Hyland v. Sharp

• Decision Date: 25 June 1906
• Citation: 41 So. 264,88 Miss. 567
• Court: Mississippi Supreme Court
• Parties: JOHN L. HYLAND, SHERIFF, ETC., v. WILLIAM C. SHARP

41 So. 264

88 Miss. 567

JOHN L. HYLAND, SHERIFF, ETC., v. WILLIAM C. SHARP

Supreme Court of Mississippi

June 25, 1906

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Sharp the appellee, was plaintiff in the court below; Hyland, the sheriff of the county, appellant, was defendant there.Defendant, believing that the statute was valid, exacted from plaintiff a privilege tax under Laws 1904, ch. 76, sec. 57 p. 58, which, following the first section levying the tax, is in these words, viz.:

"Sec 57.On each individual, firm or corporation doing a money lending business on personal securities, such as household and kitchen furniture, or wearing apparel, pianos, sewing machines, jewelry, silver, glass, plate or ware, whether such loan is secured to the lender by bill of sale of such personal property, or whether such loan is secured by mortgage or deed of trust, $ 500.00."

The suit was for the recovery of the money so exacted, and which plaintiff paid under protest, claiming that the pretended law was unconstitutional.From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Affirmed.

Dabney & McCabe, for appellant.

The assignments of error all raise one simple single question of law, and that is whether or not sec. 57, Laws 1904, p. 71, is unconstitutional and void.

The appellant claims that this question was decided affirmatively in the case of Rodge v. Kelly, ante, 209(40 So 552).It is true, as contended for by appellant, that this court did in that opinion decide that this sec. 57 was unconstitutional; and there is no one more to blame for that decision than ourselves.We were the attorneys for the appellee in that case, and did not argue the case properly.The fact is, we were swept off our feet by the very able brief of the learned counsel for the appellant, but since that time we have looked further into the matter and have changed our minds entirely as to the law of the case.We think that the decision of the court in that case was wrong, and this appeal has been taken, under instructions from the attorney-general of the state, for the express purpose of having the court review and reverse its decision in that case.

The court based its decision in that case upon the ground that the section referred to is class legislation, and is in violation of the 14th amendment to the constitution of the United States.In that view of the question we think that this court is in error for reasons now to be stated.A comparison of sec. 57 of the act of 1904 with the other sections of that act will show, we think, conclusively that the purpose of the legislature in enacting sec. 57 was to classify the business therein defined and to impose a tax thereon for revenue; that there was no purpose on the part of the state to prohibit the business, and this being true, said section is constitutional and valid.

The case relied on by the learned counsel for the appellant in the case of Rodge v. Kelly, supra, and which doubtless had great weight with this court, was one in which a privilege tax similar in many respects to the one under consideration was declared void.That case, however, has no application whatever to the case at bar, because in that case the only question which the court decided was that the charter of the city did not authorize it to impose a privilege tax on a lawful business which was, in effect, prohibitory of that business.In other words, that court did not decide that the legislature did not have the right or power to impose a privilege tax that would, in effect, prohibit that business, but on the contrary, clearly indicated that it might have done so.

The case of Gundling v. Chicago, 177 U.S. 183, is, we think, precisely in point, and decisive of this question.

Anderson & Voller, for appellee.

We do not suppose that it is necessary to present any argument in this court on the constitutionality of the act, as that has been thoroughly argued in the Rodge case, and the act declared unconstitutional.

We have carefully read the case of Gundling v. Chicago,177 U.S. 183, referred to and relied on by counsel, and the one which they say brought about their wonderful conversion and change of conviction on their part, and we find nothing whatever in that case that even remotely bears, in our judgment, upon the case involved.It cannot, in our opinion be considered for a moment as authority for the contention of counsel for appe...