority to promulgate any and all regulations, rules and orders which he may deem necessary to effectively collect all taxes, penalties, delinquencies, default and other moneys required by law to be collected by the State Revenue Department, and suits may be filed in the name of the Commissioner of Revenues and at his instance to recover money due and payable to the State and collectable by him. Within ten days after any amount of money is due and payable the Revenue Commissioner shall take steps to collect the same."
We think there is no doubt about the authority of the Commissioner as conferred by the act of 1933, but, if there be any such doubt, the language just quoted in the act of 1935 would lay all doubt at rest. It clearly directs the Commissioner and confers power upon him to bring suit to collect "all taxes, penalties, delinquencies, default and other moneys required by law to be collected by the State Revenue Department, and suits may be filed in the name of the Commissioner of Revenues and at his instance to recover money due and payable to the State and collectable by him."
But appellee says that this operates as a repeal of said 10,204 by implication, and that repeals by implication are not favored. While it is true that repeals by implication are not favored said 10,204 has not been repealed except in this, that the power theretofore conferred upon the Attorney General to bring such a suit as *Page 199 the one at bar has been taken away, and conferred upon the Commissioner of Revenues.
The decree will be reversed, and the cause remanded with directions to overrule the demurrer, and for such other and further proceedings as may be according to law, the principles of equity, and not inconsistent herewith.