The Attorney General and the state auditor of public accounts, brought suit against the City Bus Company for the mileage tax on busses owned by it under subsection 3, of section 5, of chapter 126, Laws 1934, amending chapter 135, Laws 1932.
The case was tried on a statement of facts agreeing that the state of Mississippi has the inherent power to levy and collect taxes; that the Attorney General and auditor were duly elected and are qualified officers; that the City Bus Company is a corporation organized under the laws of Maine, and authorized to do business in Mississippi, and that, at all times between January 1, and October 1, 1934, the City Bus Company, appellee, owned and operated motor vehicles upon the public streets of Biloxi, Gulfport, Long Beach, and Pass Christian, municipal corporations in Mississippi, and also upon the public highways of the state, over regular routes and on regular schedules, transporting passengers and property for hire. The numbers of such vehicles and their seating capacity are agreed to, as are also the number of miles traveled by such vehicles in excess of 6,000 miles, and that the greater portion of the mileage traveled by such vehicles was upon the streets of the aforesaid municipalities. It was further agreed that said vehicles are used in lieu of street cars, which service had been abandoned because the roadbed therefor had been used in the construction of a sea wall under chapter 165, Code 1930 (section 6916 et seq.), and that said vehicles are being operated at a deficit, but that they serve a public *Page 620 need for transportation. It was further agreed that the appellee, the bus company, being assessed, has regularly paid taxes in large amounts in the municipalities of Gulfport and Biloxi, just as any other municipal taxpayer would do, and that said municipalities have, with their own funds, maintained the streets wherever said vehicles move in lieu of street cars, and, being operated with gasoline, have regularly paid the gasoline tax, the horsepower tax, and the gross weight tax, as well as other license taxes. It was further agreed that, prior to the commencement of its operation of motor busses on the aforesaid routes, the appellee obtained a certificate of convenience and necessity from the State Railroad Commission.
Chapter 126, section 1, Laws 1934, defines various terms used in the act. It defines "Commercial Motor Vehicles" as including all motor vehicles used for the transportation of property or passengers for hire. The word "person" is defined to include any individual, firm, copartnership, joint adventure, association, corporation, estate, trust, or any group or combination acting as a unit. The word "bus" is defined to mean any motor vehicle designed for carrying passengers, except a school bus, which is defined to mean any motor vehicle engaged exclusively in carrying school children and teachers to and from school. It is provided in this chapter that where any bus has a seating capacity, or carrying capacity, fixed by the manufacturer, this shall be prima facie proof of such capacity, but that any motor vehicle, except as provided elsewhere in the act, may carry a 10 per cent greater load than that fixed by the manufacturer. The word "operator" is defined to mean any person, partnership, joint stock company, or corporation operating on the public highways of the state one or more busses or trucks as the beneficial owner or lessee; the word "driver" is defined as meaning the person actually driving such vehicle at any given time, and the term "motor vehicle" is defined as meaning all vehicles *Page 621 propelled by any other than muscular power upon the highways for the transportation of persons or property, but the same shall not include road rollers, street sprinklers, fire engines, police patrol wagons, and locomotives or cars operated on tracks. The term "common carrier by motor vehicle" is defined to mean any common carrier of persons and property operating one or more motor vehicles for compensation over fixed routes or between fixed termini. The term "permit carrier by motor vehicle" is defined to include any carrier of persons, either directly or indirectly, for compensation, operating motor vehicles, and all trucks of two and one-half tons' capacity or more, other than those excluded in subsection 12 of section 1, and in this exception are school busses and various others, such as those used in the transportation of agricultural, forest, or dairy products owned by the producer, and where they are not being transported exceeding fifty miles in their raw or unmanufactured state, or as lumber, and motor vehicles engaged in hauling sand, dirt, stone, etc., for road building purposes only, and those used by employees of the United States on official business, and those owned and operated exclusively by the United States, the state of Mississippi, or any subdivision thereof.
Section 2 of chapter 126, Laws 1934, levies a public tax for the privilege of using the public roads or streets, on each motor vehicle used for the transportation of persons in the amount of ten cents per horsepower generated by the propelling motor, and thirty-five cents per hundred pounds based on the gross weight of the vehicle, and on each vehicle classified as a bus, including taxicabs, a tax of fifteen cents per horsepower, and fifty cents per hundred pounds based on the gross weight of the vehicle.
Section 3, chapter 126, Laws 1934, amending section 3 of chapter 135, Laws 1932, provides that "every operator using the public highways of the state (except as *Page 622 provided in section 1 hereof), shall pay as herein provided as a reasonable compensation for the use of its highways, a fair proportion or fair contributive share of the expenses of maintenance and repair of such highways and the expense of the administration and enforcement of the laws governing the use of such highways, including the expense of administering this act." It is further provided in this section that no bus or truck shall be operated over the public highways in Mississippi without complying with the provisions of this act, and that the act shall apply to operators of busses or trucks, whether engaged in intrastate, interstate, or foreign commerce.
Section 4 levies a privilege tax upon various trucks and trailers, and subsection 3 thereof provides that on each bus, but not including taxicabs, in addition to the weight and horsepower tax imposed on all passenger motor vehicles, a tax shall be levied as follows: Seven passengers or less, seating capacity, thirty dollars; more than seven and less than fourteen, sixty dollars; fourteen and less than twenty passengers, ninety dollars; twenty and less than twenty-six passengers, one hundred and twenty dollars; and twenty-six passengers and over, seating capacity, one hundred and eighty dollars, and that this tax shall be paid annually in December of each year, or in case of commencement of business, but prior to such commencement, pro rata, according to the number of months remaining in the year, counting from the first day of the month when commencement is made, and shall be the minimum of taxes paid for the privilege of using streets and highways, provided, however, that any operator of busses may, at his election, where the annual schedule mileage of such bus does not exceed or equal twelve thousand miles, pay the proportionate part of the flat rate imposed by this section upon such bus that the annual scheduled mileage bears to twelve thousand.
Section 5 levies a mileage tax on each truck and trailer, *Page 623 loaded or empty, operating over the highways of the state, in addition to the tax levied in the preceding section, in the amounts set forth therein, for each mile of public highway traversed, by such vehicles, and on each bus engaged in the business of transporting passengers for hire, over the public highways of the state, in the following amounts: Seven passengers or less, one-fourth cent per mile; more than seven passengers and less than fourteen, one-half cent per mile; fourteen passengers and less than twenty, three-fourth cents per mile; twenty and less than twenty-six passengers, one cent per mile; twenty-six and over passengers, one and one-half cents per mile. The flat privilege tax imposed in the preceding section is said to be for the privilege of using the streets and highways to the extent of six thousand miles, except on busses it is said to be for the privilege of using the streets and highways to the extent of twelve thousand miles, or pro rata for the number of months for which the privilege is paid.
It is then provided in section 6 that all the foregoing taxes shall be increased on vehicles equipped with two or more solid rubber tires in an amount equal to twenty-five per cent. of the tax due hereunder, and shall be paid when other taxes are paid, and be subject to the same commission, and shall be deposited in like time and manner, and in the same fund with the principal tax.
The appellee claims that it is exempt from the tax here involved by virtue of clause (c) of subsection 12 of section 1, chapter 126, Laws of 1934, while the appellant contends that this section does not contain any tax exemption.
It is a familiar rule of construction that one claiming exemption from a tax imposed in general terms must point to some provision of law clearly exempting. It is clearly the intention of this act to levy a general tax on certain classes of motor vehicles on a mileage basis for the use of the highways. Section 3 of chapter 126, *Page 624 Laws 1934, provides that the tax shall be paid by every operator using the public highways of the state (except those set forth in section 1 thereof). To determine whether or not there are exemptions provided in section 1, it will be necessary to consider same. By turning to section 1, clause 3, paragraph (a), we find the exception to be a "school bus used exclusively as such." In paragraph (b) the words "school bus" are defined to mean one engaged exclusively in the business of carrying school children and teachers to and from school. In subsection 10 of section 1, defining "motor vehicles," the exception is for "road-rollers, street sprinklers, fire engines, fire department apparatus, police patrol wagons, and locomotives or cars operated on rails or tracks." These are not included in the provisions of the act.
Under the agreed statement of facts, it does not appear to me that the appellee comes within the definition included in subsection 11 of section 1, chapter 126, Laws 1934, providing that the term "common carrier by motor vehicle" includes any common carrier of persons and property, operating one or more motor vehicles, for compensation, over fixed routes or between fixed termini; nor within the definition of a "permit carrier by motor vehicle." The appellee operates a bus line for hire covering an extensive distance, having a fixed termini, on a fixed schedule.
Whatever may have been in the minds of the Legislature in enacting the provisions of subsection 12 of section 1, clause (c), it cannot I think be construed to give an exemption from taxes imposed by subsection 3, of section 5, of chapter 126, Laws 1934, providing that "On each bus engaged in the business of transporting passengers for hire over the public highways of the state, whether loaded or empty, in addition to the weight and horsepower tax imposed, for each mile of public highway in the state traversed by such vehicle, the following amount shall be paid," etc. This imposes the tax here *Page 625 involved, and it does not contain any exemption to the appellee, as held to exist by the court below.
It is argued that the Legislature must have had in mind the exemption of some of the motor vehicles involved, because of the provisions therein (except as provided in section 1 hereof). As stated above, section 1 exempts school busses and motor vehicles, etc. It is also argued that this court construed the act to give the exemption claimed in the cases of Hudson v. Stuart, 166 Miss. 339,145 So. 611, and State ex rel. Rice v. Evans-Terry Co.,173 Miss. 526, 159 So. 658, in which it was contended by the party sought to be taxed that such tax was void because certain other parties were exempt from it operation. In these cases it was argued that certain motor vehicles were exempt from the tax by reason of clauses (a), (b), (c), (d), and (e), of subsection 12 of section 1, chapter 126, Laws 1934. It was held that was true, but it was a proper classification and did not render the statute unconstitutional because of unequal protection, or denial of due process, of the law. In the case of State of Mississippi ex rel. Rice v. Evans-Terry Company, supra, an appeal was taken to the Supreme Court of the United States (296 U.S. 538, 56 S.Ct. 126, 80 L.Ed. 383), but that court declined to review the decision, manifestly on the ground that the classification was permissible. Consequently those cases are not authority for the exemption here claimed.
The case at bar appears to be the first case presented where an operator of these motor vehicles seeks an exemption, and we are therefore confronted now, for the first time, with the duty of construing the statute in this respect. So construing it, I do not think the appellee is entitled to the exemption from taxes.
We are not now called upon to say whether instrumentalities of the state or of the federal government are exempt, or whether farmers, or those hauling the products of farms, or of lumber are exempt *Page 626 from the tax. That question is not here presented, and it will be time enough to decide that question when it is properly presented; and it will require consideration of the full scope of the chapter to decide it.
The brief on behalf of the state proceeds on the theory that motor vehicles used by employees of the United States on official business, while exempt from the tax, are exempt, not by reason of subsection 12, but because it is beyond the power of the state to tax such vehicles. That question is not here involved, and will not be decided until a proper case shall be presented. But the state seems to be attempting to show that it cannot tax them for want of power. It is stated in a brief by one of the amicus curiae that under the case of Tirrel v. Johnston, 86 N.H. 530,171 A. 641, a state can tax for facilities furnished the government, and that this case was affirmed in 293 U.S. 533, 55 S.Ct. 238, 79 L.Ed. 641. But, as just stated, we are not now called on to express an opinion on that subject.
I do not find any act that provides exemption for the appellee from the taxes imposed, and I am of the opinion that it is not exempt therefrom.