Abbay v. Board of Levee Com'rs

• Decision Date: 21 December 1903
• Citation: 35 So. 426,83 Miss. 102
• Court: Mississippi Supreme Court
• Parties: RICHARD F. ABBAY v. BOARD or LEVEE COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA

35 So. 426

83 Miss. 102

RICHARD F. ABBAY v. BOARD or LEVEE COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA

Supreme Court of Mississippi

December 21, 1903

FROM the circuit court of Tunica county. HON. SAMUEL C. COOK Judge.

Abbay appellant, was defendant in the court below; the board of levee commissioners, appellee, was plaintiff there.

Section 3, c. 39, p. 102, of the laws of 1886, provides that for the purpose of paying off certain bonds and coupons, and then any other legal liability or indebtedness of the board, a tax or privilege is thereby levied (payable to the levee board), and it gives a list of privilege taxes levied--among others, one on persons selling vinous or spirituous liquors in less quantities than one gallon, $ 100; and on each store where the stock exceeds $ 2,000, $ 10. In 1894 the legislature passed another act (Laws 1894, p. 77, c. 78), which provided that "section 3 of an act approved March 16, 1886 entitled an act to amend an act to incorporate the board of levee commissioners, for the Yazoo-Mississippi Delta, and for other purposes, be and the same is hereby repealed." The second section of the act of 1894 is an exact copy of the third section of the act of 1886, except that in it there are 59 privilege taxes levied, when only 28 were levied in 1886 but the privileges on dramshops and general stores are the same in each act. In 1891 Abbay, appellant, was engaged in selling vinous and spirituous liquors in less quantities than one gallon in said levee district, and did not pay this privilege tax; and, beginning in 1893, he ran a general store in said district, and did not pay the privilege tax levied for same. In May, 1903, the board of levee commissioners for the Yazoo-Mississippi Delta brought the suit in this case against Abbay to recover these several privilege taxes, and 100 per cent. damages, as provided by statute. There were ten counts in the declaration. The first was for $ 200, double the levee privilege tax on dramshops for the year 1891. The second was for the privilege tax, and 100 per cent. thereon for the year 1893, on the store. The other counts were each for $ 20 for the privilege taxes and penalties for each successive year thereafter. The whole amount sued for was $ 306, and the suit was brought in the circuit court. Defendant, Abbay, demurred to the first two counts in the declaration on the ground that the act of the legislature of 1886. sec. 3, was repealed by the legislature of 1894, and therefore no action could be brought to recover the privilege tax and penalty which accrued under said act. To the other counts he demurred on the ground that the aggregate amount therein sued for was not within the jurisdiction of the circuit court, it being only $ 86. The court overruled the demurrer. Defendant declined to plead further, and final judgment was rendered against him for the total amount demanded in the declaration. From that judgment, defendant appealed to the supreme court.

Affirmed.

F. A. Montgomery, Jr., for appellant.

The first ground of demurrer is predicated of the proposition that the law, under which the privilege tax demanded in the two first counts of the declaration were levied, has been repealed. And that, therefore, no action can be brought to recover under that law.

In 1894, the legislature passed an act entitled an act to repeal sec. 3 of an act, approved March 16, 1886, entitled an act to amend an act to incorporate the board of levee commissioners, for the Yazoo-Mississippi Delta, an act entitled an act to levy a privilege tax on certain callings, business and professions, and for other purposes."

The first section of this act of 1894 (Laws 1894, p. 77) reads as follows: "That section 3 of an act approved March 16, 1885, entitled an act to amend an act to incorporate the board of levee commissioners for the Yazoo-Mississippi Delta, and for other purposes, be and the same is hereby repealed."

The second section of this act of 1894, is an exact copy of section 3 of the acts of 1886, referred to, except as to the schedule. There are only 28 privileges taxed in the law of 1886, whereas there are 59 privileges taxed in the law of 1894. The tax on stores and on liquor dealers being the same in both.

The express repeal, by sections of the acts of 1894, of sec. 3 of the acts of 1886, annuls the last named law as if it has never been passed.

That the effect of the repeal of a law obliterates the repealed statute from the records completely; that after the repeal of a law no penalty can be enforced, no punishment inflicted, and no action brought; unless there be some special provision made for that purpose by the repealing statute.

This is the universal rule which has always been adhered to by our supreme court. Teague v. State, 39 Miss. 520; Musgrove v. Railroad Co., 50 Miss. 681; French v. State, 53 Miss. 653; Wheeler v. State, 64 Miss. 462; Nations v. Lovejoy, 80 Miss. 405.

The case relied on by counsel for appellee in support of his contention is the case of Anding v. Levy, 57 Miss. 51.

That was the...