Opinion
No. 30237.
November 14, 1932. Suggestion of Error Overruled November 28, 1932.
1. LICENSES. Statutory provision requiring municipality to pay claim for taxes, regardless of whether taxes were paid under protest, applies only to proceedings under statute and not to direct suit against municipality ( Code 1930, section 2591).
Code 1930, section 2591, provides that governing body of all towns, cities, and villages is authorized and required to refund erroneously paid privilege tax or ad valorem tax, with provision for audit by clerk whereupon governing body was directed, authorized, and required to pay claims, regardless of whether taxes were paid under duress, protest, or not.
2. LICENSES.
Taxpayer instituting direct suit against municipality to recover privilege taxes abandoned statutory proceeding (Code 1930, sections 61, 2591).
APPEAL from Circuit Court of Leflore County.
Ward Allen, of Greenwood, for appellant.
Our contention is that by the allegations in the declaration the appellant placed this suit squarely within the provisions of the statute and that he is proceeding under the statute. The statute relieves one proceeding under it from the necessity of showing payment of the tax under protest, in view of the unmistakable language of the statute.
Riley v. Ammon, 143 Miss. 861, 108 So. 296; Section 2591, Code of 1930.
We apply to the statute the familiar rule expressio unius est exclusio alterius, meaning, of course, that the mention of one thing in a statute implies the exclusion of another thing. Section 2591 includes everything that shall be done by an applicant up until the time his claim is rejected and is then silent. We are therefore forcibly reminded that the legislature did not intend to legislate on the procedure to be followed after rejection of a claim. In view of this rule we think any court would be traveling far to say that by enacting section 2591, the Legislature intended to change the rule of the Pylant case, 87 Miss. 433, and to require an applicant proceeding under the section to resort exclusively to his remedy by appeal under section 61.
A statute is not to be given a construction at variance with established rules of procedure, unless the intention of the Legislature is apparent.
25 R.C.L. 1057.
Long prior to the enactment of section 2591 and while it was still necessary to pay a tax under protest if recovery could be had, it was a recognized method of procedure in this state that a taxpayer could pay an illegal tax under protest and bring a suit for its recovery against the municipality or the tax collector thereof, if the money were still retained by him.
Leonard v. Canton, 35 Miss. 189; Vicksburg v. Butler, 56 Miss. 72; Huntley v. Bank of Winona, 69 Miss. 663, 13 So. 832.
We think it would be going very far to say that by section 2591 the Legislature ever intended that a serious constitutional question must necessarily be tried on the record presented by an appeal to the circuit court from an order of a municipal board. We think we had the right to appeal after complying with section 2591, but we think we had an equal right to bring this suit after complying with section 2591, and we contend that by bringing this suit on a formal declaration and reciting in our declaration a previous literal compliance with section 2591, we have chosen the better of the two methods of procedure which were open to us.
Pearl River County v. Lacey, 124 Miss. 85, 86 So. 755; Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277.
A.H. Bell and W.S. Vardaman, Jr., both of Greenwood, for appellee.
Before the enactment of chapter 273 of the Laws of 1926, there was no remedy to a taxpayer who paid a tax not due, unless the tax was paid under protest.
Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 534; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277.
The Legislature of the state of Mississippi in enacting chapter 273 of the Laws of 1926 changed the general rule and provided a method whereby a refund of taxes erroneously paid may be held. Section 2591 sets out the method which must be followed in order for a taxpayer to recover erroneously paid taxes from a municipal treasury.
The statute is silent as to what course should be pursued by an applicant whose claim is found not to be due by the governing body of the municipality. If such a claim found not to be due, there will be an order on the minutes of such municipality, and section 61 of the Code of 1930 provides that any person aggrieved by a decision of the municipal authorities may appeal to the circuit court or the county court, as the case may be. This the appellant did not do, but elected to file his direct action against the city of Greenwood in the county court of Leflore county, Mississippi. In filing this direct action, the appellant takes his case out of the provisions of the statute.
It is an elementary rule of law that no tax can be recovered unless paid under protest, except where the statute has changed this rule.
Schmittler v. Sunflower County, 125 So. 534, 156 Miss. 227.
Argued orally by W.S. Vardaman, Jr., and A.H. Bell, for appellee, and Ward Allen, for appellant.
The appellant sued the appellee, in a county court, for the amount of privilege taxes alleged to have been paid by him to the appellee for each of several past years.
One of the allegations of the declaration is that:
"Plaintiff says that heretofore, after payment of the aforesaid privilege taxes to defendant, and pursuant to section 2591 of the Mississippi Code of 1930, he submitted his application for refund of said taxes, to the governing body of defendant city of Greenwood, but that his said claim was found by said governing body to be not due, and that the clerk of said defendant municipality has failed and refused to audit said claim, and to certify the amount due plaintiff to the mayor of said defendant municipality, and that said mayor has failed and refused to cause a warrant to be issued on the treasury or depository of said defendant municipality to plaintiff, in said amount so due."
The statute there referred to is as follows: "The governing body of all towns, cities and villages is hereby authorized and required to refund erroneously paid privilege tax or ad valorem tax paid such town, city or village. Applicant for such refunds shall submit application to the governing body of such municipality and such claim if found by the governing body to be due, then, the clerk of said municipality shall audit same and the said clerk, after auditing the account shall certify the amounts due said applicant to the mayor of said municipality, who shall cause warrant to be issued on the treasury or depository, of said municipality in favor of the claimant as certified by the clerk. And the said governing body of the municipality is hereby directed, authorized and required to pay such claims and this regardless of whether the taxes were paid under duress, protest or not."
A demurrer to this declaration was sustained, and on the appellant's declining to amend, his suit was dismissed. On appeal to the court below, the judgment so doing was affirmed.
One of the appellee's contentions under the demurrer is that it does not appear from the declaration "that the plaintiff paid the privilege license mentioned in said declaration under protest." This objection to the declaration is well taken unless the necessity for such a protest has been abrogated by the last sentence of the statute hereinbefore set out. Schmittler v. Sunflower County, 156 Miss. 227, 125 So. 534, 126 So. 39. This provision of the statute applies only to proceedings under the statute, and not to a direct suit against a municipality. Schmittler v. Sunflower County, supra. It is true that the statute there under consideration was not the one here invoked, but the rule there applied, applies with equal force here.
But it is said by counsel for appellant that this proceeding is under the statute; that having invoked its provisions by filing his claim with the appellee's governing body, he had the right at his election, after its disallowance, to either appeal therefrom under section 61, Code 1930, or to institute a direct suit against the municipality. This is true, but when he instituted a direct suit against the municipality he thereby abandoned the statutory proceeding. The only judgment that the courts below could have here rendered was one granting or denying the appellant a recovery; and, in the event a recovery was granted, to award him a straight money judgment, which it would have then become the duty of the appellee to pay without further proceeding to ascertain the amount thereof.
Had the appellee's governing body allowed the appellant's claim, he would not have thereby become entitled to recover the amount thereof, but it would have become the duty of the appellee's clerk to audit the same and certify the amount due thereon to the appellee's mayor, who would then have issued a warrant therefor. Section 2591, Code 1930. Had the appellant appealed from the order of the appellee's governing body, disallowing his claim, the court to which the appeal was taken, in the event it reversed that order, would have rendered, not a judgment awarding the appellant a recovery of the amount claimed, but "such judgment as the municipal authorities ought to have rendered;" that is, a judgment that his claim was due. On the certification of that judgment to the appellee's governing body, it would then have become the duty of its clerk and mayor to discharge the duties imposed upon them by section 2591, Code 1930, to the same extent as if the claim had been allowed by the appellee's governing body when presented to it.
Affirmed.