Price v. Haney

• Decision Date: 05 October 1936
• Docket Number: 31988
• Citation: 165 So. 815,176 Miss. 471
• Court: Mississippi Supreme Court
• Parties: JOE S. PRICE, AUDITOR et al. v. J. S. HANEY

165 So. 815

176 Miss. 471

JOE S. PRICE, AUDITOR et al. v. J. S. HANEY

No. 31988

Supreme Court of Mississippi

October 5, 1936

(Division A.) ON SUGGESTION OF ERROR. (Division A. Oct. 5, 1936.) [169 So. 832. No. 31988.]

Division A

February 17, 1936

1 AUTOMOBILES.

Injunction should have been denied truck driver seeking to enjoin state highway patrolman, deputy sheriff, and state auditor from interfering with his truck in attempting to collect additional license tax, since truck driver might have had a plain, adequate remedy at law in legal proceedings which auditor would have begun against him had auditor not been prevented by replevin suit brought by truck driver (Laws 1934, chap. 126, secs. 19, 20; Code 1930, sec. 5582).

2 AUTOMOBILES.

Highway patrolman properly seized and impounded truck, which was being used to haul load exceeding that allowed by privilege tax paid by truck owner, pending necessary proceedings to enforce payment of additional license tax (Laws 1934, chap 126, secs. 19, 20; Code 1930, sec. 5582).

3 AUTOMOBILES.

Evidence that truck which was used to haul load exceeding that allowed by privilege tax paid by truck owner was seized and impounded by highway patrolman pending proceedings to enforce payment of additional license tax held not to show that state auditor intended to hold truck indefinitely without instituting required legal proceedings, where truck driver brought replevin two days later preventing auditor from instituting legal proceedings (Laws 1934, chap. 126, secs. 19, 20; Code 1930, sec. 5582).

4. AUTOMOBILES.

Evidence that highway patrolman seized and impounded truck for two days which was used to haul load exceeding that allowed by privilege tax paid by truck owner pending necessary proceedings to enforce payment of additional license tax held not to entitle truck driver to damages in suit by him for injunction (Laws 1934, chap. 126, secs. 19, 20; Code 1930, sec. 5582).

APPEAL from chancery court of Simpson county HON. T. PRICE DALE, Chancellor.

Reversed and bill dismissed.

On suggestion of error. Suggestion of error overruled.

Reversed and bill dismissed. Suggestion of error overruled.

W. W. Pierce, Assistant Attorney-General, for appellants.

Under chapter 126 of the Laws of 1934 it is made the duty of the State Auditor of Public Accounts to enforce the provisions thereof and to administer the act.

The Auditor's duties, with reference to trucks, are set out in part in the last paragraph of section 20 of chapter 126 of the Laws of 1934, as follows:

"All taxes, penalties and costs imposed by this act shall constitute a first lien on any motor vehicle operated in violation of the provisions hereof, and any such motor vehicle shall be subject to being seized and impounded to enforce collection thereof. Any sheriff, deputy sheriff, constable, police officer or any other officer authorized to make an arrest is hereby authorized to arrest without warrant any person operating or driving any motor vehicle contrary to the provisions of this act within the limits of their respective jurisdiction and/or to seize and impound any motor vehicle being operated in violation of the provisions hereof. In case of such arrest or seizure, proceedings shall be had as provided by section 5582 of the Code of 1930."

Under the law of this state a person who contends that an illegal or excessive tax is required of him may pay the tax under protest to the officer whose duty it is to collect the tax and notify such officer what his contentions are and of his intention to sue such officer for such tax. When this is done the taxpayer has the right of action against such officer for the taxes so paid. This rule of law has been settled many, many years ago in this state.

Coulson v. Harris, 43 Miss. 728; Turtle v. Everett, 51 Miss. 27; City of Vicksburg v. Butler, 56 Miss. 72; Richardson v. Scott, 47 Miss. 236; Maury v. Smith, 46 Miss. 81; Drysdale v. Pradet, 45. Miss. 445.

The chancery court shall have jurisdiction of suits by one or more taxpayers in an any. county city, town or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.

Section 420, Code of 1930; Anderson v. Ingersoll, 62 Miss. 73; Board: of Supervisors v. Ames, 3 So. 37.

From the above decisions it is clear that complainant had a full, adequate and complete remedy at. law by paying the tax and filing suit to recover such taxes so paid, together with all damages sustained. He exercised that right. However, if he had not exercised that right it is apparent from the holdings of our court that even under the provisions of section 420 of the Mississippi

Code of 1930, which is the only authority, statutory or otherwise, giving the chancery court jurisdiction to restrain the collection of taxes levied or attempted to be collected without authority of law, equity has no jurisdiction where there is an adequate remedy at law.

Our court recognized that right in Price v. Haney, 174 Miss. 176, 163 So. 684, where Division B of this court in deciding that cause, filed in the circuit court of Simpson county and growing out of the identical facts involved here, said: "Appellee (Haney) had an easy and effective way of regaining possession of his truck by paying the additional taxes."

Aside from what we have heretofore said in this brief, it is a well-settled rule of law in this state that equity has no jurisdiction and will not enjoin the institution of criminal proceedings, even though such proceedings are groundless.

Crighton v. Dahmer, et al., 70 Miss. 602; Pleasants v. Smith, 90 Miss. 440; Davis v. Fortenberry, 114 Miss. 294; Edwards v. DeVance, 138 Miss. 580.

There is, of course, an exception to the above general rule and that is where the exercise of a property right is sought to be interfered with by repeated prosecutions under a void statute or ordinance equity will entertain jurisdiction and grant an injunction.

Fitzhugh v. City of Jackson, 132 Miss. 588; Hobbs v. Germany, 94 Miss. 469; Edwards v. DeVance, 138 Miss. 580; Knight v. Johns, 161 Miss. 519.

The case at bar cannot be brought within the exception to the general rule for the reason that the statute under which appellants were proceeding was not void, but, on the contrary, was a constitutional and valid statute.

Hudson v. Stewart, 166 Miss. 339; State, ex tel. Rice v. Evans-Terry Co., 173 Miss. 526; Evans-Terry Co. v. Miss., ex tel. Rice, 80 U. S. Sup. Ct., L, Ed., 94.

The statute being valid the court will not enjoin the appellants as public officers in the enforcement of such statute merely because of an alleged invasion of constitutional rights.

Moss v. Mississippi Livestock Sanitary Board, 154 Miss. 765; Gray v. Miss. Livestock Sanitary Board, 122 So. 783; Adams v. Miss. Livestock Sanitary Board, 126 So. 204.

It is manifest that the chancery court was without jurisdiction to entertain the present suit and for that reason the decree appealed from should be reversed and the bill of complaint dismissed.

Hannah & Simrall, of Hattiesburg, for appellee.

We most respectfully submit that this court erred when, in the beginning of its opinion it says, "This case is a companion to, and is ruled by Price v. Haney, 163 So. 684," and then in the ending says. "Reversed and Bill Dismissed." If the court is correct about this case being ruled by Prince Haney, 163 So. 684, 174 Miss. 176, (and we agree this is correct) then the "Reversed and Bill Dismissed" should be changed to "Affirmed."

In the case of Price v. Haney, decided by Division B of this court, it is stated and held that "under the plain provisions of the statute Greet had a right to seize and impound the truck pending the necessary legal proceedings to enforce the payment of the additional license tax. It is true he had no right to hold the truck indefinitely without taking steps for that purpose." And then Division B added, "However, the record does not show an unreasonable delay; he seized the truck on the eighth of August, and on the tenth appellee brought replevin proceedings for it." The conclusion is inescapable that the ground or reason for the holding was this last quoted sentence.

It is our understanding that Division B of this court exonerated Price, from any liability solely on the ground that "the record does not show an unreasonable delay;" whereas, in the case at bar, the appellant cannot be exonerated on this ground, first and foremost because he has neither pled nor relied on it, but on the contrary the record positively and affirmatively reflects that he had no purpose or intention of ever taking any steps to collect this tax, other than to hold appellee under arrest so that he could not operate on the public highways.

The appellant could not be exonerated in this case on the same ground as he was exonerated in the prior case for the further reason that only forty-eight hours (approximately) had elapsed between the original seizure and the restoration under the replevin writ; whereas, approximately, ninety-six hours had elapsed between the original seizure and the restoration under the writ of injunction. In other words, the factual situation in the case at bar is wholly different to the factual situation in the prior case of Price v. Haney.

The court obviously, we believe, misunderstood the facts in holding that the state auditor had the right to retain the license tag and restore the same to Haney along with the truck. This for the reason that when the appellant seized the truck he required the appellee to remove the license tag therefrom. Thereafter the possession of the truck was legally and rightfully restored to the appellee under a writ of replevin forthcoming bond. The tag being, as the court holds,...