Goodstein v. Board of Mississippi Levee Com'rs

• Decision Date: 15 April 1929
• Docket Number: 27854
• Citation: 121 So. 856,153 Miss. 783
• Parties: GOODSTEIN v. BOARD OF MISSISSIPPI LEVEE COM'RS. [*]
• Court: Mississippi Supreme Court

121 So. 856

153 Miss. 783

GOODSTEIN v. BOARD OF MISSISSIPPI LEVEE COM'RS. ^[*]

No. 27854

Supreme Court of Mississippi

April 15, 1929

Division B

1 PENALTIES. "Statutory penalty" in civil sense is pecuniary punition, imposed for doing some prohibited act or omitting to do some required act.

In a civil sense, a "statutory penalty" is a pecuniary punition, imposed for doing some act which is prohibited or for omitting to do some act which is required to be done.

2. LEVEES AND FLOOD CONTROL. Law authorizing recovery of ten dollars for each bale of cotton removed without paying tax and without consent of levee board, imposed statutory penalty (Laws 1906, chapter 128, section 5).

Laws 1906, chapter 128, section 5, authorizing board of Mississippi levee commissioners to recover tax of ten dollars on each bale of cotton removed without paying tax thereon and without consent of levee board, held to impose a statutory penalty by reason of such default.

3 PENALTIES. Intrinsic nature of exaction controls in determining whether statute imposes penalty, regardless of name or designation.

Determination of question as to whether statute imposes a penalty is not controlled by the name or designation which the legislature has given to it, but the intrinsic nature of the exaction will control, and it will be regarded as a penalty when by its very nature it is a penalty.

4. LEVEES AND FLOOD CONTROL. Board of levee commissioners, acquiescing in general practice of making remittances of cotton tax through banks, could not thereafter recover statutory penalty (Laws 1906, chapter 128, section 5).

Where board of levee commissioners had for a period of several years acquiesced in practice of making remittances of cotton tax under Laws 1906, chapter 128, section 5, to and through banks without having consented to removal of cotton before payment of tax, it was not entitled to recover statutory penalty thereunder, regardless of whether such practice was authorized by an order spread on the minutes of the board.

HON. HARVEY McGEHEE, Chancellor.

APPEAL from chancery court of Bolivar county, First district., HON. HARVEY MCGEHEE, Chancellor.

Action between H. Goodstein and the board of Mississippi levee commissioners. Decree for the latter, and the former appeals. Affirmed in part, and in part reversed.

Affirmed in part, and reversed in part.

Valentine & Valentine, for appellant.

This suit is for the recovery of a penalty. The act itself in its title recites that it is enacted for the purpose, among others, of "providing penalties for evading the cotton tax," and the heading to sec. 5, reads thus: "Unlawful to remove cotton before tax has been paid; penalty for this offense." The act then proceeds to declare the act of removing cotton from the levee district, which had been grown therein, without first paying the levee tax, to be a misdemeanor, and prescribes a fine and imprisonment upon conviction thereof. From this it is clear that the alleged tax of ten dollars per bale is prescribed as an additional penalty to the penalty of fine and imprisonment. In Miss. Levee Commissioners v. Refuge Cotton Oil Co., 91 Miss. 480, the court, in effect, held that the ten dollars per bale here sued for was a penalty, the court there saying: "The tax, or penalty, which ever it may be, of ten dollars per bale, and the fine and imprisonment, are so severe as also to show that they were never intended to be applied to those who dealt in Grabboll or delinted cotton." This is the only case we have been able to find which construes the statute in question or one similar to it. That the statute is a penal statute seems to be concluded by McBride v. State, 70 Miss. 716, and Hodge v. Muscatine County, 106, U.S. 279.

The tax, or penalty, which ever it may be, of ten dollars per bale cannot be imposed if the person removing the cotton without first paying the levee tax did not do so "without the consent of the levee board of said district." It is conceded that the levee board did not expressly consent to the removal of the cotton in question without the levee tax being first paid, but it is earnestly insisted that it impliedly consented thereto under the custom shown by the pleadings and the agreed statement of facts to have been in vogue during all of the time from the year 1922 to the year 1927. The appellant knew of this custom and relied on it in shipping his cotton from the levee district without paying the regular tax on same and in thereafter paying the amount of this levee tax to the Bolivar county bank. He certainly then had no such criminal intent as would be necessary to conviction on a prosecution under the act involved. The appellee, whether it was aware of the fact officially or not, had for five years permitted the practice referred to, and had regularly received into its treasury the monies so paid to the Bolivar County Bank as levee tax on cotton which had been grown in and previously shipped by them from the district. Under these circumstances it would seem to be unconscionable to hold that the appellant had subjected himself to this severe penalty by merely following a custom which all shippers of cotton from the levee district followed and on which he himself relied. That the board could give its implied consent is sustained by the authorities. See Methodist Episcopal Church v. Vicksburg, 50 Miss. 601; Jones Bayou Drainage District v. Sillers, 129 Miss. 13, 91 So. 693.

Walter Sillers, Jr., Louis C. Hallam and J. C. Roberts, for appellee.

Appellant first urges upon the court that the ten dollars per bale imposed by chap. 128, Laws of 1906, and here sued for, is a penalty and not a tax, and hence that he is not liable except for the amount of the regular tax on the one lot of cotton which he admits that no tax at all has been paid by him. The court expressed no opinion on the subject in Miss. Levee Commissioners v. Refuge Cotton Oil Co., 91 Miss. 480, but, on the contrary, elected to pretermit that question. This is clearly shown by the very excerpt from the court's opinion quoted in the appellant's brief. "The tax or penalty, which ever it may be," says the court. The title of an act of the legislature and the heading of a section of an act are no part of the act itself, and in order to ascertain what the law is, one must look to the body of the act. Thus only can the legislative intent be legally discovered. The tax of one-fourth of one cent per pound is the tax fixed by the levee board. This tax of ten dollars per each bale is a tax imposed by the legislature itself. The effect of this enactment is precisely as if the legislature had in the first instance prescribed a tax of ten dollars per bale on all cotton grown in the levee district and had then provided that this tax should be decreased to the amount per pound which the levee board should prescribe, provided such tax which the levee board might fix be paid before the cotton left the district. We cannot agree with counsel for appellant that the cases of McBride v. State, 70 Miss. 716, and Hodge v. Muscatine County, 196 U.S. 279, 49 L.Ed. 477, establish the fact that the ten dollars per bale here sued for is a penalty. As we view the opinions in these cases they hold directly to the contrary. The statute construed in the McBride case makes no mention whatever of a tax. It calls the act of selling or giving away intoxicating liquors an "offense," and for that offense permits a recovery. But sec. 1109, Code of 1880, from which that section was in part formulated, provided a "retail tax" for selling or giving away such liquors, and this court very properly held that under that section the sheriff had the right to assess and collect the tax. That was a privilege tax, and so in the case at bar, the ten dollars per bale fixed by the Act of 1906 is in the nature of a privilege tax assessed, not against the cotton removed, but against the person removing it, for the privilege of removing the cotton without first paying the regular tax fixed by the levee board. The fact that so removing the cotton is also made a criminal offense in no way alters the case. That the legislature may tax an unlawful business, see State v. Romback, 112 Miss. 737, 73 So. 731; Hodge v. Muscatine County, 196 U.S. 276, 49 F. 477; State v. Clark, 189 Iowa 502, 178 N.W. 423; Taft & Co. v. Alber, 185 Iowa 1075, 171 N.W. 721.

It is said by the appellant that although the levee board did not expressly consent to the removal of this cotton from the district before the regular tax had been paid, yet by its acts and conduct during a period of five years, it impliedly consented thereto. It is clear from the agreed statement of facts that the levee board knew nothing about this course of conduct and did not know that the Bolivar County Bank was collecting the regular tax, and it is clearly shown that the Bolivar County Bank did not remit the funds so collected by it to the appellee as a board, but that it either remitted to...