Postal Telegraph & Cable Co. v. Robertson

• Decision Date: 15 October 1917
• Docket Number: 19812
• Citation: 116 Miss. 204,76 So. 560
• Parties: POSTAL TELEGRAPH & CABLE CO. v. ROBERTSON, STATE REVENUE AGENT
• Court: Mississippi Supreme Court

76 So. 560

116 Miss. 204

POSTAL TELEGRAPH & CABLE CO. v. ROBERTSON, STATE REVENUE AGENT

No. 19812

Supreme Court of Mississippi

October 15, 1917

Division B

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Suit by Stokes V. Robertson, State Revenue Agent, against the Postal Telegraph & Cable Company. From a judgment for plaintiff defendant appeals.

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

Judgment affirmed.

Mayes & Mayes, for appellant.

Flowers, Brown, Chambers & Cooper, for appellee.

OPINION

ETHRIDGE. J.

The state revenue agent brought suit against the Postal Telegraph-Cable company for privilege taxes due for the years 1904 to 1915, inclusive, to the Yazoo-Mississippi Delta levee-district; said privilege taxes being levied by the said levee district under chapter 80 of the Laws of 1902. The board of levee commissioners, acting under chapter 80 of the Laws of 1902, in the year 1904 imposed a privilege tax upon telegraph companies, operating less than one thousand miles of line, of twenty five cents for each mile. This act was passed by the May session, 1904, of said board of levee commissioners and imposed a privilege tax effective July 1, 1904. Other privilege taxes were imposed at different dates set out in the pleadings up to 1912, but the amount of privilege taxes on telegraph companies was not changed. Three hundred and sixty miles of telegraph line were operated in this district by the Postal Telegraph-Cable Company during each of the said years 1904 to 1915, both years inclusive; the mileage of different counties being set out in the declaration. The privilege taxes for each year amounted to ninety dollars, and the statute providing a penalty of ten per cent. of the amount for nonpayment. Suit was brought for ninety-nine dollars for each of the said years, amounting to one thousand one hundred and eighty eight dollars. Interrogatories were propounded under the statute to the telegraph company, a nonresident of the state, and its answers show that it did do business within the district for each of the said years, and that the total mileage it operated in the district was 359.07 miles. The telegraph company filed several special pleas as a defense to the suit.

Special plea No. 1 alleges that chapter 80 of the Laws of 1902 is null and void because the act is alleged not to have been published four weeks prior to the introduction of the act in the legislature, as required by section 234 of the state Constitution.

The second special plea alleges that the power to tax by the act of 1902 was conferred on the board of levee commissioners of the Yazoo-Mississippi Delta, and that there is no such levee commission authorized by the law; that the Constitution creates a board of levee commissioners for the Yazoo-Mississippi Delta levee district; and that the act of the board is void because chapter 80 of the Laws of 1902 does not confer authority on the commissioners of Yazoo-Mississippi Delta levee district.

The third special plea is that the act of 1902 is void because it authorizes a privilege tax to be levied without regard to the benefits derived by any property, business, or avocation, and that the law authorizes the board to act without any guide or direction, and only fixes the maximum of each privilege tax; and that the act does not require all privileges to be taxed, nor that they shall be taxed uniformly or to the maximum authorized, but that the tax on one privilege might be the full value authorized by the Laws of 1902, chapter 80, and tax of another privilege one-half of the maximum authorized by the said law; and that the act intended to invest the board with absolute and arbitrary power, and that by reason thereof the act violates section 112 of the State Constitution and section 1 of the Fourteenth Amendment to the Constitution of the United States.

The fourth special plea alleges that the proceedings to impose privilege taxes is void and unconstitutional, and that sections 1 and 2 of the act of 1902 undertake to authorize the commissioners to determine for themselves what taxes will be levied and what amount within the maximum fixed by law, only by an order entered on the minutes of the board, and there is no requirement for any publication of such order so entered, and no requirement of any notice to be given persons exercising the privilege to be taxed, and that the telegraph company was never in fact notified of the passage of such ordinance until 1916 when demand was made upon it by the state revenue agent; and that the ordinance, if given effect, would be taking the property of the defendant without due process of law and without the equal protection of the law under the Fourteenth Amendment.

The first plea was replied to and the allegation that notice was not published prior to the introduction of the bill in the legislature creating chapter 80 of the Laws of 1902 was denied and the other pleas were demurred to, the demurrers sustained, and defendants, declining to plead further, judgment was entered in favor of the revenue agent.

A person was sent to Clarksdale in 1916 to investigate as to the publication of chapter 80 of the Laws of 1902, but no file of the paper, or any paper, published at Clarksdale, the domicile of the levee board, for the years 1901 and 1902 could be found. No file of the paper or issue of any paper during the years 1901 and 1902 was found in said city. It was shown that one paper had gone out of business long since, and no files could be found of that paper during this period of time. It is contended by the...