Hattiesburg Grocery Co. v. Robertson, 21739

CourtMississippi Supreme Court
Writing for the CourtPER CURIAM.
Citation89 So. 369,126 Miss. 655
Decision Date11 July 1921
Docket Number21739
PartiesHATTIESBURG GROCERY CO. v. ROBERTSON, State Revenue Agent

89 So. 369

126 Miss. 655

HATTIESBURG GROCERY CO.
v.
ROBERTSON, State Revenue Agent

No. 21739

Supreme Court of Mississippi

July 11, 1921


SYKES, J., dissenting.

OPINION

PER CURIAM.

Suggestion of error overruled.

DISSENT BY: SYKES

SYKES, J. (dissenting).

When we held this income tax law constitutional as being an excise and not a property tax, I had serious doubts as to the correctness of this holding, but at that time those doubts did not arise to a degree of certainty which impelled me to dissent. Upon a re-examination of the authorities and a careful analysis of our opinion I have come to the conclusion that we erred, and that the suggestion of error should be sustained.

In my judgment this is a property tax, and as such is violative of section 112 of the Constitution. It is a property tax, because it taxes incomes derived or received from property, real, personal, and mixed; and the unconstitutional tax on property cannot be separated from the tax derived from incomes, professions, callings, and vocations. In the opinion in this case it is said that:

"No definition of income can be framed under which it can be dissociated from the activities of the person who produced or received it, so that a tax on income necessarily includes among its elements the production or receipt of property, . . . and to that extent is a tax on the performance of an act resulting in gain to the person performing it, and the rule is, . . . that when the tax is imposed [126 Miss. 656] on the performance of an act, it will not be classified as a tax on property, although it is proportioned in amounts to the value of the property used in connection with or produced by the act which is taxed." 88 So. 4.

In my judgment this conclusion of the court is contrary to previous decisions of this court. In the case of Thompson, Auditor v. Kreutzer, 112 Miss. 165; 72 So. 891, it was held that chapter 112, Laws of 1912, which provided for an annual privilege tax, or occupation fee of twenty cents an acre upon each person, etc., pursuing the business of buying, owning, or holding more than one thousand acres of timber lands was a property tax, and therefore violative of section 112 of the Constitution. In that opinion it is stated that:

"Ownership is not a privilege conferred by government, but is one of the rights which governments were organized to protect. . . . In a strict legal sense 'property' . . . is synonymous with the 'right of ownership' and means one's exclusive right of possessing, enjoying, and disposing of a thing. . . .

"Property may also be, and in the section of the Constitution here under consideration is, used to signify 'things owned.' In order that a thing may be owed, some one must, of course, have a right to the ownership thereof. A tax on a thing is a tax on all its essential attributes; and a tax on an essential attribute of a thing is a tax on the thing itself. So that, a tax on a thing owned is necessarily a tax on the right of ownership thereof; and a tax on the right of ownership of a thing is necessarily a tax on the thing itself. No definition of property can be framed which does not include the right of ownership. Consequently, no tax can be imposed on the right of ownership which is not also a tax on property."

As I construe this case it means that by virtue of the ownership of property one has the right of possessing, enjoying, and using this property in every lawful manner in which he sees proper, and that as a necessary incident to the ownership of this property he has the right to rent, [126 Miss. 657] lease, or cultivate the property, if it be land, and that all of these rights are mere incidents of ownership, and that necessarily a tax on the income received from this property is a tax on its user, and therefore a tax on the property itself. It is in reality a tax on the ownership of the property because by virtue of this...

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4 practice notes
  • Fernwood Lumber Co. v. Mississippi State Tax Commission, 30655
    • United States
    • Mississippi Supreme Court
    • September 25, 1933
    ...the Income Tax Act of 1924 is unconstitutional, recognizing that thereasto Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4, 126 Miss. 655, 89 So. 369, and Knox v. G. M. & N. Co., 138 Miss. 70, 104 So. 689, are conclusive, [167 Miss. 278] but having admitted the general validity......
  • State ex rel. Knox v. Gulf, M. & N.R. Co., 25044
    • United States
    • Mississippi Supreme Court
    • June 1, 1925
    ...Note: In reporting the case of Hattiesburg Grocery Company v. Robertson, State Revenue Agent, No. 21739 in 126 Miss. 34, 88 So. 4, 89 So. 369, the dissenting [138 Miss. 94] opinion of Mr. Justice SYKES on the suggestion of error was not included in the official reports. It is, therefore, ap......
  • Dooley v. City of Detroit, Nos. 53
    • United States
    • Supreme Court of Michigan
    • May 9, 1963
    ...in his article. Ludlow-Saylor Wire Co. v. Wollbrinck (1918), 275 Mo. 339, 205 S.W. 196; Hattiesburg Grocery Company v. Robertson (1921), 126 Miss. 655, 89 So. 369; Sims v. Ahrens (1925), 167 Ark. 557, 271 S.W. 720; and Featherstone v. Norman (1930), 170 Ga. 370, 153 S.E. 58, 70 A.L.R. 449. ......
  • Witty v. Ellsberry Drainage Dist., 21950
    • United States
    • United States State Supreme Court of Mississippi
    • July 11, 1921
    ...The court has decided this identical question in Huston v. Mayo, 120 Miss. 523, 82 So. 334, in which it was held that a drainage [126 Miss. 655] district was not a municipality nor taxing district in the meaning of this statute; therefore it had no application to such districts. Affirmed an......
4 cases
  • Fernwood Lumber Co. v. Mississippi State Tax Commission, 30655
    • United States
    • Mississippi Supreme Court
    • September 25, 1933
    ...the Income Tax Act of 1924 is unconstitutional, recognizing that thereasto Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4, 126 Miss. 655, 89 So. 369, and Knox v. G. M. & N. Co., 138 Miss. 70, 104 So. 689, are conclusive, [167 Miss. 278] but having admitted the general validity......
  • State ex rel. Knox v. Gulf, M. & N.R. Co., 25044
    • United States
    • Mississippi Supreme Court
    • June 1, 1925
    ...Note: In reporting the case of Hattiesburg Grocery Company v. Robertson, State Revenue Agent, No. 21739 in 126 Miss. 34, 88 So. 4, 89 So. 369, the dissenting [138 Miss. 94] opinion of Mr. Justice SYKES on the suggestion of error was not included in the official reports. It is, therefore, ap......
  • Dooley v. City of Detroit, Nos. 53
    • United States
    • Supreme Court of Michigan
    • May 9, 1963
    ...in his article. Ludlow-Saylor Wire Co. v. Wollbrinck (1918), 275 Mo. 339, 205 S.W. 196; Hattiesburg Grocery Company v. Robertson (1921), 126 Miss. 655, 89 So. 369; Sims v. Ahrens (1925), 167 Ark. 557, 271 S.W. 720; and Featherstone v. Norman (1930), 170 Ga. 370, 153 S.E. 58, 70 A.L.R. 449. ......
  • Witty v. Ellsberry Drainage Dist., 21950
    • United States
    • United States State Supreme Court of Mississippi
    • July 11, 1921
    ...The court has decided this identical question in Huston v. Mayo, 120 Miss. 523, 82 So. 334, in which it was held that a drainage [126 Miss. 655] district was not a municipality nor taxing district in the meaning of this statute; therefore it had no application to such districts. Affirmed an......

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