Board of Levee Com'rs for Yazoo Mississippi Delta v. Howze Mercantile Co.

• Citation: 116 So. 92,149 Miss. 843
• Decision Date: 19 March 1928
• Docket Number: 26999
• Parties: BOARD OF LEVEE COM'RS FOR YAZOO MISSISSIPPI DELTA v. HOWZE MERCANTILE CO. [*]
• Court: United States State Supreme Court of Mississippi

116 So. 92

149 Miss. 843

BOARD OF LEVEE COM'RS FOR YAZOO MISSISSIPPI DELTA v. HOWZE MERCANTILE CO. ^[*]

No. 26999

Supreme Court of Mississippi

March 19, 1928

Division B

1 STATUTES. Law imposing privilege tax should be liberally construed in favor of taxpayer.

Law imposing a privilege tax should be liberally construed in favor of citizens sought to be assessed with tax, and no occupation will be taxed unless it clearly appears that it comes within provision of law.

2 STATUTES. Courts, on doubtful interpretation of privilege tax law, will not extend it beyond clear meaning of language employed.

On doubtful interpretation, privilege tax laws will not be construed as imposing burdens on citizens, and courts will not extend statute imposing such tax beyond clear meaning of language employed.

3 LICENSES. Dealer in coffins in village having less then two hundred population held not liable for privilege tax (Hemingway's Code Supp. 1921, section 6494; Hemingway's Code 1927, section 6730).

Laws 1920, chapter 104, section 13 (Hemingway's Code Supp. 1921, section 6494), imposing certain privilege taxes, held not to require payment of tax by dealers in coffins operating in village of population of two hundred inhabitants, in view of classification of cities, towns, and villages, under Hemingway's Code 1917, section 5795 (Hemingway's Code 1927, section 6780).

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, Second district, HON. W. A. ALCORN, JR., Judge.

Suit by the Howze Mercantile Company against the board of levee commissioners for the Yazoo Mississippi Delta. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

J. A. Tyson, for appellant.

The contention of the appellee is that Sledge was a "village" because it had less than three hundred inhabitants, and was not a "town" within the meaning of the word "town" as used in section 6494, Hemingway's Supplement, 1921, or section 13, Ordinances of said levee board, which provide for the privilege taxes claimed, and that consequently the Howze Mercantile Company, doing business as a coffin dealer in Sledge, was not liable for the privilege taxes collected. This contention is based upon the proposition that the word "town" as used in section 6494, Hemingway's 1921 Supplement, and section 13 of the Levee Board Ordinances, has the same meaning as it has in section 5795, Hemingway's 1917 Code, which classifies municipal corporations, and by such classification defines a "town" to be a place having not less than three hundred inhabitants. On the other hand, the contention of the appellant is that Sledge was a "town" within the meaning of said section 6494, Hemingway's Supplement, 1921, for the reason that that word as used in that section was used by the legislature according to its commonly accepted meaning and in its popular sense. Murphy v. State, 66. Miss. 46.

In Harris Ice Cream Co. v. Hartsock, 127 Miss. 271, the question was presented to this court as to whether or not a citizen of an unincorporated village or town could claim his exemption under section 1822, Hemingway's Code 1917. The court said: "There is nothing in the language of this (the exemption statute) by which it can be determined whether the city, town or village mentioned must be incorporated or unincorporated."

Chambers & Trenholm, for appellee.

Appellant contends that the words: "city or town of less than two thousand inhabitants," includes a village. Appellee contends, and the trial court held, to the contrary. It is true that this court adopted that definition of a town in the case of Murphy v. State, 66 Miss. 46, but that was in 1869, before the legislature fixed the statutory definition of cities, towns and villages, which appears for the first time in the Code of 1892. Also, in that case the question was whether Mississippi City, not incorporated, was in fact a town, the court holding that the privilege license was due if Mississippi City was a town in fact, tho not incorporated, the statute using the word "town."

Appellant next says that the word "town" in the aforesaid statute and ordinance should include a village because this court held, in the case of Harris Ice Cream Co. v. Hartsock, 127 Miss. 271, 90 So. 7, that under the exemption statute it made no difference whether the place where the exemptionist resided was incorporated or not. However, the court went further and said that if the statute under consideration dealt with governmental powers it would refer to municipal corporations, as an unincorporated municipality could not exercise governmental powers. Surely privilege tax statutes deal with governmental powers. When you consider that one of the privilege tax statutes permits municipalities to collect privilege taxes, there is no escape from that conclusion. Therefore, if the Harris Ice Cream case is any authority here, it is to the effect that the words "cities," "towns" and "villages" as used in privilege tax statutes mean such municipalities as defined by the code. Therefore, "towns" cannot include "villages."

Laws imposing privilege taxes are to be construed in favor of the citizens, and no occupation is to be taxed unless clearly within the provisions of such laws. V. & M. R. R. Co. v. State, 62 Miss. 105. Can it be said, considering the whole act, that coffin dealers in "villages" are clearly within the provisions of a statute placing a tax on such dealers in "city or town of less than two thousand inhabitants?" We respectfully say no! That this court is within its right in placing a strict and narrow construction upon legislation of this kind is well demonstrated in Wilby v. State, 93 Miss. 767, 47 So. 465. In State v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137, the state undertook to so construe a privilege tax "on each compress company" as to make it apply to each "compress." In other words the state endeavored to read the word "company" out of the statute, just as the levee board is here endeavoring to read the word "village" into it. In dismissing the suit the court said: "We are not justified in cutting out or eliminating the word 'company' especially when we remember that a privilege tax is in the nature of a license to do business and not a property tax. The statute is not so written, and the plain words of the statute must in this instance be our sole guide." Finally, in I. C. R. R. Co. v. Jordan, 63 Miss. 458, this court held that the use of the words: "city, town or village" in the statute regulating the speed of trains had reference to incorporated municipalities, since it permitted a suit on behalf of the such city, town or village to recover a penalty for its violation, and since a suit could only be brought and maintained by a municipality with a legal existence--a legal entity.

OPINION

PACK, J.

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