Bell v. Kerr

• Decision Date: 24 March 1902
• Citation: 80 Miss. 177,31 So. 708
• Court: Mississippi Supreme Court
• Parties: SAMPSON J. BELL v. JACOB B. KERR ET AL

31 So. 708

80 Miss. 177

SAMPSON J. BELL v. JACOB B. KERR ET AL

Supreme Court of Mississippi

March 24, 1902

FROM the circuit court of Warren county. HON. GEORGE ANDERSON Judge.

Kerr and another, appellees, were plaintiffs in the court below Bell, appellant, was defendant there. From a judgment in plaintiffs' favor defendant appealed to the supreme court.

The controlling facts of the case sufficiently appear in the opinion of the court.

Affirmed.

McLaurin Armistead & Brien, for appellant.

The test of liability under the privilege tax law is the buying of timber without buying the land, and the shipping of it out of the state by the particular company, corporation, or individual. The cestui que trust McPherson clearly bought the timber in Warren county without buying the land on which it stood, and shipped the lumber made from it out of this state. As he never paid the proper privilege tax, the contract evidenced by the deed of trust in his favor is void. Laws 1900, p. 44; Reardon v. Henson, 29 So. 764. We also insist that buying the timber without buying the land is alone sufficient to impose liability for the tax, unless McPherson was a saw-mill operator in Warren county, and it is conceded that he was not.

The case of Cunningham Bros. Woolen Co. v. Building & Loan Association, 73 Miss. 516, has no application to the one at bar, for here, Kerr, the grantor in the trust deed, as shown by his assignment, desires the avoidance of the trust deed, and authorizes the appellant to make the defense against it, above relied on.

Magruder, Bryson & Dabney, for appellees.

1. The act of the legislature imposing the privilege tax in question operates as a regulation of commerce among the states, and undertakes to lay duties on exports, and is therefore repugnant to the constitution of the United States. Const. U.S. art. 1, sec. 8, clause 3; Allen v. Tyson Jones Buggy Co., 91 Texas, 22; Cook v. Rome Brick Co., 98 Ala. 409; Voight v. Wright, 141 U.S. 62; Tiedman on State and Federal Control of Persons and Property, pp. 1033, 1038, and cases cited; Coe v. Errall, 116 U.S. 517; Walling v. Michigan, Ib., 446; Woodruff v. Parham, 8 Wall., 123; Welton v. Missouri, 91 U.S. 282; County of Mobile v. Kimball, 102 U.S. 697; Brown v. Houston, 114 U.S. 622, and cases cited; Gibbons v. Ogden, 9 Wheat., 222.

2. The evidence utterly fails to show that McPherson shipped lumber from Warren county at any time.

3. If he did ship lumber out of the state, it was not done until some months after the trust deed sought to be avoided was made, and not being liable for a privilege tax when that instrument was made, there was no default in payment on his part which could affect the validity of his contract.

OPINION

CALHOON, J.

We do not decide whether sec. 8, ch. 43, p. 44, laws 1900, is violative of the constitution of the United States, as is so ably argued by counsel. It is not necessary that we should decide this question, and courts do not deliver opinions on the constitutionality of statutes unless it be essential to the determination of the case in hand. Section 8, referred to, is in a statute creating privilege taxes, and is this "On each land timber mill company, or corporation, or individual in each county, who buys timber without buying the land, for 500 acres, or less, $ 25. Same: For 1,000 acres, or more than 500 acres, $ 50, and so on at the rate of $ 25 on each 500 acres in each county so purchased; provided, that this does not apply to saw-mill operators who do not ship timber or lumber out of...