New Orleans, M. & C.R. Co. v. State

• Citation: 70 So. 355,110 Miss. 290
• Decision Date: 20 December 1915
• Docket Number: 18359
• Parties: NEW ORLEANS, M. & C. R. CO. v. STATE
• Court: United States State Supreme Court of Mississippi

70 So. 355

110 Miss. 290

NEW ORLEANS, M. & C. R. CO. v. STATE

No. 18359

Supreme Court of Mississippi

December 20, 1915

APPEAL from the circuit court of Forest county. HON. PAUL B JOHNSON, Judge.

Suit by state of Mississippi against the New Orleans, Mobile &amp Chicago Railroad Company. From a judgment for plaintiff defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Flowers, Brown, Davis & Chambers, for appellant.

George H. Ethridge, Assistant Attorney-General, for the state.

STEVENS J. SMITH, C. J., dissenting.

OPINION

STEVENS, J.

The state, through Ross A. Collins, Attorney-General, and D. L. Thompson, Auditor of Public Accounts, brought this action of debt against appellant, a railroad company incorporated under the laws of Mississippi and operating a line of railroad from Mobile in the state of Alabama, through Mississippi, and to Middleton, Tennessee, to recover the privilege taxes for the year 1914, imposed by chapter 102, Laws of 1912, amending section 3856, ch. 114, of the Code of 1906. Chapter 102 of the Laws of 1912 is as follows:

"An act to increase the privilege taxes on railroads by amending section 3856 of chapter 114 of the Code of 1906.

"Amending Code as to Privilege Tax on Railroads.

"Section 1. Be it enacted by the legislature of the state of Mississippi, that section 3856 of chapter 114 of the Code of 1906, levying privilege taxes on railroads be, and the same is hereby amended so that for the purpose of levying a privilege tax on railroads such railroads are divided into five classes, first, second, third, narrow gauge and levee district, and privilege taxes are levied on them as follows:

"On each railroad of the first class, per mile (mileage within the levee district or districts on which levee taxes are paid, excepted), forty-five dollars.

"On each railroad of the second class, per mile (mileage within the levee district or districts on which levee taxes are paid, excepted), twenty-five dollars.

"On each railroad of the third class, per mile (mileage within the levee district or districts on which levee taxes are paid, excepted), ten dollars.

"On each narrow gauge railroad, per mile (mileage within the levee district or districts on which levee taxes are paid, excepted), two dollars and fifty cents.

"On that part of each levee district railroad of the first class, within the levee district or districts, on which levee taxes are paid, per mile, twenty dollars.

"On that part of each railroad of the second class, within the levee district or districts, on which levee taxes are paid, per mile, fifteen dollars.

"On that part of each railroad of the third class within the levee district or districts, on which levee taxes are paid, per mile, seven dollars and fifty cents.

"On that part of each narrow gauge railroad within the levee district or districts, on which levee taxes are paid, per mile, two dollars and fifty cents.

"Sec. 2. The Railroad Commission shall, annually, on or before the first Monday in August, classify the several railroads according to their charter, 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 said Railroad Commission shall be certified to the auditor of public accounts and the chancery clerk of the county through which each road or roads run; and any person or persons, natural or artificial, who shall exercise any of the privileges taxed herein, without first paying the tax and procuring the tax or license, as required by law, shall be subjected to the pains and penalties imposed by section 3894 of the Code of 1906, and to such other pains and penalties as may be otherwise provided by law.

"Sec. 3. That this act take effect and be in force from and after its passage.

"Approved March 16, 1912."

Appellant was classified by the Railroad Commission as being in the third class and liable for the privilege tax of ten dollars per mile, and, declining to pay this tax, this suit was instituted in the circuit court of Forrest county for the recovery thereof. The declaration charges that appellant does a general intrastate business in the state of Mississippi, and operates a railroad in and through the counties of Green, Jasper, Jones, Forest, Perry, Newton, Neshoba, Winston, Choctaw, Webster, Chickasaw, Pontotoc, Union, and Tippah, and through various municipalities, which are detailed; that the Mississippi Railroad Commission had classified the railroads in the state in accordance with their charters and the gross earnings on intrastate business in the state, and that appellant had been classified as being a third class railroad within the meaning of said statute, and, by virtue of the act in question, was due to the state of Mississippi the sum of ten dollars per mile, or an aggregate sum of three thousand, five hundred and eighty-five dollars and fifty cents; that in addition, each of the municipalities mentioned in the declaration has a right under the laws of of the state to levy a privilege tax not to exceed fifty per cent of the state tax, or five dollars per mile for the mileage within its corporate limits; that a statement of the municipalities and the amounts and their rates on the number of miles within the boundaries of each is attached to the declaration as Exhibit A, and made a part thereof, and that the defendant was due the several municipalities the amount shown in the exhibit; that the privilege tax in question is required to be paid to the auditor of public accounts on or before the first day in December of each year; that the tax is due and unpaid; that demand had been made, and the defendant refused to pay. Exhibit A tabulates the counties, and gives the mileage and total tax due on mileage in each county, and likewise shows a total amount claimed by municipalities of three hundred and one dollars and fifty cents, making a grand total of three thousand, nine hundred and eighty-nine dollars.

A demurrer was interposed to the declaration, attacking the constitutionality of the statute imposing this tax and submitting: First, that the act in question is void because in contravention of article 1, section 8, of the federal Constitution, in that it attempts to interpose a tax upon interstate commerce, and is an attempt to regulate the interstate commerce carried on by the defendant; second, that the act requires the Railroad Commission to classify railroads according to their gross earnings, and imposes a larger or smaller tax according to the amount of gross earnings as compared with the gross earnings of other carriers, and hence imposes a burden upon the interstate commerce of the defendant; third, that the statute contravenes the Fourteenth Amendment to the federal Constitution, in that it deprives the defendant of its property without due process of law and denies to it the equal protection of the law; and, fourth, that the act contravenes section 112 of the Constitution of the state of Mississippi, providing that taxation shall be uniform and equal throughout the state. The demurrer was overruled. The defendant declined to plead further, and judgment final was entered for the full demand sued for. From this judgment, appellant prosecutes an appeal, assigning as error the refusal of the court to sustain the demurrer and to hold the statute void and unconstitutional for the reasons submitted by the several grounds of the demurrer.

The assignment of errors submits that the court erred in holding the act of 1912 constitutional, and does not specify the particular grounds relied on in the court below. Counsel for appellant, in their brief, do not argue the fourth ground of the demurrer; and we take it they concede that section 112 of our state Constitution has no application to the tax here attempted to be imposed and is not really involved in this case.

Chapter 102 of the Laws of 1912 is a re-enactment, with slight variation, of a statute incorporated as section 3379 of the Code of 1892. The contention was made in Railroad Co. v. Adams, 88 Miss. 772, 38 So. 348, that this was an ad valorem and not a privilege tax; and in response, the court said:

"We do not concur in this, but hold that the tax sought to be collected is a privilege tax proper."

It is contended by appellant that the statute is obnoxious to and contravenes the federal Constitution, in that it imposes a burden on the interstate commerce carried on by appellant as an interstate railroad; that the statute embraces all railroads in Mississippi, both interstate and intrastate without excepting from its operation the interstate business carried on by interstate railroads. It is further contended that the act imposes a burden on interstate commerce because of the provision directing the Railroad Commission to classify the several railroads according to the "gross earnings of each," without exempting or excepting the earnings derived from interstate commerce and business done for the United States government. It was the purpose of the statute in question to impose on railroads a privilege tax for doing business within the confines of our state--for doing a purely intrastate business. The whole act and the chapter in which it appears in our Code show a general scheme for imposing an excise or privilege tax on various occupations, businesses, and professions within the confines of our state, to raise revenues in support of our state government, and the act assumes, of course, that the occupation or business taxed is one to be done or carried on within the state. The right of the state to impose a privilege tax on railroads for doing a purely intrastate business is not controverted. Railroad companies by right of eminent domain appropriate...