author: CULPEPPER, Judge.

text:
    James A. RICHARD, Plaintiff and Appellant, v. GRAND MARIE VEGETABLE PRODUCERS COOP. et al., Defendants and Appellees.
    No. 5790.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.

      White & Pitre by Marion Overton White, Opelousas, for plaintiff-appellant.
    Lewis & Lewis by John M. Shaw, Opelou-sas, for defendants-appellees.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

Plaintiff appeals from a judgment denying workmen’s compensation benefits. He alleges residual disability resulting from an injury to his eyes. While working as a common laborer for the defendant, Grand Marie Vegetable Producers Coop., he was riding as a passenger in a truck hauling sweet potatoes. The truck collided with another vehicle and overturned. Gasoline spilled all over plaintiff and got into his eyes. He suffered no injury to any other part of his body.

The substantial issue is whether plaintiff has any causally connected residual disability beyond the two weeks that benefits were paid.

On the date of the accident, November 17, 1973, plaintiff was taken to the Rapides General Hospital in Alexandria, Louisiana, where his eyes were rinsed, medication applied, and plaintiff was released. Plaintiff returned to his home in St. Landry Parish and was seen by Dr. Kenneth C. Lafleur, a specialist in ophthalmology, on November 26 and December 6, 1973. On the latter date, this physician released plaintiff and wrote a report stating he found no residual damage secondary to gasoline having entered plaintiff’s eyes.

Dr. Perry Lee Fisher, a general practitioner in Opelousas, also examined plaintiff on December 7, December 10 and December 21, 1973. Dr. Fisher found no evidence of injury to the eyes and diagnosed “malingering”.

Dr. D. K. Harmon, an ear, eye, nose and throat specialist in Opelousas, examined plaintiff on January 2, 1974. He found 20/80 vision in each eye and slight scarring of the macular portion of the eye, i. e., the portion towards the back part of the eye that receives light. However, Dr. Harmon said that cause of this condition was undetermined. He did not relate it to the accident.

Dr. H. W. Ledoux, of Lafayette, examined plaintiff on January 24, 1974. He diagnosed a slight degeneration of the macu-lar portion of the eye but stated it was not related to the gasoline incident.

The plaintiff introduced into evidence reports of examination of his eyes at the Charity Hospital on February 4, 1974. These reports state that plaintiff had 20/80 vision in both eyes and that glasses were needed. The reports also noted “macular edema” but gave no opinion as to the cause of this condition.

The evidence further shows that on June 10, 1975 plaintiff took an eye test for a Louisiana driver’s license. His vision without glasses was 20/40 in each eye.

At the trial on October 8, 1975, plaintiff testified he had no trouble with his eyes before the accident, but that since the accident his eyes “burn” and he has to wear glasses. He also testified that at the time of the accident battery acid may have entered his eyes, but this was not alleged in his original petition and was not related to the doctors who examined him during the early stages of his treatment. Furthermore, none of the doctors stated they found any evidence of acid burns to the eyes.

The trial judge did not give written reasons, but it is apparent that after considering all of the evidence he concluded either that plaintiff had no disability or that he had failed to prove by a preponderance of the evidence that there is any causal connection between the accident and the condition of his eyes.

The applicable law is that in a workmen’s compensation case the plaintiff has the burden of proving disability and causal connection by a preponderance of the evidence, the same as in any other civil case. Prim v. City of Shreveport, La., 297 So.2d 421 (1974). In the present case there is a substantial evidentiary basis to support the decision of the trial judge that plaintiff failed in his burden of proof.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Warren J. MOITY, Plaintiff-Appellant, v. SWIFT AGRICULTURAL CHEMICAL CORPORATION, Defendant-Appellee.
    No. 5793.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused April 26, 1977.
    Davidson, Meaux, Onebane & Donohoe by Edward C. Abell, Jr., Lafayette, for defendant-appellee.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiff-appellant.
    Before HOOD, GUIDRY and FORET, JJ.
   FORET, Judge.

Plaintiff-appellant, Warren J. Moity, instituted this suit against Swift Agricultural Chemical Corporation alleging a breach of contract involving rye grass seed purchased by Moity from Swift having allegedly failed to germinate, resulting in various items of damage to Moity. The trial court granted judgment in favor of Moity in the amount of Three Thousand One Hundred Forty-Four and No/100 ($3,144.00) Dollars on February 28, 1975, but then amended the judgment to grant a portion of the recon-ventional demand of Swift against Moity in the total amount of Six Hundred Two and 22/100 ($602.22) Dollars, being the cost of items furnished to Moity by Swift which were unrelated to the rye grass crop. Both parties appealed.

Swift, in this appeal, maintains that the trial court committed manifest error in concluding that the defendant breached the contract to furnish fertilizer and seed that would perform as represented, and further that the trial court committed manifest error in finding as a fact that the ammonium nitrate burned or killed the rye grass seed in question. We agree on both assignments of error.

The record reveals that in the summer of 1973 plaintiff called defendant’s plant at Lewisburg, Louisiana, and booked some rye grass seed for the coming fall. On September 19, 1973, plaintiff requested that defendant mix the rye grass seed and fertilizer together and deliver to plaintiff for planting, plaintiff telling Aubrey Miller, Plant Manager for defendant, that he wanted grazing in two weeks, which, according to Miller, was impossible. According to Miller, at that time, a discussion took place between plaintiff and Miller wherein Miller advised plaintiff that it was too early to plant rye grass seed on an old sod pasture, and tried to discourage him from planting at that time. However, plaintiff insisted that he had “bought a bunch of cows” and he had to have grass to put them on to graze.

The record further reveals that on the afternoon of the 19th defendant commenced mixing rye grass seed and ammonium nitrate in the proportions which plaintiff and defendant had agreed upon, that is, four hundred pounds of ammonium nitrate to forty pounds of rye grass seed for each acre to be planted, for a total of one hundred twenty acres. While the record reveals that some memories are a little hazy on this point, the record does reveal, and this Court so finds that mixing the ammonium nitrate and rye grass seed commenced in the afternoon of September 19th, and except for an insignificant amount, all of the fertilizer and seed was spread in plaintiff’s field by the afternoon of September 21st.

About a week after the planting, plaintiff went to defendant’s plant in Lewisburg and filed a customer complaint form stating that his rye grass was not coming up. Plaintiff had several more discussions with defendant’s agents about the alleged problems, and subsequently this litigation ensued.

The trial judge handed down written reasons for judgment. This Court agrees with his findings that the defendant furnished certified, viable seed to the plaintiff, which was certified 95% pure. Further, the trial court correctly stated that plaintiff went into the cattle business unprepared, and that his losses were due as much to his inexperience, lack of foresight, and lack of planning, as to any other cause. However, this Court, from a review of the record and the testimony of expert witnesses, including two of plaintiff’s own witnesses, Dr. Lynn J. Deselle and Dr. Daniel P. Viator, qualified agronomists, cannot agree with the trial court’s finding that the ammonium nitrate “burned” or killed the seed, and consequently the seed did not germinate. The tests conducted by Dr. Deselle and his associate Dr. Viator, showed that the germination potential of the various samples of seed after 24, 48, and 72 hours of being mixed with the ammonium nitrate, was not appreciably affected under conditions similar to those which existed during the time of the year when plaintiff planted his pasture. These tests conducted by plaintiff’s experts repudiate the trial court’s finding that the ammonium nitrate killed or burned the rye grass seed, and accordingly we find that the trial court erred in its finding to that effect.

The overwhelming weight of the evidence from the expert witnesses is that plaintiff’s decision to plant his pasture at the time that he did, September 19, was entirely too early during the season to do so. Weather conditions are too warm for proper germination; plus, planting rye grass seed in an old sod pasture with summer grass growing therein, and at the same time fertilizing the pasture, will result in little or no germination of rye grass for the simple reason that the summer grass presently growing will continue to grow, and in fact grow even faster with fertilization. As a consequence, the germination and growth of the rye grass will be choked out by the summer grass and hence no stand of rye grass will be achieved. Plaintiff himself testified that he had been told by a county agent that early planting would adversely affect germination. In plaintiff’s deposition, which is of record, is the following testimony:

“Q. Did you ever talk to the county agent about how early you should plant rye grass?
A. Yes.
Q. And what did he say?
A. You’re better off waiting .until it’s cool, but I had a condition which was different.
Q. Okay, now, did he tell you why you should wait until it’s cool?
A. It will be best for germination.
Q. And what was your condition that was different?
A. I needed pasture, that’s why I wanted.
Q. That’s why you wanted to plant it earlier?
A. That’s why I wanted pasture early.
Q. But you knew that if the seed wouldn’t germinate, you wouldn’t get pasture, didn’t you? I mean you know enough about farming to know that.
A. Oh, without it germinating, that’s right. I think that is a fair conclusion.”

All of the experts agreed that October 15 is about the earliest time that it is practical to get a rye grass crop when rye grass is seeded over an existing pasture. William E. Monroe, a pasture specialist for the Cooperative Extension Service at L.S.U., summed up the situation as follows regarding the overseeding of rye grass on permanent pasture:

“Our recommendation is based on research work that has been conducted at LSU. We feel that there is an absolute must, and this must is the thing that we feel has caused more failures over the past years, and that is to make sure that you remove all the excess grass from the warm season crop prior to the time that you plant your cool season grass. This is the first consideration. The second consideration is the time of seeding, and based also on research work that has been conducted, we found that if you seed rye grass too early in the year, you lose complete stand simply because if you get rye grass up while the warm season grass is still active or still actively growing, you fertilize the rye grass, and .actually what happens you get a growth of your warm season grass crowding out your cool season grass, and when the frost comes to kill your warm season grass, then you have nothing left.”

For the foregoing reasons, this Court finds that the trial court erred in awarding judgment for plaintiff, Moity, and that judgment is reversed, and Moity’s suit is dismissed with prejudice.

Defendant, Swift Agricultural Chemical Corporation, had filed a recon ven tional demand for the amount of $3,152.22 for rice seed, ammonium nitrate and equipment for the planting and spreading thereof, and judgment is rendered in favor of Swift Agricultural Chemical Corporation and against Warren J. Moity for that amount, plus legal interest thereon from date of judicial demand. Plaintiff, Warren J. Moity, is cast for all costs of this appeal.

REVERSED IN PART, AMENDED IN PART, AND RENDERED.

      . Effective January 1, 1973, defendant’s corporate name was changed to “Swift Chemical Company.”


author: SMITH, Justice, GILLESPIE, Chief Justice,

text:
    Jack K. REED, Superintendent, Mississippi State Penitentiary v. Monroe H. EVANS.
    No. 49075.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Rehearing Denied Oct. 12, 1976.
    A. F. Summer, Atty. Gen., by James M. Ward, Special Asst. Atty. Gen., Jackson, for appellant.
    Ronald Reid Welch, Herman (Tex) Wilson, Jackson, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   SMITH, Justice,

for the Court.

The State of Mississippi appeals from the action of the Circuit Court of Sunflower County which would have required payment to appellee, Monroe Harold Evans, of $314.66 from State funds.

In 1973, while Evans was an inmate of Camp 8 of the penitentiary at Parchman, Camp 8 was made a “close confinement camp” under special rules and regulations. A “shakedown” of the Camp followed, in the course of which all personal property of the convicts was inventoried and removed. An electric fan, a portable radio, an electric stencil, several shirts, a coffeepot, a portable typewriter, and a radio tape player, were taken from Evans. An official receipt was issued to him for these articles. The receipt introduced into evidence, bears a stipulation “O.K.” and “not returned.” The record shows that these notations were made in the course of an investigation and do not indicate a return of the property to Evans.

All of the personal property, including that of Evans, was stored in the boiler room at the penitentiary. A few days later, the circumstances which had brought about the above measures, no longer existing, penitentiary officials undertook to return to the prisoners the articles which had been taken from them. It is stipulated in the record in this case that the radio, tape player and typewriter were not returned to Evans.

At the trial of the case the court found that the typewriter, radio, tape player and coffeepot had not been returned to Evans. The record makes it clear that these articles had disappeared while in official custody of penitentiary authorities and could not be found. There seems to be no question but that Evans was permanently deprived of his property through negligence on the part of penitentiary employees who failed to make any provision whatever for its protection from theft or loss. This is not controverted by the State.

On appeal there is only one assignment of error. The circuit court erred in directing payment to Evans of $314.66, the undisputed value of the property, from public funds appropriated by the State of Mississippi for the express purpose of operating the penitentiary since such an award is barred by the sovereign immunity of the State of Mississippi, the State’s consent to the suit not having been obtained.

This Court has said:
That an arm or agency of the state cannot be sued except by express statutory or constitutional authority has been too long and too well settled to be further debatable now,
(Smith v. Doehler Metal Furniture Co., 195 Miss. 538, 545, 15 So.2d 421 (1943).
In the case above cited [State Mineral Lease Commission et al. v. Lawrence et al, 171 Miss. 442, 157 So. 897 (1934)], the Court after stating the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except upon the express statutory consent of the state, as held in State v. Woodruff, 170 Miss. 744, 150 So. 760, therein declared that “It does not apply when the suit is against an officer or agent of the state, and the relief demanded by the suit requires no affirmative official action on the part of the state nor the affirmative discharge of any obligation which belongs to the state in its political capacity, even though the officers or agents who are made defendants disclaim any personal interest in themselves and claim to hold or to act only by virtue of a title of the state and as its agents and servants. Thus it will be found, as illustrative of what has been above said, that all the cases, wherein the rule of immunity from suit against the state, or a subdivision thereof, has been applied and upheld, are those which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require an appropriation or an expenditure therefrom, which being legislative in its character is a province exclusively of the political departments of the state. And in the less frequent number of cases where no money judgment is demanded, and the rule of immunity is still upheld, it will be found in them that the relief demanded would be, nevertheless, to require of the state or its political subdivision the affirmative performance of some asserted obligation, the nature of which, and the process of its discharge, belong to the state in its political capacity.”
[171 Miss. 442, 157 So. 898]. [State v. Sanders, 203 Miss. 475, 490-491, 35 So.2d 529, 532-533 (1948)].

In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the United States Supreme Court quoted Hamilton in Federalist No. 81:

“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting state, and to ascribe to the federal courts by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.” (134 U.S. at 13, 10 S.Ct. at 506, 33 L.Ed. at 846).

After quoting extensively from Madison and Marshall, the Court, in upholding the sovereignty doctrine, said:

It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that then under discussion.
The suability of a state, without its consent, was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. .
(134 U.S. at 14 — 16, 10 S.Ct. at 507, 33 L.Ed. at 847).

The Court quoted Chief Justice Taney in Beers et al. v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 529, 15 L.Ed. 991 (1858):

It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. . The pri- or law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the state consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the state, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this power the state violated no contract with the parties.” The same doctrine was held in Railroad Co. v. Tennessee, 101 U.S. 337, 339; Railroad Co. v. Alabama, 101 U.S. 832; and In re Ayers, 123 U.S. 443, 505, 8 Sup.Ct.Rep. 164 [31 L.Ed. 216].

(134 U.S. at 17-18, 10 S.Ct. at 508, 33 L.Ed. at 848).

And concluded:

To avoid misapprehension it may be proper to add that, although the obligations of a state rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the state consents to be sued or comes itself into court, yet, where property or rights are enjoyed under a grant or contract made by a state, they cannot wantonly be invaded. Whilst the state cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.
It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign state from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence. The legislative department of a state represents its polity and its will, and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent, (of which the legislature, and not the courts, is the judge,) never fails in the end to incur the odium of the world, and to bring lasting injury upon the state itself. But to deprive the legislature of the power of judging what the honor and safety of the state may require, even at the expense of a temporary failure to discharge the public debts, would be attended with greater evils than such failure can cause.
(134 U.S. at 20-21, 10 S.Ct. at 509, 33 L.Ed. at 849).

In Principality of Monaco v. The State of Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), the United States Supreme Court, through Chief Justice Hughes, quoted extensively from the Hans case, supra, and outlined five different questions of sovereign immunity under the Federal Constitution involving a State of the Union.

The Court distinguished suits brought against a State of the Union (a) by another State of the Union; (b) by the United States; (e) by a citizen of another State or by citizens and subjects of a foreign State; (d) by citizens of the same State or a federal corporation; and (e) by foreign states.

Under the Federal Constitution a suit against a State could be brought in the first two categories (a and b) in federal court without the consent of the defendant State but not in the last three mentioned categories (c, d and e). See generally consent to Suit Against A State, 42 A.L.R. 1464, 50 A.L.R. 208.

Evans has had outstanding representation in the case. The brief in Evans’ behalf reflects thorough research of the authorities and puts forward several ingenuous and attractive arguments. The case was also ably argued orally.

However, we are without power to grant the relief sought. In Ayres v. Board of Trustees of Leake County Agricultural High School et al., 134 Miss. 363, 98 So. 847 (1924), this Court said:

In conferring powers on the boards of trustees of various institutions and governmental agencies the authority to be sued is specifically given in some instances, while in others the Legislature has withheld this authority. Authority to be sued is no more necessary in the case of agricultural high schools than in other governmental agencies of the sovereign state where no such authority exists, and we do not think the grant of this power is necessarily implied from the phrase giving the trustees “full power to do all things necessary to the successful operation of the school.” Authority to be sued is not a necessary prerequisite to the successful operation of the school, and, since it is not clear that, in the statute now under review, the Legislature intended to surrender the immunity from suit enjoyed by these governmental agencies we do not think the statute should be extended by construction so as to do so. Only the Legislature can surrender this privilege of the sovereign state and its governmental subdivisions or agencies, and we do not think it has done so in any of the acts affecting the establishment, or the government and control of agricultural high schools.
(134 Miss, at 376-377, 98 So. at 850).
This Court has said further:
. We hold that the state cannot be made liable to suit out of implications gathered from a statute or any group of statutes, but the right to sue the state must be expressly granted by statute, without which express grant no allowance to sue the state exists.
[State v. Woodruff, 170 Miss. 744, 766, 150 So. 760, 762 (1933)].

A state agency is not liable for the negligence of its agents. Curtis v. Mississippi State Highway Commission, 195 So.2d 497 (Miss.1967).

Under the doctrine of sovereign immunity, the trial court was without power to require payment of the claim from state funds.

A judgment or decree against the state for the payment of money, although entered by its highest court, is not enforceable except by a legislative appropriation. If the case is clear, and there is no available defense to the liability, the court should enter the judgment, although it may be that at the time being it will meet with legislative disobedience. But in order to render such disobedience inexcusable, and therefore improbable, any such judgment should go to the Legislature as an unreserved and solemn recommendation by the court that the liability is fair and free from serious doubt, and that there are no valid defenses known to the law or recognized in equity which the court has failed to discern and to apply. If this were not the course of conduct to be pursued by the court in rendering money judgments against the state, it had as well not rendered them at all. [State v. Woodruff, 170 Miss, at 779, 150 So. at 766 (1933)].

As we have said, there was no defense offered in this case except the State’s sovereign immunity from suit. Otherwise, Evans would, under principles of natural justice be entitled to recover. On the basis of the record, it would appear to us that this may be one of those rare cases in which the Legislature might wish to make a special appropriation for the purpose of reimbursing Evans for his loss. This, however, is a matter within the province of the Legislature and is a matter exclusively for its determination.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

ON PETITION FOR REHEARING

GILLESPIE, Chief Justice,

for the Court.

In the petition for rehearing, Evans’ counsel relies solely on the case of Williams v. Walley, 295 So.2d 286 (Miss.1974), in which this Court stated as follows:

It is next contended that the board of supervisors is protected from suit by the doctrine of governmental immunity. The case of Owens v. Jackson Municipal Separate School District, 264 So.2d 892 (Miss.1972), relied upon by the board, does not apply to the present case. This is not a mere tort action but one to provide a remedy for a constitutionally guaranteed right. As already stated, when private property is taken without payment therefor, the courts are open to provide a remedy against the sovereign or any of its subdivisions. Otherwise section 17 of the Mississippi Constitution of 1890 would be meaningless. Section 17 guarantees the right, and section 24 of the Constitution assures that the courts are open to provide the remedy. 295 So.2d at 288.

The opinion of Walley stated, “This is not a mere tort action but one to provide a remedy for a constitutionally guaranteed right.” In that case, the public authorities removed a fence and took the top soil from land on which Walley had a lease and used the soil in building a public road. The public authorities not only took the property but took it “for public use.” The opinion in Walley, in discussing Section 17 of the Constitution of Mississippi, did not use the term “public use” but that was the basis of the decision. Section 17 provides in part: “Private property shall not be taken or damaged for public use, except upon due compensation being first made to the owner . .” (Emphasis added) Public use is used more than once in the section and it is the key word in the section.

In the present case, public officials took Evans’ property but they did not take the property for the purpose of using it for any public purpose. Therefore, as pointed out in the original opinion, the taking of Evans’ property constituted a tort, or at least the failure to return his property was tortious. But as noted in Walley, Section 17 is not applicable to a “mere tort” action.

For the reasons stated, Williams v. Walley, supra, does not apply to this case, and the Court may not give judgment against the State absent legislative consent.

PETITION FOR REHEARING CONSIDERED EN BANC AND DENIED.

All Justices concur.


author: PATTERSON, Presiding Justice,

text:
    Charles R. BRADY, Chairman, State Tax Commission, Petitioner-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Respondent-Appellee.
    No. 48955.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Rehearing Denied March 2, 1977.

      Joe D. Gallaspy, James H. Haddock, William N. Lovelady, Jr., Jackson, for petitioner-appellant.
    Watkins, Pyle, Ludlam, Winter & Stennis, L. Arnold Pyle, David B. Grishman, Warren V. Ludlam, Jr., Jackson, for respondent-appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   PATTERSON, Presiding Justice,

for the Court:

The Mississippi State Tax Commission brings this appeal from a decree of the Chancery Court of the First Judicial District of Hinds County. It held John Hancock Mutual Life Insurance Company was not subject to Mississippi state income tax upon interest from its mortgage loan investments within this state. The decree reversed an order of the Mississippi State Tax Commission of May 15, 1973, assessing income tax and interest of $228,481.19 against John Hancock Mutual Life Insurance Company on interest income for the taxable years 1969, 1970 and 1971 from loans secured by real property situated in this state.

The appellee, John Hancock Mutual Life Insurance Company, hereinafter Hancock, is a foreign corporation qualified with the State Insurance Commission to conduct life, health, accident and variable insurance business in Mississippi. It is not qualified with the Secretary of State or other agency to conduct a different business within the state. The mortgage investment and insurance activities of Hancock are separated into two divisions, but when combined, constitute the corporation. The Mississippi State Tax Commission, hereinafter Commission, contends the divisions of Hancock are interrelated and dependent upon each other because the premium income from insurance is invested into mortgage loans from which interest income is earned. This income is then employed by Hancock to service its insurance obligations and any surplus remaining is returned to its policyholders through dividends. We note that for two of the three years spanning this ease Hancock experienced a net loss from its insurance business within the state, but when the mortgage investment income was included, a net profit resulted.

Hancock acknowledges that an insurance company must receive income from investments for the conduct of its business. It maintains, however, that the investments secured by property within this state are separate and apart from its insurance business.

As part of its overall business the appel-lee makes loans to local residents secured by mortgages on real property within the state. These loans are closed, the deeds of trust are recorded and foreclosures, when necessary, are conducted within this state. A member of the local bar is substituted as trustee by Hancock to transact foreclosures. All notes, deeds of trust and mortgages are transferred to Hancock’s domicile in Massachusetts after the loans are closed and the deeds of trust are recorded in the county of the security.

Hancock maintains insurance offices and agents in the state. It engages a salaried employee who devotes his time exclusively to its mortgage lending business in Mississippi, Arkansas and Louisiana. This employee works from the appellee’s office in Memphis, Tennessee one or more days each week. However, since he resides in Cleveland, Mississippi, the Commission contends he utilizes his home as an office the remainder of the week for the appellee’s in-state mortgage lending activities. Hancock owned 300, estimated, Mississippi farm loans during the tax period in dispute.

Hancock’s residential and commercial loans secured by local property were transacted through Bridges Loan & Investment Company of Jackson, Mississippi for the time involved. Bridges was without restriction to conduct similar business with other investment companies. Its activities for Hancock were substantial and paid for by a percentage of annual interest collected.

For the years 1969, 1970 and 1971 Hancock paid no state income tax on the interest income earned from its mortgage lending activities in Mississippi. The Commission, then chaired by Arny Rhoden, pursuant to Mississippi Code Annotated section 27-7-23(l)(a) (1972) and 27-7-49 (1972), assessed the company $223,456.60 in income taxes for these years. The assessment was based upon a net investment in Mississippi for interest income of $2,235,604 in 1969, $2,184,941 in 1970 and $2,160,993 in 1971.

The parties agree the promissory notes are “intangibles” for tax purposes.

On appeal from the Commission’s order to the Chancery Court in a trial de novo [Mississippi Code Annotated section 27-7-73 (1972)] the court concluded:

The issue is simply whether the Commission’s assessment should be upheld under the theory that the promissory notes in question have acquired a “business, commercial or actual situs” within this state, or whether in accord with Hancock’s contentions, there is not a sufficient nexus to link evidences of ownership of intangible property with any such situs.

After stating the issue, the chancellor found, among other things:

It is axiomatic that an insurance company must make investments and receive income therefrom for the proper conduct of its business. .
Hancock makes mortgage loans to Mississippi residents, secured by real property within this state. Its lending activities are separate and apart from its insurance business. .

The court concluded the agreement of Hancock with Bridges was nonexclusive and that the method utilized by it in investing mortgage money was the same as other nonresident investors. It also determined the officials of the Tax Commission, as well as former officials, were for many years aware of the exclusion from tax of intangible income secured by property in this state prior to the present assessment.

In construing Mississippi Code Annotated section 27-7-23 (1972), designating the items of gross income of foreign corporations classified as derivative from sources within this state, the trial judge was of the opinion the section contained conflicting specific and general provisions necessitating a choice between the two to determine which had application. He concluded the specific portion of the statute to be:

Net income of nonresident and foreign taxpayers:
(1) In the case of foreign corporations or of individuals, partnerships, trusts or estates, not residents of the State of Mississippi, the following items of gross income shall be treated as income from sources within the state:
(a) Income from intangible property of any kind or nature, if the evidence of ownership has acquired a business, commercial, or actual situs in this state; . (Emphasis added.)

Thus it prevailed over the last sentence of Subsection (l)(a) which the court considered general and nonspecific. It follows:

There shall be reported any and all income from activities or transactions engaged in within this state for the purpose of financial profit or gain, whether or not the taxpayer is qualified to do business in this state, maintains an office or place of business, or the activity or transaction is in, or connected with, interstate or foreign commerce.

The trial court construed the first section to require evidence of business situs. It thereby rejected the Commission’s contention that the lands are protected by the laws of this state, the deeds of trust are of record in this state and the laws of this state protect the mortgagee and furnish the sole means of enforcing its lien. The basis for rejection was that the facts were insufficient to create a nexus between the security and the intangibles, the notes.

The trial court, in separate findings, held the evidence did not establish a business connection between Hancock’s insurance division and investment division within the state so that the income-producing intangibles could be taxed here.

Finally, it held that the Commission regulations were so long continued they had, in effect, the force of law because the legislature, aware of the regulations, had acquiesced therein by not enacting laws to the contrary.

We first address the trial court’s construction of the statute. In doing so we think the legislature’s intention must be determined by the total language of the statute and not from a segment considered apart from the remainder that the overall intention may be decided without adjudicating which of two provisions prevails. It is also proper in considering intent to use the ordinary meaning of words at the time and under the circumstances in which they were written. In Fortenberry v. State, 190 Miss. 729, 1 So.2d 585 (1941), we stated:

In considering the meaning and effect of a new and supplemental enactment, which by an express provision disclaims the purpose to repeal any existing law, there is, more than in the ordinary case, the duty of the court to take into consideration all the facts and circumstances leading up to the new enactment, the developments in the history of the times and the particular characteristics of the specific evil which the new and supplemental statute was designed to curb, .... (190 Miss, at 735-736, 1 So.2d at 587)

Regardless of whether the trial court was correct in finding the first portion of the statute was specific and prevailed over the latter and general portion of the statute, there remains the necessity of deciding if the construction placed upon the specific portion correctly reflected the legislative intention.

We observe the times, history and interpretations of the statute as it progressed to its present form to determine the real intention of the legislature. See Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768 (1935). The state’s first income tax law was enacted in 1912. Section 15(l)(a), Chapter 132, Laws of 1924, expressed the law as it was rewritten in pertinent part:

Section 15. (1) That in the case of foreign corporations . . . the following items of gross income shall be treated as income from sources within the state.
(a) . . . [IJnterest on bonds, notes, or other interest bearing obligations of residents, . . . provided, income from money loaned by . . foreign corporations . . . shall not be included as taxable income. (Emphasis added.)

The law was rewritten in 1934 and 1936 without material change in the provisions now pertinent.

The Commission’s contemporaneous interpretation of the statute, for administrative purposes, and part of its history appears in its Regulation Number 1 (1924), Article 166, as follows:

Nonresidents, foreign corporations, and citizens of foreign countries shall include as gross income from sources within the State all income of every sort derived from business done or property located within the State; except that interest on bonds, notes or other interest-bearing obligations of residents, corporate or otherwise, need not be included. (Emphasis added.)

The Commission’s Regulations for 1928, 1932, 1934 and 1937 remained the same. We observe the statute and regulations by excepting from the income of nonresidents the interest on residents’ notes or interest-bearing obligations, evidently led to the belief of a disparity between the assessment of interest income of domestic and foreign corporations.

A suit followed in 1938 for construction of Section 15(l)(a) above. This Court determined the legislature’s intention was that domestic and foreign corporations were to be treated equally. In Mississippi Cottonseed Products Co. v. Stone, 184 Miss. 409, 184 So. 428 (1938), cert. den., 306 U.S. 656, 59 S.Ct. 774, 83 L.Ed. 1054 (1939), we held by considering the statute in its entirety that the legislature intended, in enumerating the items of gross income of a foreign corporation, to use the word “to” in the statute instead of the word “by” and substituted “to” for “by” so that the reading of Section 15(l)(a) was:

[PJrovided, income from any loan to nonresidents or foreign corporations or citizens of a foreign country, shall not be included as taxable income (Emphasis added.)

As a result the Commission altered its interpretation- of the statute. Its Regulations in 1939, Article 245, read in part:

Nonresidents, foreign corporations, and citizens of foreign countries shall include as gross income from sources within the State all income of every sort derived from business done or property located within the State. (Emphasis added.)

This regulation concerning income of foreign corporations was carried forward in Regulation Number 7 (1942), Number 8 (1946) and Number 9 (1948).

It is apparent, as the trial court found, that after the Mississippi Cottonseed Products case, supra, the Commission gave literal application to the maxim mobilia sequun-tur personam, meaning movables follow the person. The Commission’s position prior to Mississippi Cottonseed Products was that interest on intangibles held by foreign corporations, secured by in-state real property, was not considered gross income for tax purposes because of the language of the statute. After the decision, the Commission concluded that such income must be included for tax assessment if derived from business done or from property located within the state. In practice, however, this meant that interest income from notes held out of state, though secured by in-state property, was not considered generated here for tax assessments because it was thought the income was produced at the place where the note was held.

An exception, largely theoretical, to this practice existed if there was a nexus sufficient to connect the intangibles with a “business situs” in Mississippi. These conclusions and practices of the Commission are not inconsistent with Jahier v. Rascoe, 62 Miss. 699 (1885); City of Vicksburg v. Armour Packing Co., 24 So. 224 (Miss.1898); and Gully v. C. I. T. Corporation, 168 Miss. 268, 150 So. 367 (1933), which hold that the situs of intangible property is generally the domicile of the owner. The cases acknowledge the difficulty of determining business situs, but conclude that it was, more or less, connected with a degree of permanence of location of the credits, or with a purpose to incorporate them when collected into the mass of property already in the state.

The difficulty in application of the exception did not pass unnoticed. In 1950 Henry N. Eason, Chief of the Division of Income Tax, and other officials of the Tax Commission, including the general counsel, appeared before a tax study committee of the legislature for the purpose of outlining recommendations for changes in the tax laws. Among those submitted were: That the income tax law be rewritten and that an amendment be made relating to the definition of “gross income received by a nonresident,” because the Income Tax Division had consistently held income from intangible property held out of state could not be taxed unless there was an in-state business situs. On October 4, 1950, Eason submitted a report to the Chairman of the Commission detailing its recommendation to the legislature. It was:

[This Section] related to nonresidents or foreign taxpayers. Subsection 1(a) recites the items of gross income which shall be treated as gross income within the State. I quote a part of that Subsection:
Insurance premiums, interest on bonds, notes or other interest bearing obligations of residents, corporate or otherwise; the amount received as dividends from domestic corporations, provided, income from any loan to nonresidents or foreign corporations, or citizens of a foreign country, shall not be included as taxable income, or from foreign corporations of which more than fifty percent of the gross income was derived from sources within the State. This language should be stricken from the statute for the reason that we cannot tax the intangible income of a nonresident unless the evidence of ownership has acquired a business situs within Mississippi. There might be substituted therefor, “Insurance premiums and income from intangibles, when the intangible property which produces the income has acquired a business situs within this State. . . . ” (Emphasis added.)

The next legislative session amended the Income Tax Law by rewriting Section 11, Chapter 402, Laws of 1952. It appeared as Section 9220-12, Mississippi Code of 1942, Recompiled, in part as follows:

(1) In the case of foreign corporations the following items of gross income shall be treated as income from sources within the State:
(a) Interest on notes or other interest-bearing obligations, . if the evidence of ownership has acquired a business situs in this state. (Emphasis added.)

Afterward, the regulations of the Commission continued to recite that income from intangibles held out of state was to be considered as having an in-state source if it was derived from services rendered, business done, or from property located within the state, i. e. a business situs.

The critical issue remained as before, what criteria were employed in determining business situs. The Commission’s attitude was perhaps best expressed by its Regulation Number 7 issued before the 1952 act and Regulations Numbers 10 and 11 thereafter repeating it. The regulation:

Intangible personal property has a business situs in this State if it is employed as capital in this State or the possession and control of the property has been localized in connection with a business, trade or profession in this State so that its substantial use and value attach to and become an asset of the business, trade or profession in this State. For example ... if a nonresident maintains a branch office here and a bank account on which the agent in charge of the branch office may draw for the payment of expenses in connection with the activities in this State, the bank account has a business situs here. (Emphasis added.)

This interpretation was consistent with the Commission’s policy for years. It maintained that a “business situs” required a degree of permanence evidenced by offices, agents, bank accounts or some such symbol. This premise was likely thought necessary to overcome the inference arising from the legal fiction of mobilia sequuntur personam as well as analogy to our case law. In the past we have held that promissory notes evidence the debt and deeds of trust evidence the security, and a mortgagee, until foreclosure, has only a chattel interest in the land because the mortgage is only a charge upon and not an interest in it. Buckley v. Daley, 45 Miss. 338 (1871).

The latest pronouncement of this rule is found in Baker v. Connecticut General Life Insurance Co., 196 Miss. 701, 18 So.2d 438 (1944), wherein it is stated:

The beneficiary in a deed of trust the character of the one here in question is not vested with the title to the land described therein. He has no estate in the land, and cannot convey it to another; he has an interest in it only to the extent that he can cause the trustee in the deed of trust to sell the land and apply its proceeds to the payment of the secured debt.

By whatever means the Commission was influenced to its interpretation of the statute, in simple application it meant that promissory notes secured by real property in this state when transferred to a nonresident owner had the effect of transmitting the source of income to the nonresident’s state. The “business situs” was thus indelibly stamped upon the state in which the intangible was held, thereby precluding income assessment in this state. The Commission’s response to inquiries compels this conclusion. A letter of October 3, 1957, from the Income Tax Division to United Benefit Life Insurance Company of Omaha, Nebraska, is typical. It follows:

Your income from policy loans is derived from promissory notes executed by the policy holders. These notes, being intangible property, have a situs at your domicile unless they have acquired a business situs elsewhere. To give your notes from Mississippi policy holders a business situs in this state I believe that they would have to be accepted in Mississippi, be physically located here, the payments thereon be received and accepted here and, generally, all matters pertaining to the making, collection and handling of such notes be under the full authority of a Mississippi office as if your investment department had been decentralized to that extent.

The statute, now Mississippi Code Annotated section 27-7-23 (1972) again received the consideration of the legislature in 1958 when it was amended to its present language. That part of present concern is:

(a) Income from intangible property of any kind or nature, if the evidence of ownership has acquired a business, commercial or actual situs in this state. . (Emphasis added.)

The legislative addition of “commercial or actual” preceding “situs,” had no effect upon the Commission’s assessment of income from intangibles.

The assistant to the Commission Chairman, H. I. Adcock, testified that he had been with the Commission since 1937 and that the 1958 act brought no change of policy toward intangible property held by nonresidents until a contrary position, the beginning of this suit, was taken in 1972.

Henry N. Eason was called by Hancock as an adverse witness and stated that he was Chief of the State Income Tax Division for many years preceding his retirement in 1965. He testified the Commission’s policy, when intangible property was owned outside the state though secured by local property, was not to assess such income for income tax and neither the 1952 or 1958 legislative acts altered this position.

Attorney Henry A. Fly was employed by the Commission from 1947 to 1961. His primary duties were with income and franchise taxes. He testified the Commission’s position was that notes held outside Mississippi, although secured here, did not have local business situs and interest therefrom was not taxable.

These positions were the same as expressed on January 5, 1953, through a certificate of overpayment executed by A. H. Stone, Chairman of the Commission, to the Auditor of Public Accounts, concerning a refund of taxes to Commonwealth Insurance Company. The certificate stated in explanation:

It is well established that a nonresident may not be taxed on intangible income unless the assets which produce the income acquire a business situs in Mississippi. .

The trial court concluded that interest income from intangibles held out of state could not be subject to income tax unless (a) the evidence of indebtedness was kept in this state, in which case it would have an actual situs, or (b) such interest income was employed as capital in this state, or (c) such interest income was localized in this state with the business of such nonresident or foreign corporation, or (d) such interest had become an asset of the business of the foreign corporation in this state. It was further held that the Commission’s policy, substantially as above, was well known to nonresidents and foreign corporations for many years prior to this assessment.

The issues presented are, whether the trial court correctly construed the legislature’s intention in amending the statute in 1952 and 1958, whether there was error in finding the decentralization of Hancock for the conduct of its business separated the divisions for income tax assessments and finally, whether long-continued administrative construction has the effect of law.

We are of the opinion the lower court erred in its construction of Mississippi Code Annotated section 27-7-23 (1972) as did the Commission prior to the assessment. The Commission’s recommendation to the legislature preceding the 1952 amendment referred to its inability to assess income from intangibles held by nonresidents. It specifically recommended:

. This language should be stricken from the statute for the reason that we cannot tax the intangible income of a nonresident unless the evidence of ownership has acquired a business situs within Mississippi. There might be substituted therefor, “Insurance premiums and income from intangibles when the intangible property which produces the income has acquired a business situs within this State. . . . ” (Emphasis added.)

The legislature reacted to the Commission’s plea, “we cannot tax the intangible income of a nonresident” by adopting the words “unless the evidence of ownership has acquired a business situs within Mississippi.” This language was transferred almost verbatim from the recommendation into the existing statute so that it read:

(1) In the case of foreign corporations .. . the following items of gross income shall be treated as income from sources within [this] state:
(a) [Interest on] . . . notes or other interest-bearing obligations, . if the evidence of ownership has acquired a business situs in this state. (Emphasis added.)

In our opinion the amendment expressed the legislative purpose of taxing income generated from out-of-state intangibles, secured here, by substituting “evidence of ownership” for the actual business situs concept previously thought essential provided such evidence had acquired an in-state business situs. It intended to deemphasize the importance the Commission had previously attached to business situs as a necessary element of the assessment. We are persuaded to this view by the words lifted from the recommendation as well as those suggested by it but which were rejected. The adoption of the suggested words, “insurance premiums and income from intangibles when the intangible property which produces the income has acquired a business situs within the state” would have continued income assessments contingent upon there being an in-state business situs with its attendant connotations of permanence, agents, bank accounts and capital. We think the legislature intended to remove such impediments to the collection of taxes from intangibles by replacing it with “evidence of ownership,” a less burdensome standard.

Incidental to the foregoing we have held the court’s duty in construing statutes is to give consideration to the purpose and the object to be accomplished so the real intention of the legislature may be reached. We stated statutes should be given a reasonable construction, and if susceptible of more than one interpretation, they must be given that which will best effectuate their purposes rather than one which would defeat them. Akers v. Estate of Johnson, 236 So.2d 437 (Miss.1970); Mississippi State Tax Comm’n v. Hinton, 218 So.2d 740 (Miss.1969); Thornhill, et al. v. Ford, 213 Miss. 49, 56 So. 23 (1952); Conard Furniture Co. v. Mississippi State Tax Comm’n, 160 Miss. 185, 133 So. 652 (1931); and State Bd. of Education v. Mobile & O. R. Co., 72 Miss. 236, 16 So. 489 (1895). Moreover, meaning must be given to the amending words as they mesh into the statute because they were legislatively chosen for definite purpose. In construing the statute to diminish the burden of establishing business situs and replacing it with evidence of ownership of the intangible, we are able to give meaning to the amending words consistent with the legislature’s purpose of collecting taxes, its real intention.

Unfortunately, the phrase “business si-tus” was retained in the statute thereby frustrating the legislative intent because the Commission’s practices continued as before. The Commission’s interpretation not only overlooked the amendment, but also the last portion of the statute, which it complemented, requiring all income from business activities within the state to be reported.

Undoubtedly, this construction led to the 1958 amendment which added the following emphasized words to the statute, “if the evidence of ownership has acquired a business, commercial or actual situs in this state.” This amendment reemphasized the legislature’s intention to assess income from intangibles through evidence of ownership by broadening it beyond a business situs. Again, the words “commercial” and “actual” were deliberately chosen by the legislature in its wisdom for an intended purpose.

This elicits the query, what evidence of ownership did the legislature intend by “commercial” or “actual” situs in this state? The logical response in giving meaning to the words to accomplish the legislative purpose must be, we think, the evidences arising from the recorded security, the deed of trust, because it has commercial meaning in that it is connected with business trade and traffic in general as well as actual situs in the place of its recordation. Not only does the recordation “evidence” the security, it evidences the ownership of the intangible and thus protects the beneficiary’s interest therein. It evidences also the nexus between the security and the promissory note for the business benefit of both the maker and the holder of the note.

This connection of security and debt, known to the legislature, springs directly from Mississippi Code Annotated section 89-7-3 (1972) which requires all deeds of trust whatsoever to be recorded to protect the beneficiary against the claim of subsequent creditors or purchasers. Section 89-5-17 directs that all assignments of indebtedness secured by a deed of trust be entered on the margin of the record and provides penalty for failure to do so. Section 89-5-21 requires the satisfaction of a deed of trust to be entered upon the record and again provides penalty for failure to do so. Section 89-5-37 mandates that the name of the beneficiary be disclosed in the deed of trust and provides penalty for failure to comply. Finally, Section 89-5-45 voids the substitution of a trustee in deeds of trust unless it appears of record in the office of the county where the land is situated.

We conclude the legislature intended by evidence of ownership to refer to the instrument actually used to describe the security for the intangible because it names the beneficiary, the mode and time of payment, the assignments, and substitution of trustees, if any, as well as the note’s satisfaction when paid, all of which “evidence” ownership. Moreover, when recorded, this evidence has an actual situs in the county of the security. We conclude the trial court erred in its construction of the statute because it defeated the legislative purpose. This gives recognition to the mortgagee’s interest in the security even though it only be a charge upon the security and not a vested interest in it. Indeed, the rudimentary genesis of interest income is a combination of the security and debt and not a separation of it. The legal fiction of mobil-ia sequuntur personam transferring the interest generating intangible to the domicile of a foreign corporation or nonresident must give way to the business reality that the security breathes life into the note and is inextricably embedded in it, defying such separation.

We are of the further opinion that the division of the corporation by Hancock did not separate the insurance and investment functions for income assessment purposes. Hancock’s argument appears paradoxical in that it contends on one hand that an insurance company must make investments and receive income therefrom for the conduct of its business and on the other that it is separated for tax purposes. But be this as it may, the evidence is overwhelming that Hancock has offices and agents conducting its insurance business within this state in substantial amount. It also reveals that for two of the three years spanning the assessments, the investments division income resulted in an overall profit for the corporation. It reflects also that the agents, and other personnel, when inquiry was made concerning loans, were instructed to direct loan applicants to its salaried investment employee for the conduct of this business. We are of the opinion the two divisions of Hancock are interdependent and related to each other for income tax assessments and that the trial court erred in finding they were separate and independent.

The finding that the administrative policy of the Commission had been consistent since 1924 until this assessment in 1972 is doubtless correct. The conclusion that the legislature knew or was presumed to have known of the policies is also supported in law. However, the trial court’s conclusion that the legislature intended to abide by the Commission’s interpretations because it did not define the term “business situs” was error. This determination overlooks the 1952 and 1958 statutory amendments which were designed to change the former constructions and practices so the income from intangibles would be taxed. We are of the opinion the construction for administrative purposes though continued was erroneous and does not have the force of law. In Commissioner v. Lake, 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743, reh. den., 356 U.S. 964, 78 S.Ct. 991, 2 L.Ed.2d 1071 (1958), it was held:

Prior administrative practices are always subject to change through exercise by the administrative agency of its continuing rule-making power.

It follows that if an administrative body has the authority to change its practices, they are also subject to change by judicial opinion or legislative enactment. In Barr v. Delta & Pine Land Co., 199 So.2d 269 (Miss.1967), we held the construction of a statute by those administering it is usually binding on them or their successors because the public relies upon it, but this did not mean that an administrative body was powerless to change its interpretation by a new rule under changed situation or varied circumstance. We also held that legislative enactment or court decision supersedes administrative construction which places it beyond repeal by subsequent administrative rule change so long as the statute remains substantially unchanged. In sum, we are of the opinion the amendments were properly construed by the Commission in 1972 when this assessment was made and that the trial court erred in invalidating it.

On cross-appeal Hancock argues the trial court erred in not finding the Commission’s assessment unconstitutional in that it transgresses upon the due process and equal protection provisions of Section 1 of the Fourteenth Amendment to the Constitution of the United States and Article 3, Section 14 of the Mississippi Constitution (1890) and impinges upon the interstate commerce provision of Article 1, Section 8, Clause 3, of the Constitution of the United States. We are of the opinion the cross-appeal is without merit in view of the holding in Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339 (1938), and our holding in Akers v. Estate of Johnson, 236 So.2d 437 (Miss.1970).

The decree of the chancery court is reversed and the order of the Tax Commission is reinstated.

REVERSED AND ORDER OF THE TAX COMMISSION IS REINSTATED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . . . . There shall be reported any and all income from activities or transactions engaged in within this state for the purpose of financial profit or gain, whether or not the taxpayer is qualified to do business in this state, maintains an office or place of business, or the activity or transaction is in, or connected with, interstate or foreign commerce.


text:
    Billy GRANT and wife, Opal P. Grant v. Tommy ESTESS, Individually and d/b/a Associated Builders.
    No. 49052.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Rehearing Denied Feb. 2, 1977.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellant.
    Cason Rankin, Carroll E. White, Tupelo, for appellee.
   Appeal from Chancery Court, Lee County; George F. Adams, Chancellor.

Before PATTERSON, P. J., and SMITH and LEE, JJ., and MICHAEL SULLIVAN, Commissioner.

REVERSED AND REMANDED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concurring.


text:
    Laverne DUNN v. W. I. HOLLOWELL, Superintendent of Mississippi State Penitentiary.
    No. 49535.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Rehearing Denied March 2, 1977.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., and Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Neshoba County; Roy Noble Lee, Judge.

Before INZER, P. J., and SMITH and WALKER, JJ.

AFFIRMED.

LEE, J., took no part.


author: SUGG, Justice, PATTERSON, Presiding Justice,

text:
    Willie B. THOMPSON, Jr. v. STATE of Mississippi.
    No. 49303.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Dale & Upton, Garland D. Upton, Columbia, for appellant.
    A. F. Summer, Atty. Gen., by Vera Madel Speakes, Sp. Asst. Atty. Gen., and Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

Defendant, Willie B. Thompson, Jr., was convicted of murder and sentenced to life imprisonment by the Marion County Circuit Court. After his indictment and before trial defendant was sent to the Mississippi State Hospital at Whitfield for a pre-trial examination to determine his mental competence. While at Mississippi State Hospital, he was referred to a physician for a cardiovascular examination whose report stated: “I would gain the impression that he might be slightly retarded.”

Defendant was examined by the staff at Mississippi State Hospital and the conclusion of the staff was reported by Donald C. Guild, M.D., Director of Forensic Psychiatry, as follows:

Mr. Willie B. Thompson, Jr. is a nineteen year old black male who was admitted to the maximum security unit at the State Hospital for evaluation and/or treatment with the charge of murder pending.
Mr. Thompson was seen by the full forensic staff on December 3, 1975 and his case was extensively discussed.
The staff voted to diagnose him Borderline Mental Retardation and felt that he was competent and responsible.
Mr. Thompson will be returned to the jurisdiction of the court.

The first question is whether the defendant understood his waiver of constitutional rights.

At defendant’s trial the state offered in evidence a confession signed by the defendant. Defendant’s attorney objected in this language: “We would object to its receipt into evidence on the main basis, that is, as to the voluntariness of it.” Following the objection a hearing was held outside the presence of the jury. M. S. Magee, an investigator for the Mississippi Highway Patrol, identified a waiver of rights signed by this defendant at 3:00 p.m. on January 23, 1975 and his confession signed at 3:55 p.m. on the same date. Defendant testified that he did not know what his rights were and did not understand that he was entitled to an attorney, that he did not have to answer questions, that an attorney would be appointed for him before questioning if he desired, that he was entitled to have an attorney present during his interrogation, that any statement he made could be used against him in court, or that he could stop the questioning at any time. At his trial he said he understood his rights because his attorney had explained his rights to him. This is a strong indication that he had the mental capacity to understanding^ waive his constitutional rights.

He also testified that one of the officers told him that if he would tell the truth they would help him in court. He said that none of the officers threatened him in any way. He said that he had a drivers license, having secured the same without taking a written examination, and had worked the last two years as a carpenter and on weekends as a filling station attendant. His duties included putting gasoline in vehicles, handling money and making change. He also testified about previous employment of hauling pulpwood and working at a “lumber place” where his duties consisted of stacking lumber and loading merchandise for customers. He had completed the eighth grade in school.

Following defendant’s testimony Magee denied that any of the officers offered to help defendant with the court if he would confess and stated that he thought defendant understood his rights as they were explained to him before the confession was made. During the questioning of defendant four officers were in the room at all times and two other officers were in the room part of the time. All of the officers were called and substantiated the testimony of the witness Magee. The evidence also showed that, after the confession was typed, a correction was made in the confession by the defendant who initialed the correction.

Following this testimony defense counsel renewed his objection to the introduction of the confession in the following language:

We now renew our objection and would observe to the Court that the testimony of this witness demonstrates conclusively that he lacks sufficient comprehension of the written and spoken language to know the difference between voluntariness and involuntariness and therefore renders any statement he signed involuntary as a matter of law.

The objection was overruled and the same testimony was then presented in the presence of the jury. Defendant was permitted to testify before the jury for the limited purpose of showing that he did not understand the waiver and that the officers had agreed to help him if he would give a statement.

We stated in Harvey v. State, 207 So.2d 108 (Miss.1968) that the state must show beyond a reasonable doubt that a confession of crime was made voluntarily before it may be introduced in evidence. We also observed that the general rule is that a confession of an insane person cannot be admitted because he cannot waive his constitutional rights against self incrimination. We further held that a defendant should offer proof of his incapacity at the time the state offers confession in evidence in the absence of the jury.

The confession of Harvey, an eighteen year old, who was shown to function at the level of an eight to twelve year old but whose ability to function decreased when he was upset, was admitted by the trial court, but we held the admission of the confession was error. There was testimony from experts that Harvey had an intelligence quotient of 60 and was suffering from brain disfunction or brain damage. Harvey had passed the eighth grade; however, his teacher testified that he was not capable of passing but was passed socially but not academically. Lay witnesses testified that he would crawl through windows when he visited them and that he usually had a pack of “alley dogs” following him.

Similarly in Dover v. State, 227 So.2d 296 (Miss.1969), we held that Dover’s confession was not voluntary beyond a reasonable doubt. Two of Dover’s brothers, his father and a sister testified that Dover was below normal in intelligence, was unable to read and write, was unable to progress beyond the second grade in school, was 45 years of age and, although he lived alone, they constantly saw to his needs. They admitted Dover owned and operated a truck but he had no drivers license. Experts testified that Dover had an intelligence quotient of 60 and was diagnosed as having moderate mental retardation or moderate mental defective range.

Unlike the facts in Harvey and Dover, there is no testimony in this case about the defendant’s intelligence quotient or the age level at which he functioned. There was no testimony, either lay or expert, showing any abnormal behavior on the part of the defendant. The trial judge had before him the medical report, the testimony of the officers and the testimony of the defendant. The judge had ample opportunity to observe the defendant during the trial, heard his testimony on motion to suppress the confession and again heard his testimony before the jury. The defendant gave sensible answers to questions propounded to him and from the record there is no indication that he had any problem understanding questions or giving sensible answers. The confession was properly admitted on the question of whether the defendant understood his waiver of his constitutional rights. Hancock v. State, 299 So.2d 188 (Miss.1974).

The next question about the confession is whether a, confession made after custodial interrogation following proper Miranda warnings is admissible when an accused had been subjected to a previous custodial interrogation where he was not given proper Miranda warnings.

Defendant was arrested about 8:00 a.m. on January 23, 1975 and questioned briefly concerning his connection with the murder without being given Miranda warnings. No inculpatory information was elicited from him during this questioning. Following a lapse of several hours he was questioned again beginning at 3:00 p.m. He was given proper Miranda warnings and following this questioning, signed a written statement confessing the murder.

The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), established the requirement that police officers must advise an accused of his constitutional rights prior to any custodial interrogation. Any information gained from questioning before advising an accused of his Miranda warnings is inadmissible at trial. One of the cases considered in Miranda was Westover v. United States, 384 U.S. at 494, 86 S.Ct. at 1638, 16 L.Ed.2d at 735 (1966). In Westover, the Court held that questioning of an accused by police officers without informing him of his constitutional rights rendered a subsequent confession to FBI agents of two other crimes invalid, even though the accused was advised of his constitutional rights by the FBI before making the confession. The Court in Westover felt that “the federal authorities were beneficiaries of the pressure applied by local in-custody interrogation” conducted without adequate warning to the accused of his constitutional rights before the interrogation by the police.

Westover was summarized in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) by the Court as follows:

In Westover, the petitioner was arrested by the Kansas City police at 9:45 p.m. and taken to the police station. Without giving any advisory warnings of any kind to Westover, the police questioned him that night and throughout the next morning about various local robberies. At noon, three FBI agents took over, gave advisory warnings to Westover, and proceeded to question him about two California bank robberies. After two hours of questioning, the petitioner confessed to the California crimes. The Court held that the confession obtained by the FBI was inadmissible because the interrogation leading to the petitioner’s statement followed on the heels of prolonged questioning that was commenced and continued by the Kansas City police without preliminary warnings to Westover of any kind. The Court found that ‘the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation’ and that the belated warnings given by the federal officers were ‘not sufficient to protect’ Westover because from his point of view ‘the warnings came at the end of the interrogation process.’ 384 U.S. at 496-497, 86 S.Ct. at 1639. (423 U.S. at 106, 96 S.Ct. at 327, 46 L.Ed.2d at 322-323).

In the present case although the defendant was questioned briefly following his arrest he made no inculpatory statement whatever. It was not until several hours later that the officers returned for the purpose of conducting a formal interrogation of the defendant. At this time, before the interrogation, the defendant was warned as required by Miranda and signed a waiver of his right to remain silent and to have an attorney present. The circumstances in this case are entirely different from those in Westover. The brief questioning of defendant following his arrest, produced no incul-patory information and in no way resembled the “pressure applied by the local in-custody interrogation” condemned in West-over. It did not preclude a later interrogation by the officers after the defendant’s Miranda rights had been explained to him and had been waived.

1 In Michigan v. Mosley, supra, the respondent was arrested as a suspect in certain robberies and made oral and written acknowledgment of Miranda warnings but declined to discuss the robbery, whereupon the officers ceased the interrogation. More than two hours later, after giving Miranda warnings, another officer questioned respondent about an unrelated murder. Respondent gave inculpatory statements which were used in his trial resulting in his conviction. The Michigan appellate court reversed on the ground that Miranda mandated a cessation of all interrogations after respondent had declined to answer the first officer’s questions. However, the Supreme Court disagreed with the Michigan Court and held that the admission of respondent’s inculpatory statement in evidence did not violate Miranda. Respondent’s right to cut off questioning was honored, the police having immediately ceased the interrogations about the robbery after respondent’s refusal to answer and having commenced questioning about the murder after a significant time lapse and after an additional warning had been given.

The United States Supreme Court, in its opinion, after setting forth the requirements of Miranda that interrogations must cease, stated:

This passage states that ‘the interrogation must cease’ when the person in custody indicates that ‘he wishes to remain silent.’ It does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his ‘right to silence’ can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize ‘any statement taken after the person invokes his privilege’ as ‘the product of compulsion’ and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.
It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent. (423 U.S. at 101-103, 96 S.Ct. at 325-326, 46 L.Ed.2d at 320-321).

Our case is akin to Mosiey in that both cases turn on whether Miranda creates a per se proscription of indefinite duration of further interrogation of a person in custody. In Mosley the question involved one who had expressed a desire to remain silent, while our case involves a confession obtained at a second custodial interrogation preceded by a proper Miranda warning following a previous custodial interrogation at which the accused was not advised of his constitutional rights as set forth in Miranda and where no inculpatory statements were obtained.

The Supreme Court of Louisiana considered this precise question in State v. Grothers, 278 So.2d 12 (La.1973), cert. den. 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 558 (1973) and stated:

The exclusionary rule announced in Miranda applies only where custodial interrogation produces some response to the defendant and the State seeks to introduce that response into evidence at the trial of the defendant. Miranda simply does not apply where there is custodial interrogation of the defendant and the responses obtained are not introduced in evidence by the State at the trial; Miranda formulated a rule designed to exclude evidence, but not to void convictions where fruitless custodial interrogation occurs in the absence of prior warnings.
In the instant case when the defendant was questioned at the house by the Constable without prior Miranda warnings he gave no response which was sought to be introduced at trial by the State. Therefore, Miranda could not be invoked because there was no confession or admission, which resulted from the questioning at the house, to exclude. We would certainly view the matter differently had the Constable actually allowed a confession or any other statement at the house, without giving the warnings, and then sought to cure the defective confession or statement by advising the defendant of the Miranda warnings and securing another confession or statement. (278 So.2d at 16).

In our case, when the defendant was questioned by the officers for about 30 minutes following his arrest without prior Miranda warnings, he made no inculpatory statements and none of his responses were sought to be introduced at his trial by the state. We are of the opinion that Miranda could not be invoked because there was no confession or admission to exclude which resulted from his first interrogation.

We took a different view in Brunson v. State, 264 So.2d 817 (1972) where an officer obtained a confession without giving the Miranda warning, and then sought to cure the defective confession by giving the Miranda warning and securing another confession. We held that Brunson’s second confession was not admissible.

We agree with the holding in Crothers; Miranda did not formulate a rule to exclude a confession obtained under the facts in this case.

AFFIRMED.

GILLESPIE, C.'J., INZER, P. J., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

PATTERSON, P. J., GILLESPIE, C. J., INZER, P. J., and SMITH, J., specially concur.

Before PATTERSON, SUGG and WALKER, JJ.

PATTERSON, Presiding Justice,

specially concurring:

I concur in the result of the majority opinion. I do so because there is no evidence this mentally retarded and youthful appellant was incarcerated and isolated so that incriminating facts could be garnered during the time of incarceration, but prior to the Miranda warning, so that it could be used as a device to induce the confession after the warning was given. The placing of an accused in unfamiliar surroundings without friend or attorney and without knowledge of his constitutional rights produces a situation that could be calculated to produce a confession as surely as physical abuse.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is stated:

Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, “Since Chambers v. Florida, 309 U.S. 227 [60 S.Ct. 472, 84 L.Ed. 716], this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” .

(384 U.S. at 448, 86 S.Ct. at 1614, 16 L.Ed.2d at 708-709).

Because there is nothing to indicate a deliberate design to induce an unconstitutional confession I do not dissent. I concur, however, without relying upon State v. Crothers, 278 So.2d 12 (La.1973), since I do not think it has application to the present circumstances inasmuch as it is addressed to the absence of statements taken during the period after arrest but prior to warning. I think this overlooks the premise that psychological coercion calculated to induce a confession is incapable of introduction into evidence. The opening pages of Miranda, supra, are enlightening on this point.

In sum, it is my opinion that better police practice requires the Miranda warning to be given at the time of first restraint of an accused and that recurrences of failure to warn will ultimately force the conclusion that unconstitutional advantage is gained by neglecting the warning which will eventually require reversal.

GILLESPIE, C. J., INZER, P. J., and SMITH, J., join in this opinion.

      . This question should never have arisen and would not if the officers had taken a few minutes to advise defendant of his constitutional rights following the simple procedure set forth in Miranda.

      . Compare Oregon v. Mathiason, - U.S. -, 97 S.Ct. 711, 50 L.Ed.2d 714, decided by the United States Supreme Court January 25, 1977.