Riley v. Ammon

• Decision Date: 10 May 1926
• Docket Number: 25544
• Citation: Riley v. Ammon, 143 Miss. 861, 108 So. 296 (Miss. 1926)
• Court: Mississippi Supreme Court
• Parties: RILEY, STATE AUDITOR, v. AMMON. [*]

108 So. 296

143 Miss. 861

RILEY, STATE AUDITOR, v. AMMON. ^[*]

No. 25544

Supreme Court of Mississippi

May 10, 1926

Division B

1 LICENSES. Levee district board held to have no authority to collect privilege tax from owner of billiard hall (Laws 1918 chapter 155, amending Laws 1912, chapter 104, section 1; Laws 1902, chapter 80; Code 1906, section 4346 [Hemingway's Code, section 6890]).

Under Laws 1918, chapter 155, amending Laws 1912, chapter 104 section 1, levee district board had no authority to collect privilege tax from owner of billiard hall, Laws 1902, chapter 80, having been repealed by the above law, and privilege tax collected by levee district board may be recovered under Code 1906, section 4346 (Hemingway's Code, section 6980).

2. STATUTES. It will be presumed that legislature, in passing law levying privilege tax, and prohibiting additional levy by levee districts, complied with constitutional requirements relative to publication (Laws 1918, chapter 155, amending Laws 1912, chapter 104, section 1; Constitution 1890, section 234).

It will be presumed that legislature, in passing Laws 1918, chapter 155, amending Laws 1912, chapter 104, section 1, complied with requirements of Constitution 1890, section 234, which provides that no bill affecting taxation in certain levee districts shall be considered until after publication.

3 STATUTES. Law levying privilege tax on billiard halls in lieu of other privilege taxes does not come within constitutional provisions for publication before legislature may consider bill affecting taxation of certain levee districts (Laws 1918, chapter 155, amending Laws 1912, chapter 104, section 1; Constitution 1890, section 234).

Laws 1918, chapter 155, amending Laws 1912, chapter 104, section 1, levying privilege tax on billiard halls in lieu of any other privilege taxes, being general laws dealing with revenues of entire state, do not come within provisions of Constitution 1890, section 234, which provides that no bill affecting taxation of certain levee districts shall be considered until after publication.

4. LICENSES. Petition for refund of privilege tax need not allege that tax was paid under protest (Laws 1926, chapter 196, amending Code 1906, section 4346 [Hemingway's Code, section 6980]).

Under Laws 1926, chapter 196, amending Code 1906, section 4346 (Hemingway's Code, section 6980), providing for refund of taxes erroneously paid, whether paid under protest or as result of coercion, being both prospective and retroactive, it was unnecessary that petition for refund of privilege tax should allege that tax was paid under protest.

HON. W. H. POTTER, Judge.

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

Mandamus by G. F. Ammon against George D. Riley, State Auditor, to compel respondent to audit and allow claim for a refund of privilege taxes alleged to have been unlawfully collected. A demurrer to the petition was overruled, judgment entered for petitioner, and respondent appeals. Affirmed.

Judgment affirmed.

J. L. Byrd, Assistant Attorney-General, for appellant.

I. The action of the court below is error because the petition shows on its face that the tax was not paid under protest as it was the duty of the plaintiff to do. See Union Land & Timber Co. v. Pearl River County, 106 So. 277.

II. Another reason, is that the act on which the appellee relies as being his authority for the refund of taxes, chapter 155, Laws of 1918, does not comply with the constitutional proviso that all laws affecting taxes or revenue of the Yazoo-Mississippi Delta Levee District must be published in certain counties of the levee district for four weeks prior to the introduction thereof. Section 234, Constitution of 1890.

Now, we are familiar with the case of Royal Ins. Co. v. Levee Commissioners, 95 Miss. 168, wherein the court held that in order to change a general privilege tax law affecting the whole state, and which incidentally affected the levee district, it was not necessary to publish the act before passage. We submit that that case is not authority here for the reason that chapter 155, Laws of 1918, changes the privilege tax law only as to the levee district in that part of it where it limits the collection of taxes to municipalities and by necessary construction cuts out the right of the levee commissioners to levy the tax.

III. Another reason why this act of 1918 is not applicable here is that it does not repeal any existing laws and the prior acts of the legislature, especially chapter 80, Laws of 1902, which specifically provides that levee commissioners for the Yazoo-Mississippi Delta be and they are thereby authorized and empowered to levy a tax upon all privileges exercised, or which may hereafter be exercised within the limits of the said levee district, and provided that the privilege tax shall in no case exceed the taxes by the state on the same privilege. In order for the 1918 Act to take away the general right of the levee commissioners to levy a privilege tax it was necessary for the 1918 Act to contain a repealing clause.

Chambers & Trenholm, for appellee.

Appellant contends that chapter 155, Laws of 1918, the act under which the tax was collected, and which, we say, expressly prohibited such collection was and is unconstitutional in that by section 234, Constitution of 1890, all laws affecting taxes or revenue of the levee district must be published in certain counties of the district four weeks prior to introduction in the legislature and that, therefore, section 1, chapter 104, Laws of 1922, amended by said chapter 155, Laws of 1918, is still in force; and this notwithstanding the decision of this court in Royal Ins. Co. v. Levee Commissioners, 95 Miss. 168, because said chapter 155, Laws of 1918, changed the privilege tax law only as to the levee district "in that part of it where it limits the collection of taxes to municipalities and by necessary construction cuts out the right of the levee commissioners to levy the tax."

Now, there are several answers to that proposition. The first is that there is nothing in the record to show that chapter 155, Laws of 1918, was not published before introduction, as required by the Constitution, if the requirement is applicable. Nor does appellant say in his brief that it was not so published, "and it will be presumed that all constitutional requirements were observed until the presumption is overcome by clear and convincing testimony." Telegraph Co. v. Revenue Agt., 116 Miss. 204, 76 So. 560.

The next answer to the contention is that chapter 155, Laws of 1918, does not change the provisions of section 1, chapter 104, Laws of 1912, with relation to the rights of the levee district in any way whatsoever. It simply adds to the class exempt from the tax "regularly organized branches of the Young Men's Christian Association."

Appellant also complains that chapter 155, Laws of 1918, does not repeal any existing law, particularly chapter 80, Laws of 1902, which act authorizes the levee commissioners to levy and collect privilege taxes. It is true that the Act of 1918 has no repealing section, but it did not need any. It simply amended section 1, chapter 104, Laws of 1912, by increasing the exempt class and there was nothing in conflict with the new provision that the legislature could have repealed except the act amended. But an examination of the Act of 1912, by which appellant says the right of the levee commissioners to collect the tax was cut out, discloses in section 7 the following words: "That all laws and parts of laws in conflict with this act are hereby repealed." There goes any right the levee district had under the act of 1902 to collect a privilege tax on billiard or pool rooms! That provision also removed section 3778, Code of 1906, which levied a privilege tax on billiard and pool tables, but which did not prohibit the levee commissioners from collecting thereon. Or, the last clause of section 1, Act of 1912, did so, in specific terms: "No privilege tax, state, county or municipal or otherwise shall be collected on any billiard or pool table operated in such place, hall or establishment."

We come now to appellant's contention that appellee is not entitled to the writ sought because the tax was not paid under protest. In support of that contention he cites Union Land & Timber Co. v. Pearl River Co., 106 So. 277.

In the first place, the tax involved in that case was an ad valorem tax, paid without protest before the collector had made request, demand, or threat, and paid voluntarily without compulsion. The court laid down the general rule that a voluntary payment cannot be recovered, but that some coercive measure or proceeding, such as seizure or threat of imprisonment by an officer armed with authority is necessary, adding, however, that the policy of this state is more liberal, permitting recovery of illegal taxes paid under protest and making payment involuntary in event of any coercive steps taken by authority having the power to seize or levy. There was neither protest nor involuntary payment in that case, hence the taxpayer could not recover under our more liberal policy.

In the instant case, however, the tax is a privilege tax, and the petition for writ of mandamus charges that 'plaintiff would show that the said tax so paid by him was not due; was unlawfully exacted and collected of and from him; was paid involuntarily by him and under duress and compulsion." The demurrer of appellant admits those allegations.

Considering the language of the petition in the instant case--that the money was exacted and collected from appellant and was paid under duress and compulsion and considering the holding of this court in City of Vicksburg v. Butler, 56...