Bradstreet Company v. City of Jackson

• Decision Date: 24 November 1902
• Citation: 32 So. 999,81 Miss. 233
• Court: Mississippi Supreme Court
• Parties: BRADSTREET COMPANY v. CITY OF JACKSON

32 So. 999

81 Miss. 233

BRADSTREET COMPANY v. CITY OF JACKSON

Supreme Court of Mississippi

November 24, 1902

October 1902

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

The city of Jackson, appellee, was plaintiff, and the Bradstreet Company, appellant, was defendant in the court below. From a judgment by default against it the defendant appealed to the supreme court. The action was to recover the sum of $ 300 alleged to be due by defendant to the city of Jackson as a privilege tax for carrying on the business of a commercial agency for the years 1892 and 1893. A summons was duly issued and served on one Jones, alleged to be the agent of defendant corporation, which was nonresident of the state. Defendant appeared for the sole purpose of contesting the jurisdiction of the court, and filed a plea in abatement, denying that Jones was its agent and that it had been legally served with process. Issue was joined on this plea and testimony heard. The court below held that Jones was the agent of defendant and that service of summons on Jones was sufficient. Defendant declined to plead to the merits, and a judgment was rendered against it for the sum of $ 300. The opinion of the court contains a further statement of the facts.

Reversed and remanded.

Harper & Potter, for appellant.

If this court should be of the opinion that the service of process on Jones was sufficient to warrant a judgment by default against defendant, still it was error so to do in this case, since the declaration on its face wholly fails to state a cause of action.

The action is based on code 1892, § 3336. A careful reading of this, and other sections bearing on it, will show that "commercial agencies" were not intended to be made subject to municipal privilege taxation.

If under § 3336, code 1892, commercial agencies were subject to municipal taxation, the action cannot be sustained, because that section was repealed expressly by the act (p. 54) of 1896.

"The effect of repealing a statute is to obliterate it as completely as if it had never been passed. It must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced prosecuted and concluded while it was an existing law." Musgrove v. Railroad Co., 50 Miss. 677; Anding v. Levy, 57 Miss. 58; 23 Am. & Eng. Ency. Law, 500.

Starling & Harris, for appellee.

The act of 1896 repealing the authority conferred upon municipalities to levy a tax upon commercial agencies did not take away from the city the right of action for taxes already accrued, although said act was passed before suit was brought.

The tax when levied becomes a debt under the code, and is, therefore a vested right. The code of 1892 provides that every legal tax levied is a debt, whether assessed, or properly assessed, or not, and may be recovered by action. Code 1892, § 3747; Anding v. Levy, 57 Miss. 58.

By a well considered case in Iowa it is held that where a city is given power to tax and has exercised the power, the tax is a debt due the city. The city levied a tax on a railroad, and the road was afterwards exempted by the state. The court held further that the vested right of the city could be no more divested than the vested right of an individual or private corporation. City of Dubuque v. I. C. R. R. Co., 39 Iowa 56; State of Wisconsin v. Haben, 22 Wis. 660.

Argued orally by W. R. Harper, for appellant.

OPINION

CALHOON, J

We do not decide whether the service of process is valid, nor whether there was power in a municipality in Hinds county to tax appellant in view of code 1892, § 3336, providing that the payment of the tax to the auditor, etc., by a commercial agency "shall exempt the company or party carrying on such business from the payment of this tax in any county."

The only remaining question, and the question we will decide, is whether the case made can support the judgment by default taken. The policy of taxing the privilege of carrying on commercial agencies first appears in our legislation in code 1892, § 3336, imposing an annual state tax of $ 300. This was repealed by Laws 1896, p. 54, sec. 13, and the repealing act has no saving clause. The declaration claims fifty per cent of the state tax for the years 1892 and 1893, levied by the city as a debt. The levy fell by the repeal. The United States and Kentucky, ...