150 So. 215 (Miss. 1933), 30690, Mayor and Board of Aldermen of City of Vicksburg v. Streckfus Steamers

Docket Nº30690
Citation150 So. 215, 167 Miss. 856
Opinion JudgeAnderson, J.
AttorneyVollor & Teller and R. M. Kelly, all of Vicksburg, for appellants. Brunini & Hirsch, of Vicksburg, for appellee. Argued orally by Landman Teller, for appellants, and by J. K. Hirsch, for appellee.
Case DateOctober 02, 1933
CourtSupreme Court of Mississippi

Page 215

150 So. 215 (Miss. 1933)

167 Miss. 856




No. 30690

Supreme Court of Mississippi

October 2, 1933

Division B

Suggestion Of Error Overruled, December 11, 1933.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by the Streckfus Steamers against the Mayor [167 Miss. 857] and Board of Aldermen of the city of Vicksburg. Judgment for plaintiff, and defendants appeal. Reverse and rendered.

Reversed, and judgment here for appellant.

Vollor & Teller and R. M. Kelly, all of Vicksburg, for appellants.

It is unquestioned and uncontrovertible that the charter of the appellant, under which it has been operating, is in full force and virtue, and is in all respects valid.

Adams v. Kuykendall, 35 So. 830, 83 Miss. 571.

Section 28 of the appellant's charter, articles 2 and 6 thereof, read as follows:

"Article 2. To levy and collect for corporation purposes, a privilege tax upon every business, trade, calling, employment or occupation, which they may designate, and to fix the amount of such tax, at their discretion: and to issue licenses therefor, for such time not exceeding one year, as they may determine, and to establish regulations governing their conduct, and enforce the same by proper penalties.

"Article 6. To license, tax and regulate all theatrical, circus or other exhibitions, shows and amusements within the city, and close up, suppress or abate the same by means of the police force, whenever, in the judgment of the board the morals or the interests of the city demand it."

By the foregoing grant of power, broad and comprehensive as it is, the legislature of this state has seen fit to vest in the appellant the right to levy such a tax as in the instant case was collected from the appellee, in the absence, of course, of constitutional inhibitions and subsequent repealing legislative enactments.

City of Corinth v. Crittenden, 94 Miss. 41, 47 So. 525; Lum v. City of Vicksburg, 72 Miss. 950, 18 So. 476.

General acts ordinarily do not repeal the provisions of charters granted municipal corporations.

1 McQuillin on Municipal Corporations (2 Ed.), p. [167 Miss. 858] 436; Wood v. Election Comrs., 58 Cal. 561; McCarty v. Deming, 51 Conn. 422; East St. Louis v. Maxwell, 99 Ill. 439; Covington v. East St. Louis, 78 Ill. 548, 552; Clarke, Dodge & Co. v. Davenport, 14 Ia. 494, 500; Bond v. Hiestand, 20 La. Ann. 130; Tierney v. Dodge, 9 Minn. 166; State ex rel. v. Severance, 55 Mo. 378, 386; Bodine v. Trenton, 36 N. J. L. 198, 201; Harrisburg v. Scheck, 104 Pa. St. 53; Powell v. Parkersburg, 28 W.Va. 698, 708.

The appellee is not a common carrier subject to regulation herein by Interstate Commerce Commission.

The burden of proof was upon the appellee to show in the court below, if it could, that it was within the purview of the act (Interstate Commerce Act, section 1, article 2, subsection c.).

The act itself excludes the appellee from regulation thereunder.

Ex parte Koehler (C. C. A. 1887), 30 F. 867, 869.

The acts upon which appellant imposed tax were intrastate in character and reality.

The excursions in question were conducted from and to the water front, belonging to, and within the corporate limits of, the appellant, and, at said water front, prior to boarding appellee's boat, admission was charged the passengers.

There was no interstate commerce.

The actual facts govern. For this purpose, the destination intended by the passenger when he begins his journey, and known to the carrier, determines the character of the commerce.

Otis Sprout v. City of South Bend, Indiana (1928), 277 U.S. 163, 72 L.Ed. 833, 48 S.Ct. 502, 62 A. L. R. 45.

Tax on intrastate business is valid though it incidentally, indirectly affects interstate commerce.

12 C. J. 103, 104; Telegraph Co. v. Adams, 71 Miss. 565, 14 So. 39, 155 U.S. 688, 15 S.Ct. 268, 39 L.Ed. 311.

[167 Miss. 859] Brunini & Hirsch, of Vicksburg, for appellee.

The city of Vicksburg operates under a special charter granted by the legislature in 1857, and re-enacted in 1884.

At the time of the grant of the special charter to the city of Vicksburg, the city was permitted to fix the amount of such tax at their discretion. The limitation was a legislative enactment adopted years thereafter. The legislature may at any time limit, alter, enlarge or restrict the independent charter of any municipality within this state.

Section 2445, Code of 1930, is binding upon all municipalities whether operating under the municipal chapter, or an independent charter, since it comes within the terms of section 2623, Code of 1930.

It has been expressly held that cities operating under the code chapter could impose no privilege tax in instances where the state imposed none.

Greenwood v. Delta Bank, 75 Miss. 162; Kosciusko v. Textile Company, 139 Miss. 220.

We contend, that Pitts v. City of Vicksburg, 72 Miss. 181, points to the inevitable conclusion that when the question was squarely before the supreme court it would hold that the rule in the Greenwood case would apply, not only to municipalities operating under the code chapter, but would also apply to cities operating under an independent charter.

Section 2445 of the 1930 Code limiting municipalities to a privilege tax not to exceed fifty per cent of the state privilege tax levied upon the same callings, trades and professions is, so far as Vicksburg is concerned, simply a legislative declaration of the law declared in the Pitts case.

The city of Vicksburg seems to take the position that if it is not permitted to exact a privilege tax on those callings not enumerated in the State Privilege Tax Act, then the legislature has repealed section 28 of article [167 Miss. 860] 2 of Vicksburg's charter. Quite to the contrary. No attempt was made by the legislature to repeal the power granted to a city under its independent charter, but a limitation or restriction was placed thereon. No necessity existed for a repeal. The city of Vicksburg was granted the right to exact privilege taxes, but the legislature limited the city to fifty per cent of the state's charge.

Smith v. Vicksburg, 54 Miss. 615.

The power to restrict is not the power to destroy; the power to restrict is not the power to prohibit.

Dart v. Gulfport, 147 Miss. 534.

"To 'restrict' is to restrain within bounds; to limits; to confine."

4 Words & Phrases (2 Ed.), p. 364.

No attempt was made by the legislature to repeal any of the provisions of the charter of Vicksburg, but was simply restricting or limiting the city under its charter. We, therefore, conclude that section 2445, Code of 1930, applies to the city of Vicksburg.

The city of Vicksburg, operating under an independent charter, may not exact a privilege tax in instances where no privilege tax is enacted by the state of Mississippi.

The privilege tax exacted was a burden upon interstate commerce.

Article 1, section 8, clause 3 of the Constitution of the United States.

Congress has sole and exclusive power over interstate commerce by virtue of the constitutional grant.

New Mexico v. Denver Railroad, 203 U.S. 38.

The state has no power to regulate, prohibit or burden interstate commerce.

Rosenberger v. Pacific Express, 241 U.S. 48.

The transportation of persons is commerce.

United States v. Joint Traffic Association, 171 U.S. 505.

[167 Miss. 861] If the tax is a burden upon interstate traffic such tax is void.

Gibbons v. Ogden, 22 U.S. 1.

Transportation is essential to commerce and every obstacle to it or burden laid upon it by legislative authority is regulation.

H. & S. J. R. Co. v. Husen, 95 U.S. 465; Gloucester Ferry Company v. Pennsylvania, 114 U.S. 196; Baltic Min. Co. v. Massachusetts, 231 U.S. 68, 82, 34 S.Ct. 15, 58 L.Ed. 127 (aff. 207 Mass. 381, 93 N.E. 831, 212 Mass. 35, 98 N.E. 1056, Ann. Cas. 1913C, 805).

It is settled from the beginning, and too elementary to require anything but statement that speaking generally the states are without power to directly burden interstate commerce.

Rosenberger v. Pacific Express Co., 241 U.S. 48, 50, 36 S.Ct. 510, 60 L.Ed. 880.

A privilege or license tax comes within the prohibited regulation.

Adams Express Co. v. Ohio State Auditor, 165 U.S. 185; Ferry Company v. State, 101 Miss. 65; McNeely v. Natchez, 4 F.2d 899.

Nor can the city of Vicksburg find any consolation in the fact that the excursions made by this boat began and ended within the state of Mississippi. In the first place the testimony is undisputed that by reason of the size of the boat, even if the commanding officer had desired to remain entirely within the waters within the territory of the state of Mississippi, he could not have done so. The testimony further showed a constant passing from one side of the Mississippi River to the other, in and after leaving the Yazoo Canal, and in doing so, the transportation was from one state to another.

To bring the transportation within the control of the state as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the state.

Hanley v. Kansas City Southern Railway Company, 187 U.S. 617; Missouri Pacific Railroad Company v....

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