Board of Levee Commissioners For Yazoo and Mississippi Delta v. Houston

• Decision Date: 16 February 1903
• Court: Mississippi Supreme Court
• Parties: BOARD OF LEVEE COMMISSIONERS FOR YAZOO AND MISSISSIPPI DELTA v. OSCAR HOUSTON

33 So. 491

81 Miss. 619

BOARD OF LEVEE COMMISSIONERS FOR YAZOO AND MISSISSIPPI DELTA v. OSCAR HOUSTON

Supreme Court of Mississippi

February 16, 1903

October 1902

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

The Board of Levee Commissioners for Yazoo and Mississippi Delta appellant, was plaintiff in the court below; Houston (a dramshop keeper), appellee, was defendant there. The suit was an action for the privilege tax imposed for levee purposes on liquor dealers by laws of 1894, p. 78. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The facts are further stated in the opinion of the court.

Reversed and remanded.

J. T. Lowe, for appellant.

The act of 1894, p. 77, requiring each person selling vinous and spirituous liquors in less quantities than one gallon, in the levee district of appellant to pay $ 100 for the privilege and right to do so, and the act of 1884, p. 141, and state constitution, sec. 228, declaring that all Tunica county is in said levee district settle the question beyond controversy, even though appellee's dramshop was situated between the levee and the Mississippi river. "When the constitution and the laws puts an entire county in a district for local taxation, the courts cannot legislate any part of it out of their operation." Smith v. Willis, 78 Miss. 243.

The said $ 100 imposed is not a tax on property within the scope and purview of the law on taxation, but is a privilege tax on the business of operating a dramshop, pure and simple. Carter v. State, 60 Miss. 456; Folkes v. State, 63 Miss. 81; Pitts v. Vicksburg, 72 Miss. 181; Craig v. Pattison, 74 Miss. 881; Alcorn v. State, 71 Miss. 464.

"Privilege taxes are not taxes on property, and consequently are not subject to constitutional restrictions upon the power to tax property; such for example that taxes shall be uniform and equal." 25 Am. & Eng. Ency. Law, 480; Orton v. Brown, 35 Miss. 426; Board of Supervisors v. Sumner, 51 Miss. 13; State v. Philadelphia, etc., R. R. Co., 24 Am. Rep., 511; Cait v. Society for Savings, 6 Wall., 625, 630.

F. A. Montgomery, Jr., for appellee.

Section 238 of the constitution of 1890 provides that no property situated between the levee and the Mississippi river shall be taxed for levee purposes, nor shall damages be paid to any owner of land so situated because of its being left outside of the levee.

The intention of the constitution is manifestly that property left outside of the protection of the levee shall not be taxed, because it is not protected. Duncan v. Levee Commissioners, 74 Miss. 125.

If the privilege tax sought to be collected in this suit is a tax on property, then there can be no doubt that the judgment of the circuit court in this case should be affirmed.

There is no dispute about the fact that the appellee's dramshop was situated between the levee and the Mississippi river.

Our supreme court has, several times, recognized a privilege tax as a tax on property. Vicksburg Bank v. Worrell, 67 Miss. 47; Bank of Oxford v. Town of Oxford, 70 Miss. 504; Attalla Co. v. Kelly, 68 Miss. 40.

In case of a license to retail vinous and spirituous liquors there can be no doubt that the license itself is property, and that a tax on the license is a direct tax on property. Reed v. Beall, 42 Miss. 473; Coulson v. Harris, 43 Miss. 728; Drysdale v. Pradat, 45 Miss. 445; Ex parte, Taylor, 58 Miss. 478; Railroad Co. v. State, 62 Miss. 105.

OPINION

TERRAL, J.

Houston, under license granted by the board of supervisors of Tunica county, operated a dramshop in a building placed between the levee and the Mississippi river. Houston carried on his business for two years, but declined to pay annually a tax of $ 100, which ch. 78, acts 1894, imposed upon him for benefit of the Board of Levy Commissioners for the Yazoo and Mississippi Delta. The tax, now amounting to $ 400, being doubled annually because of nonpayment at the proper time, was resisted upon the ground that it was illegal under sec. 238 of the constitution, which provides that "no property situated between the levee and the Mississippi river shall be taxed for levee purposes." The court below sustained that contention, and the levee board appeals.

We are of the opinion that...