Adams v. Capital State Bank

Thompson, Sp. J., delivered the opinion of the court. This suit was instituted by the revenue agent, a state officer, who, under the provisions of law (Laws 1894, 29-31, sec. 2), has power ‘ ‘ to proceed by suit . . . against all officers, county contractors, persons, corporations, companies, and associations of persons for all past due and unpaid taxes of any kind whatever, for all penalties or forfeitures, for all past due obligations and indebtedness of any character whatever owing to the state, or any county, municipality, or levee board, and for damages growing out of the violation of any contract with the state, or any county, municipality, or levee board.’’ And he is given a right of action in all cases where the state or any county or municipality or levee board has the right of action or may sue. It is averred in the bill of complaint that the city of Jackson levied an ad valorem tax of fourteen and one-half mills upon each dollar of the valuation of taxable property in said city for the municipal taxes of 1894, and thirteen mills for the year 1895; that the appellee was the owner of a large amount of taxable property in the city during each of said years, and that for the year 1894 it only paid six mills upon the dollar of the valuation of its property, and five mills for the year 1895. These payments, it will be noticed, equaled — 313 — the state tax for said years. The suit is to recover the balance of the taxes which, it is claimed, should have been paid by appellee for said years to the city. The ownership of property by the appellee and its assessment for each of said years is not disputed, nor is it denied by the appellee that its payments for said years were only of six and five mills respectively, as shown in the bill of complaint. The only contest is upon the levy of the taxes. For the year 1894 the levy of municipal taxes was, by ordinance, in the following words: “Section 1. Be it ordained ~by the mayor and ioard of aldermen of the city of Jackson, That an ad valorem tax of 14£ mills on the dollar is hereby levied on all property assessed for taxation in the city of J ackson, except banks and solvent credits, to be apportioned among the several funds for the purposes following: For general purposes, 5 mills on the dollar; for school purposes, 2f mills on the dollar; for light purposes, 2 mills on the dollar; for water purposes, 2-J mills on the dollar; for bond and interest purposes, -J mill on the dollar; for fire purposes, f mill on the dollar; for turnpike purposes, 1 mill on the dollar. Total, 14-J- mills. “Sec. 2. An ad valorem tax of 6 mills on the dollar is hereby fixed and levied on banks and solvent credits, to be apportioned to the several funds above mentioned, on the basis of a tax of a 14-J- mills levy. “Sec. 3. This ordinance shall be enforced from and after its passage. ’ ’ The levy of the city taxes for the year 1895 was by an ordinance in practically the same words, admittedly of the same legal effect, the only variance being in the date of passage and the sums levied. No point is made on the date of the passage of either, and the levy for 1895 was thirteen mills on property generally and five mills on banks and Solvent credits. It is contended by appellant that these ordinances are in legal effect a levy of fourteen and one-half mills and thirteen mills respectively upon the dollar of the valuation of all taxable — 314 — property in the city, and that the words £ £ except banks and solvent credits, ’ ’ in the first section, and the whole of the second section, in each of said ordinances, are mere surplusage, and that the court below should have treated and this court must treat the ordinances as if these words and the second sections were no part of them, and the maxim, “Utile per inutile non vitia,tur ” is invoked as applicable. It is argued that the concluding clause of the revenue act of 1894 (Laws 1894, pp. 21-25, sec. 3), which provides that ££no city or town shall impose or collect a greater tax on banks or solvent credits than the state tax for the same year, ’ ’ is unconstitutional and void, and that the municipal authorities, in the passage of the ordinances, must not be credited with an intention to levy one tax upon certain classes of property and a different one on all other classes; that all parts of said ordinances from which such an intention can be inferred, or is sought by appellee to be inferred, must be rejected as surplusage. This contention is denied, and thus the point for decision is presented. ' The question for this court is this: What was the true intent and purpose of the municipal legislative mind in the adoption of these ordinances? We do not think it justifiable to ignore that part of the first sections of the ordinances and the second sections, which we are asked to treat as surplusage. The whole of each of the ordinances must be considered in determining their meaning and legal effect. That surplusage may be rejected in construing a writing is certainly true, but the very definitions of the term exclude the rejection contended for here. Surplusage is defined in Anderson’s Law Dictionary as “ matter, in any instrument, foreign to the purpose; whatever is extraneous, impertinent, superfluous, or unnecessary.” Webster’s International Dictionary defines the term as used in law thus: ££ Matter which is not necessary or relevant to the case, and which may be rejected.” The Standard Dictionary so defines it as £ £ matter in any instrument that is not necessary to — 315 — its meaning, but does not affect its validity.” We have carefully read and considered each of the cases cited by appellant’s attorneys (to be found in the state library) applying the maxim ‘ ‘ Utile per inutile non vitiatur, ’ ’ and other decisions on the subject, but do not find warrant in any of them for its application to the question before us. If that part of the revenue act of 1894 the constitutionality of which is questioned, be valid, of course the levies were regular and made in appropriate language. If, however, the law be unconstitutional, then the ordinances, we think, must be construed as if the law had never been passed. Looking at the plain language of the ordinances, we cannot escape the conclusion that it was not the intent of the city authorities to impose the same rate of taxation on all classes of taxable property. When we consider that the municipal legislature was most likely endeavoring to carry the provision of the revenue law of 1894 into effect, we cannot doubt but that it was the design of the ordinances to impose a different rate of taxation on banks and solvent “credits from that which it imposed on other taxable property. Assuming the law in question unconstitutional, for the sake of the argument, and the whole of appellant’s contention is predicated of that idea, we have the authorities of the city of Jackson levying a municipal tax for'1894 of six mills on the dollar on the valuation of banks and solvent credits, and a tax of fourteen and one-half mills upon the valuation of all other taxable property; and for the year 1895 a like levy, variant only in amounts. In such case, however wrong in principle or even invalid the ordinances may be, can it be said that a taxpayer who has paid all taxes undertaken to be imposed upon his property, is in default for not having paid more thereon ? We think not. If it be that the municipal authorities were without power to levy a tax upon a class of property and another and greater tax upon the balance of the taxable property in the city, it would follow that the ordinances in question are — 316 — either entirely void, or that the aggrieved parties are those upon whose property the greater burden was sought to .be imposed. In this case we do not think that any greater municipal tax was levied upon banks and solvent credits than that which is shown to have been paid. A levy of a tax is absolutely indispensable to create a legal obligation to pay it. A tax must be due and unpaid; and this in case of taxation of property can only be shown by proof that the property was assessed, listed, and valued, and that the tax was in fact levied by competent authority. It follows from these views that the decree of the court below must be affirmed. We are asked by counsel on both sides to consider and decide the constitutional question which was argued before us. While the court would be pleased to comply with the request, yet we are constrained by our sense of duty to deny it. In the case of Thompson v. The Grand Gulf Railroad & Banking Co., 3 How. (Miss.) 240, Chief Justice Sharkey, in delivering the opinion of this court, said: “To determine between the constitution and the legislature is often embarrassing, and always demands a cautious and deliberate investigation. In the inquiry is involved the highest function of the judicial department. The acts of the legislature should be sustained, if possible; the constitution must be preserved inviolate.” While the obligation rests upon the courts to fearlessly see that the constitution is preserved, still wisdom requires that they should proceed in such matters cautiously, and we think an act of the legislature should never be held to be violative of the fundamental law unless the right of a litigant in the particular case before the court requires it to be done. We are fdrtified in this conclusion by the opinion of Judge Cooley, who, in his work on Constitutional Limitations, page 163, says: “While the courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. " They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both more — 317 — proper and more respectful to a co-ordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extrajudicial disquisition is entitled. In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record' also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable. ’ ’ Decree affirmed.