Columbus & G. Ry. Co. v. Miller

Decision Date25 May 1931
Docket Number28555
CourtMississippi Supreme Court

(In Banc.).


Presumption that statute respecting levee district taxation was published as required by Constitution held conclusive (Laws 1926 chapter 259; Constitution 1890, section 234).


Constitutional provision requiring proportionate reduction in taxes in levee district applies only to action of levee boards when reducing acreage taxes (Constitution 1890, section 236).


Statute reducing levee taxes on railroads not owning in excess of twenty-five miles of railroad in district does not violate constitutional provision respecting proportionate reduction in taxes (Laws 1926, chapter 259; Constitution 1890, section 236).


APPEAL from circuit court of Montgomery county, HON. JNO. F. ALLEN Judge.

Suit by W. J. Miller, state tax collector, against the Columbus & Greenville Railway Company and others. From the judgment, defendant appeals. Reversed, and bill dismissed.

Reversed, and bill dismissed.

Gardner, Odom & Gardner, of Greenwood, and Watkins, Watkins & Eager, of Jackson, for appellant.

The Act of 1926 involved was a perfectly valid and proper classification under the Fourteenth Amendment to the Constitution of the United States.

Columbus & Greenville Railway Co. v. W. J. Miller, State Tax Collector, for the use of the Mississippi Levee District, 75 L.Ed. 589.

In the absence of a constitutional requirement that the legislative journals shall show that notice was given of intention to apply for the passage of a local or special act, an enrolled bill of that character cannot be impeached for failure to give such notice, or for the insufficiency of the notice actually given.

Ex parte Wren, 63 Miss. 512; Field v. Clark, 143 U.S. 649; Hunt v. Wright, 70 Miss. 289; Adams, State Revenue Agent, v. Noble, 60 So. 561, 103 Miss. 393; State ex rel. Collins v. Jackson, 81 So. 1, 119 Miss. 727.

In the case of Postal Telegraph Company v. Roberson, 116 Miss. 204, 75 So. 560, and Riley v. Ammons, 108 So. 296, there was not proof of the failure to make the publication so the question was not before the court.

The question presented was a legislative question which the courts refuse to review. It is conclusively presumed that the publication was made.

Hall v. Steele, 82 Ala. 562, 2 So. 650; Harrison v. Gordy, 57 Ala. 49; Clark v. Jack, 60 Ala. 271; Walker v. Griffith, 60 Ala. 361.

The court will not consider whether or not a statute adopted by the people at the referendum election received the necessary publicity if the law has been authenticated, promulgated, and published, when the Constitution provides that any measure shall become law when approved by majority vote and proclaimed as such by the governor.

Allen v. State of Arizona, 130 P. 1114, 44 L. R. A. (N. S.) 468.

It has been frequently held that it would be conclusively presumed that the publication was had.

Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844; Caton v. Western Clay Drainage District, 87 Ark. 8, 112 S.W. 145; Peoples v. Burt, 43 Cal. 560; Eld. v. Gorman, 20 Conn. 8; Rushton v. State of Florida, 50 So. 486; Mathis v. State, 31 Fla. 291, 12 So. 681; Peed v. McCrary, 94 Ga. 487, 21 S.E. 232; Fullington v. Williams, 27 S.E. 103; Cutcher v. Crawford, 105 Ga. 180, 31 S.E. 139; Lee v. Tucker, 130 Ga. 43, 60 S.E. 164; White v. Atlanta, 134 Ga. 532, 68 S.E. 103; Clark v. Eve, 134 Ga. 788, 68 S.E. 598; Burge v. Mangum, 134 Ga. 307, 67 S.E. 857; Clarke v. State, 5 Iowa 510; Duncombe v. Prindle, 12 Iowa 1; Evans v. Browne, 30 Ind. 514, 95 Am. Dec. 710; Bender v. State, 53 Ind. 254; Lafferty v. Huffman, 32 L. R. A. 203, 35 S.W. 123; State v. Muray, 17 So. 823; Louisiana State Lottery v. Richoux, 23 La. 743, 8 Am. Rep. 602; Fauke v. Fleming, 13 Md. 392; People v. Devem, 33 N.Y. 269, 88 Am. Dec. 377; People ex rel. Purdy v. Highway Commissioners, 54 N.Y. 276, 13 Am. Rep. 581; Standard Underground Cable Co. v. Attorney-General, 46 N.J.Eq. 270, 19 Am. St. Rep. 394, 19 A. 733; Passaic Co. v. Stevenson, 46 N. J. L. 173; Cox v. Commissioners, 146 N.C. 584, 60 S.E. 516, 16 L. R. A. (N. S.) 253; Bray v. Williams, 137 N.C. 387, 49 S.E. 887; State ex rel. Scarbrough v. Robinson, 81 N.C. 409; Weeks v. Smith, 81 Me. 538, 18 A. 325; State ex rel. Herron v. Smith, 44 Ohio St. 348, 7 N.E. 477, 12 N.E. 829; Rakowski v. v. Wagnor, 24 Okla. 282, 103 P. 632; Perkins v. Philadelphia, 156 Pa. 554, 27 A. 356; Narregany v. Brown County, 14 S.D. 357, 85 N.W. 602; State ex rel. Lavin v. Bacon, 14 S.D. 394, 85 N.W. 605; Home Telegraph Company v. Nashville, 118 Tenn. 1, 101 S.W. 770, 11 Ann. Cas. 824; Williams v. Taylor 83 Tex. 667; McLane v. Paschal, 8 Tex. Civ. App. 398, 28 S.W. 711; Usener v. State, 8 Tex.App. 177; Donaldson v. State, 15 Tex.App. 25; Ex parte Tipton, 28 Tex.App. 438, 8 L. R. A. 326, 13 S.W. 610; People ex rel. Haller v. Clayton, 5 Utah 598, 18 P. 628; Ritchie v. Richards, 14 Utah 345, 47 P. 670; Gatstein v. Lister, 88 Wash. 505, 153 P. 595.

Section 236 of the Mississippi State Constitution is not violated by the Act of 1926. That section of the Constitution only had reference to acreage tax.

Franklin, Easterling & Rosenthal, of Jackson, for appellee.

Section 234 of Mississippi Constitution of 1890 is mandatory and not directory. A failure to comply with it renders any attempt at legislation absolutely void.

Bobo v. Board of Levee Commissioners, 46 So. 819, 92 Miss. 792; Royal Insurance Company v. Board of Levee Commissioners, 48 So. 183, 95 Miss. 168; Postal Telegraph Cable Company v. Robertson, 76 So. 560, 116 Miss. 204; Riley v. Ammon, 108 So. 296; W. J. Miller, State Tax Collector, v. Y. & M. V. Railroad Company.

Section 236, of the Mississippi Constitution of 1890, requires all reductions in taxation to be uniform and proportionate. The Act of 1926 merely reduced the taxes on railroads of a certain class having less than twenty-five miles of railroad in the district, and is unconstitutional. This was a reduction in a particular tax and a reduction granted to a particular taxpayer. No reduction was made in the other railroad taxes, the acreage tax, and ad valorem tax, or cotton tax.

The publication of a notice is a condition precedent and the failure to make proper publication renders the law unconstitutional and null and void.

Vaughn v. State, 102 So. 222, 212 Ala. 258; Birmingham Electric Company v. Harry, 111 So. 41, 215 Ala. 458; In re Opinion of the Justices, 113 So. 584, 216 Ala. 469; Article 3, section 21, Florida Constitution of 1885; Milner v. Hatton, 129 So. 593; Federal Land Bank of New Orleans v. Nix, 117 So. 720, 166 La. 566; 12 C. J. 740, section 146.

Where the legislative journals affirmatively show that constitutional provisions have not been observed, the act will be declared invalid.

25 R. C. L., p. 898, sections 151, 152; Atchinson T. & S. R. R. Co. v. State, 40 L. R. A. (N. S.) 2; Post v. Kendal County, 105 U.S. 667, 27 L.Ed. 1204; Cohn v. Kingsley, 5 Idaho 416, 38 L. R. A. 74; Jones v. Huchinson, 43 Ala. 721.

The doctrine that the enrolled acts of the Legislature, when signed by the speaker of the house of representatives and president of the senate, and approved by the governor, and deposited in the office of the secretary of state, are records, and import absolute and uncontrollable verity, and that they are conclusive evidence of the due enactment of the statutes contained in them, and cannot be impeached in any manner must be received with some qualification. These acts are prima facie evidence of the existence of the statutes, and that they were regularly and constitutionally passed by the legislature but they are not conclusive.

Brady v. West, 50 Miss. 68, 77, 78 and 79.

Argued orally by W. H. Watkins and A. F. Gardner, for appellant, and Lamar F. Easterling, for appellee.


Smith, C. J.

The appellant owns and operates a railroad eighteen and forty-one one hundredths miles of which lie in the Mississippi levee district, and this suit is to recover from it the sum of twelve thousand one hundred fifty dollars and sixty cents, levee taxes alleged to be due by it for the years 1926 and 1927, and statutory damages thereon. A demurrer to the tax collector's declaration was sustained in the court below, but, on appeal to this court, the judgment so doing was reversed and the case was remanded. Miller v. Columbus & G. Ry. Co., 154 Miss. 317, 122 So. 366. On the return of the case to the court below, judgment was rendered for the tax collector and affirmed by this court, 127 So. 784.

A complete statement of the case will be found in the report thereof in 154 Miss. at page 322, 122 So. 366, from which it appears that chapter 7, Laws of 1886, imposed a levee tax on railroads in the Mississippi levee district of one hundred dollars per annum on each mile of the main line thereof in the district. This statute was amended by chapter 282, Laws of 1914, so as to impose a tax of three hundred fifty dollars per annum upon each mile of the main lines of the railroads in the district. By chapter 259, Laws of 1926, the 1914 statute was amended by adding thereto the following: "Provided further that the tax per mile per annum on the main line of any railroad company which does not own in excess of twenty-five miles of railroad in the Mississippi levee district shall be fifty dollars per annum." The appellee paid fifty dollars per mile on its eighteen and forty-one one hundredths miles of railroad in the district for the years 1926-27, and this suit is to recover the difference between that amount and three hundred and fifty dollars per mile and damages thereon.

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