Hamel v. Marlow

• Decision Date: 10 December 1934
• Docket Number: 31352
• Citation: 157 So. 905,171 Miss. 559,157 So. 255
• Court: Mississippi Supreme Court
• Parties: HAMEL v. MARLOW, SHERIFF AND TAX COLLECTOR

157 So. 255

157 So. 905, 171 Miss. 559

HAMEL v. MARLOW, SHERIFF AND TAX COLLECTOR

No. 31352

Supreme Court of Mississippi

December 10, 1934

Division A

October 29, 1934

APPEAL from the chancery court of Sunflower county HON. J. L WILLIAMS, Chancellor.

Suit by C. A. Hamel and others against W. D. Marlow, Jr., Sheriff and Tax Collector. From a judgment rendered against the complainants jointly and severally on dissolution of an injunction which had been granted complainants, C. A. Hamel appeals. Modified.

On suggestion of error. Judgment set aside and new judgment rendered.

For former opinion, see 157 So. 255.

Decree modified. Judgment set aside.

Frank E. Everett, of Indianola, for appellant.

It is our contention that any number of taxpayers complaining of the same statute imposing taxes upon them can join in one bill of complaint and each receive an individual adjudication of his rights.

Sections 420 and 422, Code of 1930.

In Bullen v. Smith, 111 So. 454, this court held that the amount of taxes owing and ten per cent damages, as provided by statute, was the only amount that could be decreed against the taxpayer.

The statute authorizing taxpayers to bring a suit to enjoin the collection of taxes which they deem to be unlawful, gave these complainants the right to bring a joint suit.

This section 420, Code of 1930, authorizing suits by one or more taxpayers and the complainants each having grounds for equitable interference in the collection of this tax, they having a community of interest in the subject-matter, a common right involved and a common purpose in pursuit of a common adversary where each could resort to equity, had a perfect right to join in one bill of complaint as they did and it was the duty of the court to adjudicate the rights of each separately.

Tribbett v. Railroad Co., 70 Miss. 188, 12 So. 32; Telephone Co v. Williams, 101 Miss. 1, 57 So. 559; Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 So. 298; Roberts v. Burwell, 117 Miss. 469, 78 So. 357; Y. & M. V. Railroad v. McConnell, 90 So. 321; Griffith's Chancery Practice, par. 139, p. 139.

The purpose of the Legislature in adopting section 238, chapter 89, Laws of 1932, was to prevent delinquencies in the payment of privilege tax, and cause them to be taken out in the very beginning of business, or renewed promptly upon the expiration of the prior license.

It was not the purpose of the Legislature to place a penalty upon any citizen engaged in business, which required a privilege tax, or to subject him to a criminal prosecution as is provided in section 238, chapter 89, Laws of 1932, relied upon by appellee for exercising his rights to attack as unconstitutional, a statute so oppressive in its nature and requirements, that, to comply therewith would close his business and visit upon him the injustices as the statute attacks in the bill of complaint in this case.

A law imposing a privilege tax should be liberally construed in favor of citizens sought to be assessed with the tax.

Vicksburg & Meridian Ry. Co. v. State, 62 Miss. 105; State ex rel. Attorney-General, v. Grenada Compress Co., 123 Miss. 191, 85 So. 137; Board of Levy Commissioners v Howze Mercantile Co., 149 Miss. 843, 116 So. 92; Ex parte Taylor, 58 Miss. 478; Bluff City R. R. Co. v. Clark, 95 Miss. 689, 49 So. 177; State v. Union Tankcar Co., 151 Miss. 797, 119 So. 310; Pan-American Pet. Corp. Co. v. Miller, 154 Miss. 565, 122 So. 393; McKenzie v. Adams-Bank Lumber Co., 157 Miss. 482, 128 So. 334; L. H. Conard Furniture Co. v. Mississippi Tax Commission, 160 Miss. 185, 133 So. 652; Gulley v. Jackson International Co., 165 Miss. 103, 145 So. 905; Town of Utica v. State, 166 Miss. 565, 148 So. 635; Mayor and Aldermen of Jersey City v. New York Bay Ry. Co., 13 F.2d 982.

J. A. Lauderdale, Assistant Attorney-General, for appellee.

The entry of the joint decree against the complainants was not error.

Bullen v. Smith, 111 So. 454, 146 Miss. 316.

Complainants in the court below have a matter of common cause, and having made and filed a joint bond, they cannot now be heard to say that the liability of each should be adjudged separately.

Appellant cites no authority to sustain his contention that he is only liable for the amount of the tax due by him, and under the holding of this court in the case of Johnson v. State, 122 So. 529, 154 Miss. 512, this cause should be affirmed.

My contention is that when Hamel failed to pay the three hundred dollars privilege tax due by him to the state during the month in which it was due that he thereby became and was liable for double the amount of the tax, or, in other words, six hundred dollars instead of three hundred dollars.

When Hamel failed to renew his license during the month in which it was due, then the amount due the state was six hundred dollars and the amount due the levee district was six hundred dollars, and under the provisions of section 421, Code of 1930, the tax collector was entitled to ten per cent of the amount due.

OPINION

Smith, C. J.

This is an appeal from a judgment awarding damages on the dissolution of an injunction. Hamel, Sealy, and Ganong each separately owned and conducted a billiard and pool hall in Sunflower county, on each of which the sheriff and tax collector was attempting to collect the privilege tax due thereon under chapter 89, Laws of 1932. Whereupon they filed a joint bill of complaint against the sheriff and tax collector, setting forth separate ownership of the three billiard and pool halls, the privilege tax that would become due thereon under the statute which they alleged violated certain sections of the Constitution, and praying for an injunction restraining the collection of the taxes against each of them. A preliminary injunction was granted and served on the appellee. Afterwards, on motion by the sheriff, an order was entered directing the complainants to execute a new bond, which they failed to do, and thereafter the injunction was dissolved, the cause dismissed, and a decree was rendered on the bond, awarding the sheriff and tax collector a judgment against the complainants jointly and severally and the sureties on their injunction bond for the full amount of the privilege taxes due by all of the complainants, with ten per cent. interest thereon. Hamel alone appeals.

The appellant's complaint is that the decree should have awarded a judgment against him only for the privilege taxes due by him, with the statutory ten per cent. damages added thereto. The writ of injunction enjoins the appellee from "collecting or attempting to collect from the complainants, or either of them, privilege tax for the operation of billiard and pool halls." The injunction bond recites that:

"We E. E. Sealy, A. M. Ganong, and C. A. Hamel, principals, and Terry Wilson and Chas. Klingman, Sureties, are held and firmly bound unto W. D. Marlow, Jr., tax collector, in the sum of twenty-five hundred ($ 2,500) dollars. . . . The condition of the above obligation is such, that, whereas the above bound principals have this day obtained from the Honorable James L. Williams, Chancellor, a writ of...