Opinion
No. 32736.
May 24, 1937. Suggestion of Error Overruled July 1, 1937.
1. STATUTES.
Under principle of "ejusdem generis," general terms in a statute following special words are to be limited the same as the special words, unless the contrary appears.
2. STATUTES.
State tax collector, with statutory authority to sue for unpaid taxes and all past-due obligations, could not sue for wrongful removal of sand and gravel from bed of navigable body of water, since principle of ejusdem generis applies, and words "past-due obligations" are given meaning by what goes before (Code 1930, secs. 6984, 6986).
APPEAL from the chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
Mize, Thompson Mize, of Gulfport, and J.O.S. Sanders, of Jackson, for appellant.
The bill of complaint seeks to recover for sand and gravel removed by the appellees from the bed of Bayou Bernard, a navigable body of water in Harrison County, Mississippi. The material facts in this case are analogous to those in the case of State v. Jefferson Island Salt Mining Company, decided by Louisiana Court and affirmed by the Supreme Court of the United States, being fully reported in 163 So. 147. That case reaffirms the well settled rule that minerals removed from the bed of navigable waters are owned by the State in trust for all of the inhabitants thereof, and may not be alienated. This rule seems to be without exception in the case of Tidal Waters. See Money v. Wood, 118 So. 357, 152 Miss. 17. In a later case from Harrison County, Mississippi, Rouse v. Saucier, reported in 146 So. 291, in a clear and concise opinion by Judge Griffith there is left no room for doubt about the rule in such cases. Judge Griffith cites to approve the case of Money v. Wood, 118 So. 357, 152 Miss. 17.
The common law rule prevails in Mississippi and a riparian owner on a fresh water stream is entitled to take from the bed of the stream sand and gravel to the middle of the stream.
Archer v. Miss. Levee Commission, 130 So. 55.
But the rule is different in the case of tidal waters. If the appellee owns the upland adjacent to the point from which the sand and gravel be taken as is the case here, the right is limited to mean high tide and may not go farther.
Money v. Wood, 118 So. 357, 152 Miss. 17; Rouse v. Saucier's Heirs, 146 So. 291; Perky Properties v. Felton, 131 So. 892, 113 Fla. 432.
The right of the state tax collector was challenged in the court below because forsooth the land commissioner might under the statute have brought such suit, maybe he could, but that fact does not take away from the state tax collector his right, if he has the right; that he has the right is shown by section 6986, Mississippi Code of 1930.
The word "obligation" as defined in the authorities we submit clearly shows that the state tax collector has such right.
56 Sup. Ct. Rep. 667; L.R.A. 1916C 149.
We think that undoubtedly the passage of section 6986 of the Code of 1930 gives him the power to bring this suit. This section of the code was passed in 1926, being Chapter 286 of the Laws of 1926, and was for the purpose of abolishing the office of revenue agent and creating the new office, and stating his powers and also his duties. Among his powers were that it should be his duty to proceed by suit in the proper court against all persons, corporation, etc., "for all past due and unpaid taxes of any kind whatever with the exception of income and inheritance taxes." This was then amended in 1928 Extraordinary Session, chapter 71, which provided and gave him the power to sue for all past due and unpaid taxes and the court will note in these two acts that it referred to taxes, but when the Legislature adopted the Code of 1930, we call the court's attention to the fact for the first time that there was added to his powers the following: "and for all past due obligations and indebtedness of any character due and owing to them or any of them" (referring to the state, city, county, municipality, etc.), then makes only two exceptions, the one for penalty for violation of the anti-trust law and the other for the collection of income and inheritance taxes, so it was the intention of the Legislature to confer on this official the duty to collect for the state every obligation or indebtedness of any character or description whatsoever. It may be as contended by counsel for the defendants that the land commissioner would also have the authority to bring such a suit, but his authority is not exclusive as was held in the case of McClelland v. Gully, 160 So. 567, where the Supreme Court of Mississippi held that statutes conferring power on both county superintendent of education and state tax collector to institute suits for past due loss of 16th section funds was authorized, and further held the fact that the superintendent of education was authorized to sue did not withdraw the authority of the state tax collector. The court said that the two statutes must be construed together and harmonized, if possible.
It is very clear and was the intention of the Legislature to authorize the state tax collector to bring all actions of any character with the sole two exceptions mentioned in the statute.
The term "obligation" is a broad term and can refer to obligations arising out of tort or obligation arising out of contract.
6 Words Phrases, 4882; Words Phrases (2 Ed.) 671; Vandalia Ry. Co. v. Keyes, 91 N.E. 173.
Chas. R. Haydon and Gardner Backstrom, all of Gulfport, for appellees.
Riparian rights in navigable streams above the ebb and flow of the tide extend to the thread of the stream, and include the right to dredge sand and gravel therefrom.
Archer v. Gravel Co., 233 U.S. 60, 34 S.Ct. 567; Archer v. Levee Comrs., 158 Miss. 57, 130 So. 55; Steamboat Magnolia v. Marshall, 39 Miss. 109; Archer v. Railway Co., 114 Miss. 403, 75 So. 251; Richardson v. Sims, 118 Miss. 728, 80 So. 4.
Riparian rights are the same below the ebb and flow of the tide as above. If there is a difference in riparian rights above the ebb and flow of the tide and below, such difference is arbitrary, founded on a misconception of common law, and is immaterial for the purposes of this suit, for in no event does the state own the soil under navigable streams, tide water or fresh water, in its proprietary capacity.
St. Paul Pacific R. Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74; Morgan v. Reading, 3 S. M. 366; Blundell v. Cattrell, 5 Barn. Ald. 91; Homochitto River v. Withers, 29 Miss. 21; People v. Canal Appraisers, 13 Wend. 355; Steamboat Magnolia v. Marshall, 39 Miss. 109; Carson v. Blazer, 2 Binney's Pennsylvania 477, 4 Am. Dec. 463.
The riparian proprietor has a qualified title to the beds of navigable streams, which is defined as a full title, subject only to the paramount easement over such navigable streams in favor of the public.
Archer v. Levee Comrs., 158 Miss. 57; Money v. Wood, 152 Miss. 17, 118 So. 357; Rouse v. Saucier, 116 Miss. 704, 146 So. 291; Commonwealth v. Alger, 61 Mass. (7 Cush.) 53; Ferguson v. Arthur, 117 U.S. 482, 29 L.Ed. 973, 6 S.Ct. 861; Boston Molasses Co. v. Commonwealth, 193 Mass. 387, 79 N.E. 827; Lyon v. Fishmongers Co., L.R. 1 App. Cases 622; I.C.R. Co. v. Illinois, 146 U.S. 388, 36 L.Ed. 1018.
The only paramount public right is the right to the free and unobstructed use of navigable waters for navigation. As between the state and the riparian proprietor the right of the riparian proprietor to the use and appropriation of the beds of navigable streams is paramount to the right of the state.
Illinois Steel Co. v. Bilot, 109 Wis. 418, 85 N.W. 402, 83 Am. St. Rep. 905; Town of Orange v. Resnik, 94 Conn. 573, 109 A. 864, 10 A.L.R. 1046; Nichols v. Lewis, 15 Conn. 137; Ladies' Seamen's Friend Soc. v. Halstead, 58 Conn. 144, 19 A. 658; Doemel v. Jantz, 180 Wis. 225, 103 N.W. 393, 31 A.L.R. 965; Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 71 A.L.R. 1238.
Since the state has no proprietary interest in the soil under its navigable streams, it cannot sue for the value of sand and gravel taken therefrom.
State v. Korrer, 127 Minn. 60, 148 N.W. 617, L.R.A. 1916C 139.
Riparian rights are the same whether the riparian proprietor owns the soil under navigable streams or not.
Steel Co. v. Bilot, 109 Wis. 418, 85 N.W. 402, 83 Am. St. Rep. 905; Orange v. Resnik, 94 Conn. 573, 109 A. 864, 10 A.L.R. 1046; Doemel v. Jantz, 180 Wis. 225, 103 N.W. 393, 31 A.L.R. 965; Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 71 A.L.R. 1238; Peck v. Construction Co., 238 N.W. 416, 89 A.L.R. 1132; Diedrich v. Railway Co., 42 Wis. 248, 24 Am. St. Rep. 368.
The authorities in Mississippi harmonize as to the rights of the riparian proprietor, whether above or below the tide.
Money v. Wood, 152 Miss. 17; Rouse v. Saucier, 166 Miss. 704; Steamboat Magnolia v. Marshall, 39 Miss. 109.
For the purpose of this suit the navigability of Bayou Bernard must be judged by the law of Mississippi. The bill of complaint does not show that it is navigable under the law of this state.
Donnelly v. U.S., 228 U.S. 243, 33 S.Ct. 449; Secs. 1378, 6462 and 6463, Code of 1930.
The state tax collector is without authority to maintain this suit.
Section 6986 of the Code of 1930 gives the state tax collector the right to sue for all past due obligations and indebtedness of any character owing to the state. The first question here presented is whether the claim here sued upon is an obligation or an indebtedness past due, within the meaning of that statute. In approaching this question it must be borne in mind that the state tax collector is exercising a purely statutory authority, and the statute must be strictly construed against the state tax collector. If he does not come strictly within the terms of the statute, his authority to maintain this suit must be denied. Both obligation and indebtedness have a well defined ordinary meaning, and in their ordinary meaning they both refer to a duty imposed by contract. It is true both of these words are sufficiently broad to include a liability for tort if that meaning can be inferred from the context in which the words may be used. It is submitted, however, that there is nothing in said section 6986 which may be construed as indicating that these words were used in any other sense than their ordinary meaning. They are to be construed strictly against the state tax collector, and so construed cannot be construed as giving him authority to maintain this suit.
This construction must be accepted for the further reason that the Legislature has delegated this specific duty to the land commissioner.
Section 6011, Code of 1930.
Since the state has delegated to the land commissioner the duty to institute and prosecute all suits for trespass on any lands claimed by it, and since it is necessary in any event to give to the words, "obligations" and "indebtedness" a meaning not ordinarily ascribed to these words and not called for by the context, it is submitted that the right to maintain this suit is vested in the land commissioner and not in the state tax collector.
Edward Hines Yellow Pine Trustees v. State ex rel. Moore, 134 Miss. 194, 98 So. 445; Adams v. Luce, 87 Miss. 220, 39 So. 418; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Patterson v. State, 170 So. 645.
Argued orally by Robert W. Thompson, Jr., and J.O.S. Sanders, for appellant, and by Hanum Gardner, for appellee.
The state tax collector filed the bill in this case in the chancery court of Harrison county against appellees to recover for the state the sum of $400,000, the value of the sand and gravel alleged to have been wrongfully removed by them from the bed of Bayou Bernard, a navigable body of water in Harrison county in this state. The chancellor dismissed the bill on demurrer. From that decree the state tax collector prosecutes this appeal.
At the threshold we are met with the question as to the power of the state tax collector to bring and prosecute this suit. His powers to sue are contained in section 6986, Code of 1930, which follows: "The state tax collector may appoint a sufficient number of deputies, but not to exceed ten at any one time. He shall have power and it shall be his duty to proceed by suit in the proper court against all persons, corporations, companies and associations of persons for all past due and unpaid taxes of any kind whatever, whether of the state, county, municipality, drainage, levee or other taxing district, or any subdivision thereof, and for all past due obligations and indebtedness of any character due and owing to them or any of them, except penalties for the violation of the anti-trust laws and except income and inheritance taxes. In all cases of valuation or ownership of property which has escaped taxation, he may have subpoenaed witnesses to testify before any board of supervisors, board of mayor and aldermen, or tax commission."
The solution of the question turns on the meaning of the language in the statute, "all past due obligations." We have reached the conclusion that the tax collector is without the power upon the following considerations: The outstanding authority given by the statute is the collection of unpaid taxes due the state and its political subdivisions, including taxing districts. "State tax collector" is the title given him by the statute (section 6984). "Past due obligations" is given meaning by what goes before. The principal of ejusdem generis applies. Where special words are used in a statute followed by terms more general, the general terms are to be limited to like kind and character as the special words, unless the contrary appears. Leinkauf v. Barnes, 66 Miss. 207, 5 So. 402; Anderson v. Hattiesburg, 131 Miss. 216, 94 So. 163. Furthermore, this court in construing section 100 of the Constitution held that it had no application to an unliquidated claim growing out of tort; in other words, the language "obligation or liability" meant a fixed amount and not an unliquidated claim. That section of the Constitution prohibits the release, remittance, postponement, or any diminution by the Legislature of the obligation or liability of any person, association, or corporation held by the state or any of its political subdivisions. Eastman, Gardiner Co. v. Adams, 101 Miss. 460, 58 So. 221, and Robertson v. Weston Lumber Co., 124 Miss. 606, 87 So. 120.
The tax collector is without authority to sue for an unliquidated demand growing out of tort.
Affirmed.