Gulfport & Mississippi Coast Traction Co. v. Robertson

Smith, C. J., delivered the opinion of the court. The appellee instituted three suits against the appellant in the court below to recover from it privilege taxes which he alleges the appellant should have paid for the years 1915 to 1920, inclusive, under section 3874, Code of 1906 (section 6590, Hemingway’s Code) and chapter 104, Laws of 1920, and for the damages imposed by section 3901, Code of 1906 (section 6630, Hemingway’s Code), for the failure [329] to pay a privilege tax (luring the month in which it becomes due. These suits were for the benefit of the state, the city of Gulfport, and the city of Biloxi, and as they involve the same facts and questions of law they were consolidated by agreement and submitted to the court to be decided without a jury on an agreed statement of facts. After hearing the cause the court below rendered a judgment for the ap-pellee in accordance with his demand, except that it refused to award him damages for the appellant’s failure to pay the taxes when due. From this judgment there is both a direct and cross-appeal; the direct appeal being by the defendant and the cross appeal by the plaintiff in the court below'. The agreed statement of facts is quite lengthy, but it appears therefrom, in substance, that the appellant is operating an interurban railroad along the Mississippi Coast, connecting and passing through several towns and cities, among which are the cities of- Gulfport and Biloxi. These towms and cities are connected by a public road which runs a short distance from the beach between Avhich and the beach runs the appellant’s road on its own private right of way. Between these towns and cities the appellant’s cars stop at regular stations which have been designated by the appellant, the convenience of persons living along the public road having been taken into consideration by it in selecting these stations. The appellant’s cars are ordinary electric trolley cars, three of which are for freight and the others for passenger traffic, the bulk of its traffic being the carrying of passengers. Within the limits of the cities of Gulfport and Biloxi the appellant’s road is laid p’artly in the city streets and partly on its own private right of way, but -within' the city limits its entire road, that laid in the streets and that on its own private right of way, is devoted to the performance of the ordinary functions of a, street railroad, that is to say to the facilitation of the passage of persons from one point in the city to another. During all of the years for which the tax is sought to be collected there has been in force in each of these cities an [330] ordinance imposing a privilege tax on each business conducted therein of 50 per cent, of the privilege tax imposed thereon by the state. Prior to and during each of these years the appellant’s road was classed by the State Bail-road Commission as a third class railroad, and the appellant paid to the state for each year a privilege tax of ten dollars per mile, imposed by the state for operating such, a road; and to the city of Gulfport for each of the said years, and to the city of Biloxi for the years 1915 to 1919, inclusive, five dollars for each mile of its road within the city limits for the privilege of operating such a road. The recovery sought and awarded is for the difference between the privilege tax paid by the appellant and that which the appellee claims it should have paid under the statutes here-inbefore inferred to. Section 3874, Code of 1906 (section 6590, Hemingway’s Code), imposes a privilege tax “on each street car company operating a line, on e’ach mile or fraction thereof, twenty dollars,” and was amended by section 60, chapter 104, Laws of 1920, so as to impose a privilege tax “on each individual, firm, or corporation operating a street or interurban car line, on each mile or. fraction thereof, thirty dollars.” In Gulfport & Mississippi Coast Traction Co. v. City of Biloxi, 125 Miss. 626, 88 So. 173, it was held that this appellant is operating a street and interurban railroad, from which it follows that the appellant is due the tax sought to be collected under chapter 104, Laws of 1920, to the state on the total mileage of its road and to the city of Gulfport on the total mileage thereof Avithin the limits of the municipality, no recovery being sought under this statute for the city of Biloxi, so that we are concerned here only Avith the question of the appellant’s liability under section 3874, Code of 1906 (section 6590, Hemingway’s Code). “A street railroad is, as the name signifies, a railroad on a street to facilitate its use as a way for persons to [331] pass from one point to another in a city or through it.” 25 R. C. L. 1114. Interurban railroads are of recent origin and are “a sort of hybrid, having in some respects the characteristics of the ordinary railroad, and in others those of the street railroad. Within the limits of the cities which they enter they usually pass along the streets, and perform the ordinary functions of street railroads, stopping where desired to let passengers on or oil, and serving the public need for local street travel. Outside the cities, on their way from one city or town to another, they frequently travel upon a roadway obtained from private persons, not upon a public road, and stop, as in case of ordinary railroads, only at stations established by them for that purpose.” S. F. & S. M. Electric Ry. Co. v. Scott, 142 Cal. 222, 75 Pac. 575, 2 Words and Phrases, Second Series, p. 1169. That portion of such a road which traverses the streets of a city or town and performs therein the functions of a street railroad is and must be classed as a street railroad, but that portion of it which does not perform such function is not and cannot be classed as a street railroad. Jeffers et al. v. Annapolis (Md.) 68 Atl. 361. The evident purpose of section 3874, Code of 1906 (section 6590, Hemingway’s Code), is to impose the tax on each mile or fraction thereof of the company’s street car line, from which it follows that under that statute the appellant can be taxed only on that portion of its road that can be classed as a street railroad. As hereinbefore stated, as we understand the agreed statement of facts, that portion of the appellant’s road within the municipalities which does not traverse a street performs the ordinary functions of a street railroad, and consequently must be classed as a portion of its street railroad. 25 R. C. L. 1118. It follows from the foregoing views that the court below committed no error in awarding a recovery of the taxes alleged to be due the municipalities, but should not have permitted a recovery for tin' state' on the appellant’s' total [332] mileage except for tlie year 1920, and for the other years should have limited the recovery to its mileage that comes within the classification of a street railroad. Section 3901, Code of 1906 (section 6630, Hemingway’s Code), on which the cross-appeal is based, provides that: “All persons or corporations liable for privilege tax who shall fail to procure the license during the month in which it is due shall be liable for double the amount of the tax, and it is hereby made the duty of the tax collector to collect the amount, issue a separate license therefor, and to indorse across its face the words ‘collected as damages.’ ” While the appellant paid a privilege tax and procured a license, the tax paid and the license procured were not for operating a street railroad, but for the privilege of operating an ordinary third class railroad, and since its good faith in procuring the wrong license can afford the appellant no protection (Brittain & Henry v. Robertson, State Revenue Agent, 120 Miss. 684, 83 So. 4), the court below should have awarded the appellee the damages imposed by the statute. Reversed and remanded.