Summary
Appeal from the circuit court of Forrest county.
Hon. Paul B. Johnson, Judge.
Petition by W. T. Jones and others for a writ of mandamus against J. D'. Bennett, sheriff and tax collector. From a judgment overruling a demurrer to the petition and directing the issuance of the writ, defendant appeals.
The facts are fully stated in the opinion of the court.
The single question presented by this record is whether or not a person whose duty it is to pay a privilege tax during the month of April and who fails to do so and thereby becomes liable for double damages, as provided by section 3901 of the Code of 1906, is entitled, notwithstanding his default and liability for double the amount of the tax, to have the licenses issued to him on payment of the original tax without paying the double amount. Section 3901 of the Code of 1906 is as follows: “All persons or corporations liable for privilege tax who shall fail to procure the license during the month on which it is due shall be liable for double the amount of the tax, and it is hereby made the duty of the tax collector to collect the amount, issue a separate license therefor, and to endorse across its face the words “collected as damages.” Section 3902 of the Code of 1906 is as follows: “On all licenses not paid during the month when due, and on which double tax is collected, the tax collector shall be entitled to retain one-half of said damages as compensation for his extra service, in addition to 'the regular commissions now allowed by law on the regular collection. ’ ’
The law makes it the duty of any person engaged in conducting a business on which a privilege tax is levied to pay the tax and take out the license during the month in which it is due. Such person is not legally entitled to do business without taking out this license during the month in which it is due. If he fails to take out the license during the month in which it is due, then, according to section 3901, Code of 1906, he owes as a privilege tax twice as much as he would have owed if he had taken out the license at the proper time. Section 3901 says he shall be liable for double the amount of the tax, and that section makes it the duty of the tax collector to collect the amount and issue the separate license therefor and endorse across its face the words “collected as damages.” It is as much the duty of the person carrying on the business to pay the double tax after he is in default as it was his duty to pay the single tax before he was in default. If the privilege license taken out during the month in which the license is due constitutes the authority for the person to do business and is the evidence that he has complied with the law and is, therefore, entitled to conduct the business, then the two privilege licenses provided for by section 3901, to be issued after default, constitute the evidence that the person doing the business has complied with the law and is entitled to carry on the business covered by the licenses. In other words, before default, if the person pays the tax in the month in which it is due he pays a single tax and obtains a single license and is authorized thereby to conduct the business, but if he waits until he is in default it is his duty to pay twice as much tax or double tax, and to obtain a saparate license for each of the two amounts before he is entitled to do business. It is manifestly the intention of section 3901 that the tax collector shall require the person who is in default to pay a double tax before any license can be issued to him authorizing him to do business. Section 3902, Code of 1906 provides that one-half of the additional tax imposed shall be retained by the tax collector as damages for his extra service, in addition to a regular commission allowed by the law on a regular collection. Under this section the other one-half of the double tax or increased tax, belongs to the state of course, and it is the duty of the tax collector to pay it over less his commission on that one-half.
The appellees contend that section 7, chapter 104, Laws of 1912, had the effect to repeal section 3901, Code of 1906, in so far as collecting the double tax is concerned. Chapter 104, Laws of 1912, provided for a tax of four hundred dollars on pool rooms in towns of not less than 10,000 inhabitants, and also provided for privilege tax on certain other occupations. Section 7 of said act provides that “all laws and parts of laws in conflict with this act are hereby repealed. ’ ’ Section 3901, Code 1906, is not in conflict with chapter 104, Laws 1912; section 3901 is a general provision for the collection of privilege tax after default and for double that tax when not paid in the month in which it falls due. The laws in conflict with chapter 104, Laws of 1912, are such laws as levy a different privilege tax on the callings named in chapter 104, Laws 1912, than the tax therein provided. For instance, section 3778, Code of 1906, puts a privilege tax of seventy-five dollars on pool rooms in cities of not less than 5,000 inhabitants, whereas in chapter 104, Laws of 1912, one hundred dollars is the minimum tax on any pool room, and two hundred dollars is the tax in cities of less than 7,500, but not less than 2,500 inhabitants. Section 3778, Code of 1906, is in conflict with chapter 104, Laws of 1912, and is repealed by it, but there is no conflict as to section 3901, Code of 1906.
We respectfully submit that the judgment of the court below should be reversed.
It is to be observed in the first place that section 3778 of the Code of 1906, fixes the privilege tax on persons operating a pool room in cities the size of Hattiesburg and larger at seventy-five dollars. This section of the Code was amended by chapter 73, page 56, of the Acts of 1908, but that Act nowhere fixes a penalty for the failure to obtain the privilege tax in the time as prescribed by the code. Under chapter 104, page 83 of the Act of 1912, the legislature passed an independent (not an amendatory) act fixing the license for operating the pool rooms in cities the size of Hattiesburg at four hundred dollars, but nowhere in that act was there any reference to any other act; and, besides, section 7 of the act repealed all laws and parts of law in conflict with the Act in question.
The Act of 1912, then, is' not an amendatory act, but an independent act, and-if any penalty or punishment is to be visited upon anyone for an infraction thereof, certainly the act should prescribe the penalty, and especially where the penalty is so drastic as that denounced by section 3901 of the Code. Should it be insisted that the Act of 1912 was not an independent but an amendatory, act, then, the act itself is in palpable violation of section 61 of the Constitution of the state, because no reference whatever is made in the act under consideration either to the Code of 1906, or to it. It follows then, that as an amendatory act, it would fall clearly within the inhibition of section 61 of the Constitution, and as such would be void. An amendatory act must contain some words which indicate the theme or provision which the act sought to be amended treats: State v. Superior Court, 92 Am. St. Bep. 831, 28 Wash. 317, 68 Pac. 957; Sample v. Verona, 94 Miss. 264, 48 So. 2; Board of Levy Com. Y. é M. Delat v. Royal Ins. Co., 96 Miss. 832,- So. 2. These latter cases holding that the' title must be in conformity to section 71 of the Constitution and clearly express in it the section, or sections, of the law proposed to be amended.
Where a statute is intended as a substitute for a former statute it repeals such former statute, and though there be a plain case of casus omissus, the court cannot supply. Clay County v. Chickasaw Co., 64 Miss. 543, 1 So. 753.
Ill the case of State, eá> rel. Adams v. Lodge 16, B. P. O. E., 13 So. 255 (not officially reported), the court held that section 2 of the Act of February 24,1890, with reference to the sale of liquor was repealed by a new law as the section of the old law was omitted. Everything falls with an abrogated law not fully executed, except where contract rights have vested, and this is especially true in matters of taxation: Bradstreet v. Jackson, 81 Miss. 233, 32 So. 999.
The court in construing a statute which has been amended, must look at it as it stands after the amendment, construing the amended statute according to the natural signification of the words. George v. Woods, 94 Miss. 268,-So. 147.
Penal statutes: Penal statutes cannot be extended by implication: Southerland on Statutory Construction, sec. 350; 36 Cyc. 1113; Merrill v. Melchoir, 30 Miss. 516. Statutes in their nature penal should not be extended by construction beyond their meaning: Independent School List. v. Collins, 128 Am. St. Rep. 76, 15 Idaho, 535, 98 Pac. 857; Elliott Col. Int. Rev. v. East Penn, R. R. Co., 91 U. S. 492, 25 L. Ed. 292. If a statute be less comprehensive than the legislature intended, it is for that body to extend its operation and not for the court to do so. Southerland v. Commonwealth, 132 Am. St. Rep. 949, 109 Ya. 834, 65 S. E. 15. Penal statutes are nonflexible, and can be made to embrace nothing which is not within the intent of the legislature in passing them; If other things equally injurious seem to deserve the same punishment, the legislature alone can provide for it. Shaiv v. Clark, 43 Am. Rep. 474, 49 Mich. 384.
Legislative intent: Since the legislative intent furnishes criteria for the interpretation and construction of statutes, for the purpose of this investigation, we might examine, with profit, the other privilege tax statutes passed at the same session of the legislature and ascertain if they shed any light on the question of intent.
The act under consideration is chapter 104, page 83, Acts 1912. As before stated, there is no penalty denounced in this statute for the failure to take out privilege tax during the month of the expiration thereof. There are quite a number of other privilege tax laws passed at the same session of the legislature, and it is to be especially noted that practically all these other statutes contain penalties for their infraction.
It is therefore, respectfully submitted that the case should be affirmed, and among other reasons, we submit the following. That the Act of 1912, chapter 104, page 83, is a new and independent act and repeals expressly and by implication sections 3901 and 3902 of the Code; that if it be insisted that the Act of 1912 is amendatory of the Code and the Act of 1908, then it is without validity, as it contravenes sections 61 and 71 of the Constitution.
The appellees are entitled to the privilege tax license upon paying the fee required by law, whether the penalty denounced by section 3901 of the Code is collectible or not.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
