Opinion
No. 41531.
October 10, 1960.
1. Mandamus — citizen and taxpayer without legal authority to bring suit against State Tax Commission and others.
Citizen and taxpayer was without legal authority to bring mandamus action against the State Tax Commissioner, Attorney General, District Attorney, State Tax Collector, Governor, and others.
Headnote as approved by McElroy, J.
APPEAL from the Chancery Court of Yazoo County; C.D. WILLIAMS, Chancellor.
William L. Higgs, Jackson, for appellant.
I. This is a case calling for the exercise of the power of a court of equity and conscience.
II. Section 1109 of the Mississippi Code of 1942, providing for mandamus in the Circuit Court is properly construed to authorize a mandamus suit by a citizen and taxpayer to compel the Attorney General to bring mandamus against the chairman of the State Tax Commission, Income Tax Commissioner, to force collection of the State's lawfully due income taxes.
III. Section 1657 of the Mississippi Code of 1942, recompiled, is an alternative mandamus procedure authorized by statute for compelling the chairman of the State Tax Commission, Income Tax Commissioner, to collect the State's lawfully due income taxes.
IV. Additional possible parties and interests have been brought in so that a definitive determination may be had from this Court as to whether or not any remedy exists for the people of this state in this case.
Collation of authorities: Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; Board of Public Instruction of Dade County v. State ex rel. Hunter, 150 Fla. 213, 7 So.2d 105; Dantzler v. State Highway Comm., 187 Miss. 721, 193 So. 624; Florida Cent. P.R. Co. v. State, 31 Fla. 482, 13 So. 103, 20 L.R.A. 419, 34 Am. St. Rep. 30; Golding v. Armstrong (Miss.), 97 So.2d 379; Louis H. Liggett Co. v. Lee, 109 Fla. 477, 147 So. 463, 149 So. 8, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929, 85 A.L.R. 699; Moses v. Kearney, 31 Ark. 261; State v. Butler, 227 Ala. 212, 149 So. 101; State ex rel. Black v. Wilson, 158 Mo. App. 105, 139 S.W. 705; State ex rel. Johnson v. Sevier, 339 Mo. 483, 98 S.W.2d 677; State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566; State ex rel. Kirkwood School Dist. v. Herpel, 32 S.W.2d 96; State ex rel. Zoological Board of Control v. City of St. Louis, 318 Mo. 910, 1 S.W.2d 1021; Stietenroth v. Monaghan, 237 Miss. 305, 114 So.2d 754; Stockstill v. Pearl River County, 236 Miss. 619, 111 So.2d 413; Whitesides v. Stuart, 20 S.W. 245; Secs. 167(a), 168(a), United States Internal Revenue Code; Secs. 1109, 1657, 9220-09, 9220-26, Code 1942; Art. 157, Mississippi Income Tax Regulation 11; Art. V, Sec. 11, Florida Constitution; Sec. 1072, Alabama Code 1940; Sec. 33-101, Arkansas Statutes 1947; Secs. 64-101, 64-104, Georgia Code; Sec. 529.010, Missouri Statutes; Sec. 23-2001, Tennessee Code 1953; 21 C.J. 45 et seq.; 55 C.J.S., Sec. 182(a) p. 351.
John E. Stone, Jackson, for appellees.
I. The decision of this Court in Stietenroth v. Monaghan, 237 Miss. 305, is the law of the case. Stietenroth v. Monaghan, Chm. State Tax Comm., 237 Miss. 305, 114 So.2d 754; Stone v. Reichman-Crosby Co. (Miss.), 43 So.2d 184; W.T. Johnson v. Success Brick Mach. Co., 104 Miss. 217, 62 So. 4.
II. To enforce public rights the action for mandamus must be brought either by the Attorney General or the District Attorney. Birdsong v. Grubbs, 208 Miss. 123, 43 So.2d 878; Hancock County v. State Highway Comm., 188 Miss. 158, 193 So. 808; State ex rel. Trahan v. Price, State Auditor, 168 Miss. 818, 151 So. 566; Stietenroth v. Monaghan, supra; Sec. 1109, Code 1942.
III. Discretionary action on the part of an official may not be controlled by mandamus. Alex Loeb, Inc. v. Board of Trustees, Pearl River Junior College, 171 Miss. 467, 158 So. 333; Board of Suprs. Rankin County v. Lee, 147 Miss. 99, 113 So. 194; City of Clarksdale v. Harris, 188 Miss. 806, 196 So. 647; Clayton v. McWilliams, 49 Miss. 311; Cole v. State, 91 Miss. 628, 45 So. 11; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; Powell v. State Tax Comm., 233 Miss. 185, 101 So.2d 350; State v. Cameron, Trustees Oak Grove Consol. School Dist., 223 Miss. 50, 77 So.2d 716.
IV. Appellant does not show special damages to himself or bring this suit within the category of a taxpayer's suit. Hancock County v. State Highway Comm., supra; Stietenroth v. State Tax Comm., supra.
V. Rule-making is a function of the Tax Commission. California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542; State v. Tonella, 70 Miss. 701, 14 So. 17; Yazoo M.V.R. Co. v. Adams, 73 Miss. 648, 19 So. 91.
VI. Answer to appellant's brief. Board of Suprs. of Prentiss County v. Mississippi State Highway Comm., 207 Miss. 839, 42 So.2d 802; Golding v. Armstrong, 231 Miss. 889, 97 So.2d 379; State v. McPhail, 182 Miss. 360, 180 So. 387; Stietenroth v. Monaghan, supra; Wood, Sec. of State v. State ex rel. Gillespie, Dist. Atty., 169 Miss. 790, 142 So. 747; Secs. 1657, 4034, 9220-37, Code 1942.
Green, Green Cheney, Jackson, for appellee, Mississippi Power Light Co.
I. This case is moot and the appeal should be dismissed.
II. This Court having adjudged mandamus would not lie at law, Stietenroth v. Monaghan, 114 So.2d 754, Stietenroth may not circumvent by shifting into Chancery.
III. An assessment in accordance with the Income Tax Act, is a condition precedent to recovery.
IV. When the chairman of the Tax Commission, vested with exclusive and plenary jurisdiction hereasto, with the approval of the Attoney General, declines to make retroactive assessments, thereover his power is plenary and will not be questioned judicially.
V. When paramount war power authorizes creation of defense facilities, the states do not have thereover the sovereign power of taxation as to income arising therefrom. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204; Owensboro Nat. Bank v. Owensboro, 173 U.S. 664, 43 L.Ed. 850.
VI. Article 157, Regulation 11, valid under the constitution and laws of Mississippi.
Collation of authorities: Adams County v. State Educational Finance Comm. (Miss.), 91 So.2d 524; Bailey v. Emmich Bros., 204 Miss. 616, 37 So.2d 797; Bailey v. Montgomery Ward, 222 Miss. 544, 76 So.2d 813; Broadhead v. Monaghan, 238 Miss. 239, 117 So.2d 881; California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542; Cammarano v. United States, 358 U.S. 498, 3 L.Ed. 462; Collector v. Day, 78 U.S. 113, 20 L.Ed. 122; Commission of Internal Revenue v. Church, 335 U.S. 362, 93 L.Ed. 288; Craig v. Columbus Greenville R. Co., 192 Miss. 461, 5 So.2d 681; Craig v. Southern Natural Gas Co., 193 Miss. 76, 8 So.2d 230; Craig v. Stone, 194 Miss. 767, 11 So.2d 433; Cutrer v. State, 207 Miss. 806, 43 So.2d 385; Dameron v. Brodhead, 345 U.S. 322, 97 L.Ed. 1041; Dayton-Goose Creek R. Co. v. United States, 263 U.S. 456, 68 L.Ed. 388; Detroit v. Murray Corp., 350 U.S. 895, 100 L.Ed. 787; Dunn Construction Co. v. Craig, 191 Miss. 682, 2 So.2d 166; Enochs v. State, 128 Miss. 361, 91 So. 20; Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 88 L. Ed 333; Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 96 L.Ed. 1081; First Nat. Bank of Gulfport v. Adams, 258 U.S. 362, 66 L.Ed. 661; Flora v. United States, 4 L.Ed.2d 623; Gipson v. State, 203 Miss. 434, 36 So.2d 154; Glassburg v. Boyd (Del.), 116 A.2d 711; Graves v. New York, 306 U.S. 466, 83 L.Ed. 927; Gully v. First Nat. Bank of Meridian, 299 U.S. 109, 81 L.Ed. 70; Gully v. Lumbermen's Mut. Cas. Co., 176 Miss. 388, 168 So. 609; Haley v. State, 108 Miss. 899, 67 So. 498; Hattiesburg Groc. Co. v. Robertson, 126 Miss. 34, 88 So. 4; In re Rahrer, 140 U.S. 545, 35 L.Ed. 572; City of Jackson v. Mississippi Fire Ins. Co., 132 Miss. 415, 95 So. 845; Kentucky Whip Collar Co. v. Illinois Cent. R. Co., 299 U.S. 334, 81 L.Ed. 270; McClellan v. Montana-Dakota Utilities Co. (Minn.), 104 F. Supp. 46; McNeill v. Lee, 79 Miss. 455, 30 So. 821; M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Mississippi Power Light Co. v. Love, 201 Miss. 676, 27 So.2d 850; Monaghan v. Reliance Mfg. Co., 236 Miss. 462, 111 So.2d 225; Montana-Dakota Utlities Co. v. Northwestern Public Service Co., 341 U.S. 246, 95 L.Ed. 912; New York ex rel Rogers v. Graves, 299 U.S. 401, 81 L.Ed. 306; Odland v. Finley (Ohio), 38 F. Supp. 563; Ohio Oil Co. v. Porter, 225 Miss. 55, 82 So.2d 636; Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204; Owensboro Nat. Bank v. Owensboro, 173 U.S. 664, 43 L.Ed. 850; Parker v. Ellis, 4 L.Ed.2d 963; Phillips Chemical Co. v. Dumas School Dist., 4 L.Ed. 384; Price v. Price, 202 Miss. 268, 32 So.2d 124; Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436; Rohr Aircraft Corp. v. County, 4 L.Ed.2d 1002; Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752; Scott Building Supply Corp. v. Mississippi State Tax Comm., 235 Miss. 22, 108 So.2d 557; Seward v. Dogan, 198 Miss. 419, 21 So.2d 292; Sheldon v. Mississippi Cottonseed Products Co., 81 F.2d 169; South Carolina v. United States, 199 U.S. 437, 50 L.Ed. 261; State ex rel v. Board of Suprs. of Prentiss County, 234 Miss. 26, 105 So.2d 154; State v. Gulf, M. N.R. Co., 138 Miss. 70, 104 So. 689; State v. Rogers, 206 Miss. 543, 39 So.2d 533; State v. Southern Pine Co., 205 Miss. 80, 38 So.2d 442; State of New York v. United States, 326 U.S. 572, 90 L.Ed. 326; State Revenue Agent v. Tonella, 70 Miss. 701, 14 So. 17; Stietenroth v. Monaghan, 237 Miss. 305, 114 So.2d 754; Superior Oil Co. v. Beery, 216 Miss. 664, 64 So.2d 357; Texas Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 553, 51 L.Ed. 553; Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891; Thompson v. McLeod, 112 Miss. 383, 73 So. 193; T.I.M.E. v. United States, 3 L.Ed.2d 952; United Gas Pipe Line Co. v. Federal Power Comm., 181 F.2d 796; United Gas Pipe Line Co. v. Willmut Gas Oil Co. (Miss.), 97 So.2d 530; United States v. Detroit, 355 U.S. 466, 2 L.Ed.2d 424; United States v. Mersky, 4 L.Ed.2d 423; United States v. Western Pacific R. Co., 352 U.S. 59, 1 L.Ed.2d 126; Veazie Bank v. Fenno, 75 U.S. 533, 19 L.Ed. 482; Willing v. Chicago Auditorium Assn., 277 U.S. 274, 72 L.Ed. 880; Woodberry v. McClurg, 78 Miss. 831, 29 So. 514; Yazoo M.V.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Amend. V, XIV, U.S. Constitution; Secs. 1, 2, 33, 112, Constitution 1890; 12 U.S.C.A., Sec. 548; 15 U.S.C.A., Sec. 717 et seq.; 26 U.S.C.A., Secs. 167, 168; 49 U.S.C.A., Sec. 1 et seq.; U.S. Code Cong. Adm. News, 83rd Congress, 2d Sess. 1954 pp. 1557, 1566; Sces. 7716-11, 9220-03(2), 9220-25(2), 9220-25(7), Code 1942; Secs. 12(a) (8), 38, 43, Chap. 132, Laws 1924; Secs. 8, 32, 36, Chap. 120, Laws 1934; Sec. 11, Chap. 372, Laws 1956; Art. 162, Regulation 7 and Art. 157, Regulation 11, State Tax Commission; 27 Am. Jur., Sec. 63 p. 345; Griffith's Mississippi Chancery Practice (2d ed.), Secs. 192, 288.
The appellant, J.D. Stietenroth, instituted this action in his own name and as a citizen and taxpayer in the Chancery Court of Yazoo County, Mississippi, for the purpose of mandamusing the appellees, Noel Monaghan, State Tax Commissioner; New Hampshire Fire Insurance Company, Surety for Noel Monaghan; Joe T. Patterson, Attorney General for the State of Mississippi; Robert G. Nichols, Jr., District Attorney; Mississippi Power and Light Company; William F. Winter, State Tax Collector of the State of Mississippi; and J.P. Coleman, Governor of the State of Mississippi. Demurrers were sustained to the bill and amended bill for the reason that the complainant herein is without legal authority to bring this suit.
(Hn 1) The holding of the chancery court is based on the case of Steitenroth v. State Tax Commissioner, 237 Miss. 305, 114 So.2d 754, as follows: "Numerous questions have been raised and argued in the briefs of counsel, but the question confronting us at the outset is whether or not the appellant has the right to bring and prosecute this action. We think this question must be answered in the negative and since such conclusion is decisive of the case, we confine ourselves to that question only. Under Code Section 1109, supra, only the attorney general or district attorney has the right to bring a mandamus action in any matter affecting the public interest. The appellant contends that he is a `private person who is interested' and is, therefore, vested with the right to bring this suit. According to the appellant's own admission, however, he has suffered no legal injury other than that suffered by any other of the citizens and taxpayers of the State, and, therefore, the matter here involved is one affecting the public interest. This has been definitely decided by this Court in the case of State ex rel. Trahan, et al. v. Price, State Auditor, 168 Miss. 818, 151 So. 566, wherein the Court said:
"`Mandamus is regulated by statute, and, in matters affecting the public interest, the action must be brought on the petition of the state by its Attorney General or a district attorney. It having been determined that the relators have suffered no legal injury other than that suffered by any other of the great body of the citizens and taxpayers of the state, or, in other words, that the matter is one affecting the public interest only, they are without right to maintain the action individually or in the name of the State, but such suit could only proceed in the name of the State by its attorney general or district attorney. The fact, if it be a fact, that the relators were unable to secure action in the name of the state by its Attorney General or district attorney, does not aid them or give them any right to proceed otherwise in a mandamus proceeding.' (Emphasis ours)."
Therefore the judgment of the lower court is affirmed.
Affirmed.
Hall, P.J., and Lee, Holmes and Ethridge, JJ., concur.