Opinion
No. 27350.
December 17, 1928.
1. TAXATION. Tax laws must be strictly construed and doubt resolved in favor of taxpayer.
Tax laws must be strictly construed, and all doubt relative to meaning therein resolved in favor of taxpayer.
2. STATUTES. Statutes will be given prospective operation, unless contrary intention is clearly manifested.
Statutes will always be given prospective operation, unless the contrary intention is manifested by the clearest and most positive expression.
3. TAXATION. Lessor of railway cars, incorporated in another state, held not liable for taxes prior to enactment of law making such property subject to assessment and taxation ( Laws 1926, chapter 129).
Since Laws 1926, chapter 129, relating to assessment for taxation of those engaged in business of operating, furnishing, or leasing cars for transportation of freight, or to be used in operation of railway line, was not retroactive, lessor of cars, incorporated in another state, was not liable for taxes prior to enactment of such law making property subject to assessment and taxation.
4. TAXATION. Generally, corporate situs will be considered as situs of personal property until enactment of law fixing taxable situs within state.
Generally, the situs of corporation within state wherein it was in-incorporated will be considered as a situs of all its personal property until the enactment of law fixing taxable situs within state where such property is used.
APPEAL from circuit court, First district, Hinds county; HON. W.H. POTTER, Judge.
Robert S. Phifer and Chalmers Alexander, for the state.
In 1912 our legislature passed two acts, chapter 113 and chapter 114, which were to be construed in connection with each other. The validity of these acts was questioned in 1916 and this court held them to be valid. Cudahay Packing Co. v. Stovall, 112 Miss. 106. In 1920 these statutes were again attacked and the court held them invalid and the opinion in 112 Miss. 106, to be unsound. Railroad Co. v. Revenue Agt., 122 Miss. 417.
A tax is one thing and an assessment of a tax is an entirely different thing. It is our contention that the property of the Union Tank Car Company has always had a tax levied against it.
See secs. 112, 184, 185 and 195, Miss. Const.; Sec. 8154, Hem. Code, Sec. 4251, Code 1906; Morrell Co. v. Ky., 128 Ky. 447; Railroad Co. v. Revenue Agt., 73 Miss. 648; Chap. 138, Laws of 1918. In the construction of chap. 138, Laws of 1918, we request that this court carefully consider the reason of the courts in the Morrell case, 128 Ky. 447, and Railroad Co. v. Revenue Agt., 122 Miss. 417. The present chapter 129, Laws of 1926, should be construed in connection with the foregoing law and also with the general body of the common law, for it contains no repealing clause.
Although the Union Tank Car Company is a nonresident of Mississippi, yet its cars carrying commodities in interstate and intrastate commerce traversed Mississippi according to the schedules shown. These cars, or some of them, were active and in service. In the schedules there is shown the total mileage travelled by them in each of the years concerned. It is contended for the appellant that a taxable situs in Mississippi has accrued as described and defined by chapter 129, Laws of 1926, and that assessments for the years 1915 to 1925 inclusive should be made. See Sec. 4256, Code 1906; Sec. 4392, Code 1906; Chap. 120, Laws of 1916; Railroad Co. v. Adams, 73 Miss. 648.
The orders of the Mississippi Tax Commission do not in any way conflict with any of the laws or the constitution of the United States. Refrigerator Co. v. Hall, 174 U.S. 70; Refrigerator Co. v. Lynch, 177 U.S. 149; Transit Co. v. Ky., 199 U.S. 194; Tamble v. Pullman Co., 207 Fed. 30.
It is proper to give a retrospective interpretation to Chap. 120, Laws of 1926. Railroad Co. v. Adams, 73 Miss. 648; Sturges v. Carter, 114 U.S. 511; Lambe v. McCormick, 116 Iowa, 169; Becan v. Tax Commissioners, 126 Mich. 22, 60 L.R.A. 321, 86 Am. St. Rep. 524; State ex rel. Davis v. Pors, 107 Wis. 420, 51 L.R.A. 917.
The property of car line companies has always been taxable in Mississippi. This is in accord with Refrigerator Co. v. Hall, 174 U.S. 70. Chap. 129, Laws of 1926, does not levy any tax on the car line companies simply because the tax was already levied by section 4251, Code of 1906. The act of 1926 merely added a few features to facilitate the operation of the law. The legislature has the power to enact a statute which provides for the back assessment of car companies, which assessment is to be made in accordance with chapter 129, Laws of 1926. But it is unnecessary for the legislature to do this because a tax has already been levied and the state Tax Commission is now, under chapter 129, Laws of 1926, authorized to assess them. In Railroad Co. v. Adams, 73 Miss. 648, it was decided that the Revenue Agent had the power to assess the Railroad Company for back taxes for the years 1886 to 1891 inclusive, under a statute enacted in 1892. See Saint v. Welsh, 141 Ind. 382.
In the Sturges case, supra, which ended in the United States supreme court, it was sought to tax Sturges on personal property omitted from taxation for the years 1874 to 1877 inclusive. Sturges contended that if the Ohio law were given a retrospective effect it would be in conflict with the Ohio constitution, which constitution provided that the Ohio General Assembly shall not have power to pass retroactive laws. Mr. Justice WOODS, who delivered the opinion of the court, held that the act could have a retrospective operation and that to give it such effect would not violate the Ohio constitution because the act was a remedial law, and would not destroy or take away or impair vested rights, and would not create new obligations not necessary to transactions already passed.
Broom Gober, also filed a brief for the state.
Campbell, Harding Goodwin, Arthur E. Bristol and Green, Green Potter, for appellee.
1. No property of the Union Tank Car Company had any taxable situs in Mississippi during any of the years 1915 to 1925, both inclusive. This proposition had seldom been more clearly stated than in Tamble v. Pullman Co., 207 Fed. 30, to which case the attention of this court is particularly called. The whole question of the taxation of movable property belonging to a nonresident which may be in the state temporarily is therein exhaustively treated. The case now before the court is governed by Mayre v. Railroad Co., 127 U.S. 117, 8 Sup. Ct. 1037, 32 L.Ed. 94, in which it was held: "That a tax sought to be imposed and collected by the state of Virginia upon movable property, engines and cars, of a Maryland corporation, could not be collected because the state of Virginia had enacted no law applicable to the taxation of such property." See also, 92 U.S. 575, 607; Cooley on Taxation, 274; Express Co. v. Patterson, 122 Tenn. 279, 123 S.W. 353; State Board v. Holliday, 150 Ind. 216, 49 N.E. 14, 42 L.R.A. 826.
In a note on the subject of the taxation of personal property in 56 Am. Dec. 520, it is said, at page 535: "This peculiar property, which has furnished the topic of so much discussion, is held to be situated in the absence of a special statute, in the town where the principal office of the corporation is; that is, at the corporate residence. Without the help of a statute, it is incapable of acquiring a permanent locality or situs separated from the owner's residence." Until the passage of Chap. 129, Laws of 1926, Mississippi had no such statute.
2. Taxing statutes are to be strictly construed. Planters Lumber Co. v. Well, 146 Miss. 101, 112 So. 12; Miller v. Railroad Co., 146 Miss. 577, 111 So. 558.
3. No authority is conferred on the State Tax Commission, the attorney-general, or any other state authority to back assess or to levy back taxes against the Union Tank Car Company, under Chap. 129, Laws of 1926. There are no words in Chap. 129, Laws of 1926, showing any intention on the part of the legislature to make said chapter retrospective. It has been clearly and consistently held by the courts of the state of Mississippi that no statute shall be construed as retrospective unless the intention on the part of the legislature to make such act retrospective is clearly expressed. State v. Cloud, 146 Miss. 642, 112 So. 19; State v. Miller, 144 Miss. 614, 109 So. 902; Power v. Mortgage Co., 112 Miss. 319, 73 So. 51; Richards v. City Lumber Co., 111 Miss. 678, 57 So. 977.
The language used in Chap. 129, Laws of 1926, is clearly prospective. The language used throughout the Act consistently looks to the future. The title of the bill is an act to provide for the assessment of nonresident persons . . . or corporations, engaged (not which were engaged) in the business of operating, furnishing or leasing cars for the transportation of freight or to be used in the operation of any railway line, or lines, etc. In Sec. 1, the expression occurs: "It shall be the duty," etc.; in Sec. 2, the word "Company" is defined as "any person . . . or corporation engaged in operating, furnishing or leasing cars," etc. The same expression appears again in Sec. 3 and Sec. 4. In Sec. 5 the expression occurs: "Every company . . . doing business or owning cars . . . shall annually on or before April 1st in each year," etc. The other sections of the chapter provide the method of assessment, etc., but from their language must contemplate only future annual assessments. Sec. 18 provides: "That this act take effect and be in force from and after its passage."
4. Sec. 6878, Hem. Code 1927, which was cited on behalf of the state at the hearing before the State Tax Commission, obviously applies only to such property as may have a situs for the purpose of taxation within the state. Reference is here made to point 1 of this brief and the cases therein cited, in which the United States supreme court has held that movable property, such as the tank cars belonging to the Union Tank Car Company, which the state is attempting in this proceeding to assess for the purposes of taxation, has no taxable situs within the state in the absence of legislation which specifically fixes such situs and sets forth a reasonable method of determining the amount and value of such property.
5. The Union Tank Car Company is subject to no tax for the years 1915 to 1925, both inclusive, under Chap. 98, Laws of 1916. This act does not apply to taxes on corporations by reason of their ownership of freight cars. This Act applies directly to the procedure of the state auditor and the State Tax Commissioners in connection with county assessment rolls and creates the board of State Tax Commissioners, describing their manner of appointment, duties and compensations, etc. The legislature did not intend Chap. 98, Laws of 1916, to apply to owners of privately owned freight cars. During the years 1913 to 1920, both inclusive, the Union Tank Car Company was regularly making returns and being assessed and paying taxes to the state under the Gross Receipt Tax, which was subsequently declared to be unconstitutional. At the time of the passage of Chap. 98, Laws of 1916, it was generally considered that owners of privately owned freight cars were subject to gross receipts tax. To maintain that the legislature did intend to include the property of the Union Tank Car Company and other owners of privately owned freight cars would be to maintain that the legislature intended to subject this class of property to double taxation under two statutes, the second of which indicates nowhere that there was any intention of repealing, modifying or superseding the first or levying a tax additional to that declared under the first.
6. The Union Tank Car Company is subject to no tax for the years 1915 to 1925, both inclusive, under Chap. 138, Laws of 1918. Chap. 138, Laws of 1918, does not apply to taxes on corporations by reason of their ownership of freight cars. The Act applies specifically by its terms to the assessment of the property of railroads, telegraph, telephone, sleeping car, express companies and other public service corporations. It is expressly limited to the class of corporations specifically named and to other public service corporations. The Union Tank Car Company is not and never has been a public service company, nor is it a railroad, telegraph, express, or sleeping car company. It is self-evident that this law was not intended to cover companies like the Union Tank Car Company, and that by its terms it does not apply to such companies. The legislature did not intend Chap. 138, Laws of 1918, to apply to owners of privately owned freight cars. Reference is here made to point 5, and to the argument therein stated.
7. State Tax Commission has no authority to assess property assumed hereunder to be assessed, because proper interpretation of the statute precludes such assessment. Union Tank Car Company is not a freight line, nor an equipment company, and during these eleven years was otherwise taxed.
The company owned tank cars; these it leased outside of the State of Mississippi to divers persons, from year to year, who, in their respective businesses, used the leased cars throughout the United States, including Mississippi. Over such use, the company had no control. The sole connection between Mississippi and the company was the use therein by these lessees of the leased cars so owned extra-territorially. The property is sought to be assessed herein, not as property situate in Mississippi upon February 1st of each year, 1915 to 1925, both inclusive, but solely and exclusively and retroactively by virtue of Chap. 129, Laws of 1926, Sec. 9379 et seq., Hem. Code 1927.
8. In 1912, Chap. 113, Laws 1912, a similar statute in large measure was passed seeking to tax freight line companies, but was declared unconstitutional in Railroad Co. v. Robertson, 122 Miss. 417, 84 So. 449. Until March 12, 1926, there was no specific legislation applicable which directly or indirectly sought to admeasure the obligation as is done in manner and form by the assumed retroactive assessment.
The tax commission is a limited statutory agent. State v. Wheatley, 113 Miss. 575, 74 So. 429. No duty to back assess is prescribed. As to conditions under which property is to be taxed, see Item Co. v. Shipp, 140 Miss. 699, 106 So. 437; Long Beach Canning Co. v. Clark, 141 Miss. 177, 106 So. 646; Miller v. I.C.R.R. Co., supra; Railroad Co. v. Adams, 85 Miss. 796.
To assess on a mileage pro rata basis, specific statutory authority therefor is requisite. It can be found only in two sections, 9381 and 9382; by Sec. 9381, there is further condition, viz., that the property shall be "not otherwise listed for taxation or taxed in Mississippi." The property must neither be listed for taxation, nor taxed in Mississippi. If either be, there can be no assessment under this statute, though it were otherwise applicable. By the general law of Mississippi, all property in Mississippi on February 1, 1915 to 1925 was taxed; upon it is imposed an absolute liability for its pro rata portion of the state's obligations, irrespective of ownership.
Property of this character is taxable. Railroad Co. v. Robertson, 84 So. 449, 122 Miss. 417; Powell v. McKee, 81 Miss. 229; Jones v. Adams, 61 So. 420, 104 Miss. 397. Here, on February 1st, doubtless certain cars of appellee were in Mississippi, under prior leases. These cars in Mississippi on that date were taxable, and if not assessed they escaped taxation by not being assessed, and should have been assessed. This property was otherwise taxed during this eleven-year period, and being otherwise taxed, there could be no imposition under these sections.
9. This Act is invalid because it is retroactive. The power to back tax is conditioned by the Federal Constitution, and if this may be so construed, it is void, as no state may, years after, retroactive tax as is here sought to be done. Untermyer v. Anderson, 274 U.S. 730, 47 Sup. Ct. Rep. 591; Nichols v. Coolidge, 274 U.S. 531, 71 L.Ed. 1184, 52 A.L.R. 1081.
This appellee leased its cars in good faith outside of the state of Mississippi, and when it so did, there was no tax in the state of Mississippi. If there had been a tax, appellee might not have made the contract, and then being taxed as property, it may not be now taxed on a mileage pro rata basis. It is not competent after that act to create an obligation by virtue of that done, which was free from that obligation when done. Nichols v. Coolidge, 274 U.S. 539, 71 L.Ed. 1191; Lewellyn v. Frick, 268 U.S. 238, 69 L.Ed. 934; Schwab v. Doyle, 258 U.S. 529, 66 L.Ed. 747, 26 A.L.R. 1455; Trust Co. v. Waddel, 258 U.S. 540, 66 L.Ed. 759; In re Potter's Estate, 204 P. 828; Olner's Estate, 117 A. 81; In re Lyon's Estate, 134 N.E. 247; Carnegie's Estate, 196 N Y Supp. 502; In re Felton's Estate, 169 P. 392; Hunt v. Wycht, 162 P. 639, L.R.A. 1917C, 911.
The State Tax Commission has no power to back assess. Mississippi R.R. Com. v. W.U. Tel. Co., 65 So. 107 Miss. 442. The attorney-general of the state of Mississippi has no authority to initiate back-tax assessments. Rail. Com. v. W.U. Tel. Co., 107 Miss. 442, 65 So. 505. All back-tax assessments are limited by Chap. 286, Laws of 1926. Fire Insurance Case, 94 So. 7, 131 Miss. 343; State v. Elks, 69 Miss. 897; Myers v. Marshall County, 55 Miss. 347; Mobile Ohio R.R. v. Weiner, 49 Miss. 725; Vicksburg v. Insurance Co., 72 Miss. 70; Clay County v. Chickasaw County, 64 Miss. 542; State v. Wyoming Mfg. Co., 103 So. 111, 138 Miss. 249; Swift Co. v. Sones, 107 So. 881, 142 Miss. 660; Tilley v. Building Loan Association, 109 So. 11, 143 Miss. 184; Railroad Co. v. Adams, 75 Miss. 661; Pine Trustees v. Knox, 108 So. 911, 144 Miss. 560.
Argued orally by R.S. Phifer and Chalmers Alexander, for appellant, and Garner W. Green and Arthur Brystol, for appellee.
In this case there is involved the question of whether appellee should be assessed with back taxes on certain property for eleven years, from 1915 to 1925, both inclusive. Following the enactment of chapter 129, Laws of 1926, notice was given by the attorney-general to the State Tax Commission that legal steps were contemplated for collecting back taxes of appellee for said time. Thereafter the Tax Commission authorized the attorney-general to take all necessary steps looking to the assessment and collection of said taxes. The taxes, as provided by said chapter, for the year 1926 and the years subsequent thereto are not involved.
At the hearing before the State Tax Commission, appellee appeared and vigorously challenged the authority to make said assessment and to collect said back taxes. Under protest, appellee filed with the Tax Commission the data covering said eleven years, upon which the Commission made a final assessment against appellee in the sum of one million seven hundred fifty-seven thousand and nine hundred fifty-seven dollars, on which sum the Tax Commission held that back taxes should be paid for said time.
Appellee thereafter filed its bill of exceptions with the circuit court of Hinds county, and on the same date sued out a writ of certiorari, which writ was duly issued to the State Tax Commission. A motion was filed by special counsel for the attorney-general to quash the writ of certiorari. On a hearing before the circuit court it was held that appellee was not liable for said taxes, and the court ordered that the judgment of assessment be quashed and held for naught.
Chapter 129, Laws of 1926, is entitled "An act to provide for the assessment of nonresident persons, firms, partnerships, companies, associations, or corporations engaged in the business of operating, furnishing or leasing cars for the transportation of freight, or to be used in the operation of any railway line or lines, wholly or partially within this state, and providing penalties for the violation of this act."
Section 1 of the act makes it the duty of the Tax Commission to annually assess for taxation property owned and employed in the business of operating, furnishing, or leasing cars to be used in the operation of any railway lines wholly or partially within the state.
Section 2 defines the word "company" as used in the act. Section 3 defines "a freight line company." Section 4 provides that "Every company engaged in the business of furnishing or leasing cars of whatsoever kind or description, to be used in the operation of any railway line or lines, wholly or partially within this state, such line or lines not being owned, leased, or operated by such company, and such cars not being otherwise listed for taxation in Mississippi, shall be deemed to be an equipment company."
Section 5 prescribes the forms to be used in making up said assessment, and provides, among other things, there there shall be shown the name of the company, the location of its principal office, or place of business, the state under whose laws it was organized, and the names and post office addresses of certain officers of the company, etc.
We quote paragraphs 6 to 8, inclusive, of section 5 of the act, as to what further data these forms shall show, viz.:
"6. The aggregate number of miles traveled within the state of Mississippi by its cars during the preceding calendar year and the aggregate number of miles over each railroad in the state; and the total number of miles traveled by its cars during the preceding calendar year wherever operated.
"7. The average number of miles traveled by the cars of each class of its cars during the preceding year. The number of cars necessary for the mileage traveled within the state of Mississippi, under the circumstances that ordinarily attend the use of such cars, and where different classes of cars are used by said company, as to the matters embraced in this and the preceding paragraph, it shall furnish the required information as to each class of said car on the forms prescribed and furnished by the state tax commission.
"8. The actual cash value on the first day of February next preceding, of the said number of cars necessary to provide for the mileage to be reported as required by paragraph 6 of this section."
Section 8 of the act provides a scheme for the apportionment of the assessment and the taxes to the various counties and taxing units of the state. Appellee operates no-cars and furnishes no transportation of any kind. It manufactures cars, and under private contracts leases the same to lessees engaged in shipping petroleum products, and other liquid commodities. Appellee is a New Jersey corporation, and has no property located in the state. Some of its lessee shippers from time to time move some of appellee's cars into, out of, and through the state, but the said cars are continuously moving while in the state.
In 1912 the legislature enacted chapter 113 of the Laws of 1912 attempting to assess such property as described herein on a basis of a certain percentage of appellee's gross earnings in the state. Appellee paid this tax from 1913 to 1920, both inclusive, when said law was declared unconstitutional. C., R.I. P.R.R. Co. v. Robertson, 122 Miss. 417, 84 So. 449.
In order to uphold the right to assess and collect said back taxes, we would either have to give to chapter 129, Laws 1926, a retroactive effect, or else hold that said property was assessable and liable to taxation under some other revenue law of the state.
A fundamental rule in the construction of tax laws is that such laws will be strictly construed, and all doubt resolved in favor of the taxpayer. Planters' Lumber Co. v. Wells, 146 Miss. 279, 112 So. 9; Miller v. I.C.R.R. Co., 146 Miss. 442, 111 So. 558; 25 R.C.L. 1092, and authorities cited in notes.
Another fundamental rule in the construction of statutes is that they will be given a prospective operation, unless the contrary intention is manifested by the clearest and most positive expression. State v. Cloud, 146 Miss. 642, 112 So. 19; State v. Miller, etc., 144 Miss. 614, 109 So. 902; Power v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977.
No part of chapter 129, Laws of 1926, indicates a retroactive operation, but throughout the act the language employed is clearly prospective.
It is insisted by appellant that said property was subject to taxation throughout all these years, and that chapter 129, Laws of 1926, merely provides a scheme for assessment, and that all property, not expressly exempted from taxation by statute, is taxable, provided it is found within the state on February 1 of the year in which it is sought to be taxed; and chapter 138 of the Laws of 1918 is cited as authority for imposing the tax. This was an act conferring upon the state tax commission authority to assess railroads and other public service corporations, including telegraph, telephone, sleeping car, and express companies. At the time of the passage of this statute, appellee was being assessed and paying taxes under chapter 113, Laws of 1912, and continued to be assessed and to pay taxes thereunder until 1920, when the decision was rendered in C., R.I. P.R.R. Co. v. Robertson, supra, declaring this last-named act unconstitutional. This act was not repealed by chapter 138, Laws of 1918, but evidently it was the purpose of the legislature to leave chapter 113, Laws of 1912, as the exclusive scheme for assessing and taxing such property. Otherwise, appellee's property would have been subject to assessment and taxation under both laws, resulting in double taxation — a purpose we cannot impute to the legislature.
It seems that such property as is here involved has been the subject of much discussion and litigation. Assuming, but finding it unnecessary to decide, that chapter 129, Laws of 1926, is free from constitutional objections, we think it may be safely stated that before the state can tax such property as here in question, it must, by proper legislation, fix a taxable situs for such property, and provide a method and basis for its assessment. This the state has sought to do by chapter 129, Laws of 1926, with prospective operation only.
As the situs of the Union Tank Car Co., appellee, is in the state of New Jersey, that state, as a general rule, would be considered as the situs of all its personal property, until this state enacted a statute fixing its taxable situs in Mississippi. In 56 Am. Dec. 535, we find a helpful note, as follows:
"This peculiar property, which has furnished the topic of so much discussion, is held to be situated, in the absence of a special statute, in the town where the principal office of the corporation is; that is, at the corporate residence. Without the help of a statute, it is incapable of acquiring a permanent locality or situs separated from the owner's residence" citing: " Mohawk, etc., R.R. Co. v. Clute, 4 Paige [N.Y.] 384; Appeal Tax Court v. Western Md. R.R. Co., 50 Md. 274; Philadelphia, Wilmington, etc., R.R. Co. v. Appeal Tax Court, 50 Md. 397; Appeal Tax Court v. Northern Cent. Ry. Co., 50 Md. 417; Appeal Tax Court v. Pullman Palace Car Co., 50 Md. 452; Kansas City, etc., R. Co. v. Severance, 55 Mo. 378; City of Dubuque v. Illinois Cent. R.R. Co., 39 Iowa, 56; Orange, etc., R.R. Co. v. Alexandria, 17 Grat. [58 Va.] 176."
A dependable authority supporting this view is Marye v. B. O.R.R. Co., 127 U.S. 117, 8 S.Ct. 1037, 32 L.Ed. 94. This case arose over an attempt by the state of Virginia to impose and collect a tax on movable property, engines, cars, etc., of a Maryland corporation. The supreme court of the United States held, in part:
"It is not denied, as it cannot be, that the state of Virginia has rightful power to levy and collect a tax upon such property used and found within its territorial limits, as this property was used and found, if and whenever it may choose, by apt legislation, to exert its authority over the subject. It is quite true, as the situs of the Baltimore Ohio Railroad Company is in the state of Maryland, that also, upon general principles, is the situs of all its personal property; but for purposes of taxation, as well as for other purposes, that situs may be fixed in whatever locality the property may be brought and used by its owner by the law of the place where it is found. If the Baltimore Ohio Railroad Company is permitted by the state of Virginia to bring into its territory and there habitually to use and employ a portion of its movable personal property, and the railroad company chooses so to do, it would certainly be competent and legitimate for the state to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon other similar property used in the like way by its own citizens. And such a tax might be properly assessed and collected in cases like the present where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according to the exigencies of the business. In such cases the tax might be fixed by an appraisement and valuation of the average amount of the property thus habitually used, and collected by distraint upon any portion that might at any time be found. . . . But looking at the statute under which the proceeding in question has been taken for the taxation of this property, we think it quite clear that it has no application to the rolling stock owned by the Baltimore and Ohio Railroad Company employed by it in the manner described in the operation of other railroads in Virginia. . . . It follows from this that it was not liable for the payment of the taxes, the collection of which was enjoined by the decree of the circuit."
See also by analogy Mayor v. Alexander, 10 Lea (Tenn.) 476; Franklin County v. Railroad, 12 Lea (Tenn.) 521; Bank v. Memphis, 101 Tenn. 154, 46 S.W. 557; Southern Express Co. v. Patterson, 122 Tenn. 279, 123 S.W. 353; State Board v. Holliday, 150 Ind. 216, 49 N.E. 14, 42 L.R.A. 826; Yost v. Transportation Co. (6 Cir.), 112 F. 746, 50 C.C.A. 511.
Appellant cites and relies upon American Refrigerator Transit Co. v. Hall, 174 U.S. 70, 19 S.Ct. 599, 43 L.Ed. 899, and other cases from the United States supreme court following the doctrine laid down in the Hall case. We think this (the Hall case) upholds the power of the state to enact such a statute as chapter 129, Laws of 1926, as not being violative of the Federal Constitution, but it is not authority that such a statute, when once enacted, may have a retroactive operation.
We have reached the conclusion that chapter 129, Laws of 1926, was not retroactive; and because of the nature of the property sought to be taxed, it was not taxable in Mississippi until the enactment of said chapter making it subject to assessment and taxation.
Under the view we take, it becomes unnecessary to discuss whether or not appellant was entitled to an execution for penalties provided by the statute for failure of the appellee to make reports. If appellee was liable for no taxes, it would follow it could not be assessed with the penalty.
The judgment of the court below is affirmed.
Affirmed.