Adams v. Standard Oil Company of Kentucky

Citation97 Miss. 879,53 So. 692
CourtUnited States State Supreme Court of Mississippi
Decision Date12 December 1910
October 1910

FROM the circuit court of, first district, Hinds county, HON WILLIAM A. HENRY, Judge.

Adams state revenue agent, appellant, was plaintiff in the court below; the oil company, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court. The facts of the case, as stated by ANDERSON J., were as follows:

This is a suit by the appellant, Adams, state revenue agent, begun in the circuit court of Hinds county, against the Standard Oil Company of Kentucky, the appellee, on behalf of the state, as well as on behalf of one hundred and forty seven municipalities therein, to recover from the appellee privilege license taxes, alleged to be due by it to the state of $ 52, 040, and to such municipalities, of $ 24, 990 making the total amount sued for $ 77, 030. The appellee demurred to the declaration, which demurrer was sustained by the court below; and, appellant declining to amend, judgment was entered dismissing the suit, from which judgment this appeal is prosecuted.

The material averments of the declaration are as follows: That the appellee is a Kentucky corporation, doing business in this state, with an office and agents in the city of Jackson, Hinds county; that during the year 1903, and continuously thereafter, up to the bringing of this suit, appellee had been engaged, throughout the seventy-eight counties of this state, and in one hundred and forty-seven municipalities therein (naming them), in the business and exercising the privilege of peddling from two-horse wagons illuminating and lubricating oil and axle grease, vending the same from house to house; that under the laws of this state appellee was required to pay the state a privilege tax of $ 50 per annum for each county for the years 1903, 1904, and 1905, and of $ 40 for the years 1906 and 1907, and of $ 80 for the years 1908 and 1909; that each of said municipalities, as authorized by law, had adopted, and had in force during the whole of said period, ordinances providing a privilege license tax on peddlers with two-horse wagons, vending goods and merchandise therein, of 50 per cent. of the state tax for each county; that during said period, from 1903 to 1909, inclusive, appellee wholly made default in the payment of said tax, either to the state or said municipalities; the amount due the state for said period being $ 26, 020, which under the law is doubled as a penalty for failure to pay, and the amount due such municipalities being $ 24, 990, making a total due the state and municipalities of $ 77, 030, the amount sued for.

The ground of demurrer relied on the argument, and passed on by the court, is that the statutes, by virtue of which the privilege taxes are sought to be recovered, are repugnant to the equal protection clause of the fourteenth amendment to the Constitution of the United States in this (using the language of the demurrer): "That the same are discriminatory, and do not impose privilege taxes equally and alike on all peddlers of the class named; in that by the said statutes it is provided that the privilege tax sought to be imposed upon peddlers shall not be paid by any person resident of any county in this state who is over sixty years old and has lost a limb or an eye, or who is otherwise unable to earn a support for himself by labor, and whose taxable property is less than $ 500; and also because in and by such statutes it is provided that any Confederate soldier may exercise the privilege within the county of his residence of a peddler without paying such privilege tax; and also, thirdly, because in and by such statutes it is provided that any person blind, or deaf and dumb, or maimed by the loss of a hand or foot, or any Confederate soldier, may exercise the business and calling of a peddler without the payment of such privilege tax, if he exercises the privilege exclusively for himself and family, and resides in this state, and does not own taxable property in the excess of $ 1, 000, either in his own name or in his wife's name."

Reversed and remanded.

Harris & Potter and Tim E. Cooper, for appellant.

It is not necessary in this case to make a declaration as to whether the exemption of Confederate soldiers is valid or not, for the reason that if the same is unconstitutional, it is nevertheless separable from the other provisions of the revenue law, and they must stand regardless of whether the exemption is valid or invalid.

In the case of Field v. Clark, 143 U.S. 149, the rule is stated: "Unless it be impossible to avoid it, a general revenue statute should never be declared inoperative in all of its parts because a particular part relating to a distinct subject may be invalid."

In the case of Huntington v. Worthen, 120 U.S. 97, on the question of the invalidity of an act of the legislature of Arkansas to exempt property where the state constitution provided that all property subject to taxation shall be taxed according to value, and that no species of property from which a tax may be collected, shall be taxed higher than another species of property of equal value." The court held that "The constitutional part of the statute was separable from the remainder. The legislature declared that in making its statement of the value of its property the railroad company should omit certain items; this clause being held invalid, the rest remained unaffected and could be fully carried out. An exemption, which was invalid, was alone taken from it. It is only where different clauses of an act are so dependent upon each other that it is evident the legislature would not have enacted one of them without the other, as when the two things provided are necessary parts of one system, that the whole act will fall with the invalidity of one clause. When there is no such connection and dependency, the act will stand, though different parts of it are rejected."

In Allen v. Louisiana, 103 U.S. 80, the rule is declared to be: "The point to be determined in all such cases is whether the unconstitutional provisions are connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intention of the legislature."

In Rothermel v. Myerele, 9 L. R. A. 366, the Pennsylvania court states the rule to be as follows: "A statute may be void only so far as its provisions are repugnant to the constitution; one provision may be void and this will not affect other provisions of the statute, if the part which is unconstitutional in its operation is independent of, and readly separable, so that the latter may stand by itself."

In volume 1 Sutherland (2d ed.) on Statutory Construction, 576, the rule is stated thus: "The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other. The constitutional and unconstitutional provisions may even be expressed in the same section, or even in the same sentence and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point or test is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance."

In the case of Ballard v. Oil Company, 81 Miss. 507, Judge WHITFIELD says: "The test clearly is this: That whenever the court finds on the face of a statute a number of different provisions, some constitutional and some unconstitutional, there it may sever, if they be not interdependent, between these provisions striking out the unconstitutional; and, let it be marked, that in every such case, there is something to sever between on the face of the statute."

Sutherland gives the following miscellaneous acts held severable (2d ed.), 602:

An act for the incorporation and government of banks contained an invalid provision exempting stockholders from liability. It was held that this could be rejected and the balance sustained. McGowan v. McDonals, 111 Cal. 57.

An act which provides for the establishment of new roads and an improvement of roads already established, an invalid provision for condemning the right of way for new roads will not affect the part as to the improvement of roads. Seanor v. County Com., 13 Wash. 48.

An act provided for the appointment of three election commissioners by the governor and required him to appoint one from three persons to be named by a party central committee. This requirement was held void and severable and the remainder of the act valid. State v. Washburn, 167 Mo. 680.

An act creating a city court provided that cases in which the amount involved was not over $ 500 should be tried without a jury. This was contrary to the constitution, which guaranteed the right of trial by jury in all cases. This provision was held severable and the remainder of the act void.

In this case, the validity of our entire privilege chapter, with the exception of tax on liquor, cigarettes, deadly weapons second-hand clothing, jenny lynd or pool tables, must stand or fall with the tax on peddlers. It would be absurd to say that the tax on peddlers was alone unconstitutional, because under the various exemptions above set out, the Confederate soldier is required only to pay a privilege tax where the privilege is upon a calling that is in the nature of a nuisance, as saloonkeepers, dealers in cigarettes, deadly weapons, second-hand...

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