Gulf & S.I.R. Co. v. Adams

• Decision Date: 09 December 1907
• Docket Number: 12635,12636,12571,12572
• Citation: 90 Miss. 559,45 So. 91
• Parties: GULF & SHIP ISLAND RAILROAD COMPANY v. WIRT ADAMS, STATE REVENUE AGENT (TWO CASES) AND YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. WIRT ADAMS, STATE REVENUE AGENT (TWO CASES)
• Court: Mississippi Supreme Court

45 So. 91

90 Miss. 559

GULF & SHIP ISLAND RAILROAD COMPANY v. WIRT ADAMS, STATE REVENUE AGENT (TWO CASES) AND YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. WIRT ADAMS, STATE REVENUE AGENT (TWO CASES)

No. 12635, 12571, 12572, 12636

Supreme Court of Mississippi

December 9, 1907

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Adams State Revenue Agent, the appellee, was plaintiff in all the suits; the Gulf & Ship Island Railroad Company, appellant was defendant in two of them and the Yazoo & Mississippi Valley Railroad Company, appellant, was defendant in the other two. The defendants, appellants, demurred to the respective declarations against them and the court below overruled the demurrers in each case. The defendants did not ask to plead further and final judgment in each case was rendered in plaintiff's favor and the defendants each appealed to the supreme court in the cases against them respectively.

The suits were efforts by the State Revenue Agent to recover of the defendants, railroad companies, the additional privilege taxes of $ 10 per mile for several years--the two suits against each defendant were for taxes of different years--assessed by the Railroad Commission against them under sec. 66, p. 23, Laws 1898, as being railroads "claiming exemption from state supervision under maximum and minimum provisions of their charters."

Judgment reversed and dismissed.

On each railroad of first class, per mile

$ 20 00

On second class per mile

15 00

On third class per mile

10 00

On narrow gauge per mile

2 00

On each railroad claiming exemption from state super-

vision under maximum and minimum provisions in

their charter, an additional privilege tax, per mile of

10 00

"The Railroad Commission shall annually, on or before the first Monday of August, classify the several railroads according to such charter exemption claims and the gross earnings of each and the privilege taxes thereon shall be paid on or before the first day of December, and the findings of the railroad commission shall be certified to the auditor of public accounts, and the chancery clerks of the counties through which each road runs."

Section 19 of the Gulf & Ship Island charter, under which exemption from state supervision was claimed, is as follows:--

"Section 19. Be it further enacted, that said company shall have and possess the power of fixing, from time to time, by its board of directors, the rates at which it will do express or telegraph business, and also the rates at which said company will transport persons or property over its railroads and branches; provided said last mentioned rates shall not exceed four cents per mile for each passenger, nor exceed the following rates on freights: sixty-five cents per hundred pounds for transporting first, or second class freights one hundred miles or less; forty-five cents per hundred pounds for transporting third or fourth class freight one hundred miles or less; thirty-two cents per hundred pounds for transporting fifth or sixth class freights one hundred miles or less (reference being had herein to the classification of freights now recognized and observed on the existing line between New Orleans and Jackson, Mississippi); but in no case shall the railroad company be limited to a less charge than twenty-five cents, for the transportation of any passenger, or parcel, or package or article, however short the distance. The rates so established from time to time by said board of directors, for transporting persons or property as a railroad company, not exceeding the maximum rates for said railroad business as above set out, may be charged and collected by said company."

Section 6 of the Yazoo & Mississippi Valley charter, under which exemption from state supervision was claimed, is as follows:--

"Section 6. Be it further enacted that said company shall have and possess the power of fixing, from time to time, by its board of directors, the rate at which it will do express and telegraph business, and shall transport other express companies as may apply for transportation over its line, at a just and reasonable rate of compensation, and also the rate at which said company will transfer persons or property over its railroad and branches, provided said last-mentioned rates shall not exceed four cents per mile for each passenger, nor exceed the following rates of freight: Sixty-five cents per hundred pounds for transporting first or second class freight, one hundred miles or less; forty-five cents per hundred pounds for transporting third and fourth class freights one hundred miles or less; thirty-two cents per hundred pounds for transporting fifth or sixth class freight one hundred miles or less (reference being had herein to the classification of freights now recognized and observed on the existing railroad line between New Orleans, La., and Jackson, Miss). But in no case shall the railroad be limited to a less charge than twenty-five cents for the transportation of any passenger, parcel, package, or article, however short the distance. The rates so established from time to time by the board of directors for transporting persons or property as a railroad company, not to exceed the maximum rates for railroad business as above set out, may be charged and collected by said company. . . . Provided, further, that as to lumber, coal, iron, salt, machinery, fertilizer, bricks, lime, agricultural implements, steam engines, and boilers, and other freights transported in car load lots, rates may be made by special agreement between the shippers and the company for such sum as they may agree upon; but in all such cases the same rates shall be given to any shipper of an equal quantity at the same time, under similar circumstances, of similar freight between the same points. Nothing herein contained shall prevent the railroad company from making such reduction of rates below the minimum herein fixed as it may elect to do for the purpose of fostering, aiding and developing resources of the country penetrated by its railroad branches."

Suits between the same parties involving the validity of the statute, Laws 1898, p. 23, sec. 66, were heretofore decided by this court. Railroad Co. v. Adams, 83 Miss. 306, 36 So. 144, Railroad Co. v. Adams, 85 Miss. 772, 38 South,. 348. The cases first cited (83 Miss. 36 South.) were suits for the additional privilege taxes for the years 1898, 1899, 1900, 1901 and 1902, and, while involving the constitutional question now decided, they were resolved in favor of the railroad companies because of a failure on the part of the state railroad commission to classify them under the statute as being liable for the additional tax; the constitutional question was reserved because unnecessary to the decision of those cases. The second appearance of the suits between the same parties (85 Miss. 38 South.) involving the same statute arose from an effort of the state revenue agent to have the state railroad commission back classify the appellants so that the back classification could be made the basis for collecting the additional tax which had been adjudged uncollectible for want of such a classification. These cases also involved the constitutional question decided in the present cases, but it was again pretermitted, the court holding that there was no power in the railroad commission to back classify under the statute. The present suits were respectively for the taxes of 1903 and 1904, for which years the state railroad commission had formally classified the appellants as being liable for the additional $ 10 per mile privilege tax."

McWillie & Thompson, and J. H. Neville, for appellant, the Gulf & Ship Island Railroad Company.

The charter of appellant company, of which this court takes judicial notice, Mississippi Railroad Commission v. Gulf & Ship Island Railroad Co., 78 Miss. 750, is found, Laws of Mississippi 1882, pp. 849-862.

Is section 66, Laws 1898, p. 23, constitutional?

The section violates both the state and national constitutions, in this: that it impairs the obligations of contracts between the state and appellant, evidenced by the nineteenth section of appellant's charter.

Equality and uniformity, as far as the same can be obtained, are required in the imposition of privilege as well as ad valorem taxes. This was decided by this court in the case of Adams, State Revenue Agent v. Mississippi Lumber Co., 84 Miss. 23 S.C. 36 So. 68. We have not failed to observe the case of Clarksdale Insurance Agency v. Cole, 87 Miss.; 637, wherein the court seems to have ignored the Mississippi Lumber Co. case (84 Miss. 23). We trust the two cases can be reconciled, but whether they can be or not, we think the earlier decision the correct one. The court, however, is respectfully referred to what Judge Cooley says on the subject, Cooley on Taxation (2d ed.) p. 169-170.

"But are there not cases which on their faces are manifestly so unequal and unjust as to furnish conclusive evidence that equality has not been sought for, but avoided; that oppression, not justice, was desired, and confiscation, not taxation, intended? Such cases it is surely possible to conceive, and if such has never been the intent of the legislation, it is certain that it has sometimes been the result.

"A license tax might not be unjust though laid upon a single occupation, provided that it was so laid that none who followed that occupation escaped it. Let it reach all of the class, either of persons, or things, it matters not whether those included in it be one or many, or whether they reside in any particular locality or are scattered all over the state. But when, for any reason, it becomes discriminative between individuals of the class taxed, and selects some for an...