Smith v. Willis

• Decision Date: 26 November 1900
• Citation: 28 So. 878,78 Miss. 243
• Court: Mississippi Supreme Court
• Parties: RUFUS M. SMITH, TAX COLLECTOR, ETC., v. ELIZABETH B. WILLIS

28 So. 878

78 Miss. 243

RUFUS M. SMITH, TAX COLLECTOR, ETC., v. ELIZABETH B. WILLIS

Supreme Court of Mississippi

November 26, 1900

October 1900

FROM the circuit court of Issaquena county HON. WILLIAM K McLAURIN, Judge.

Mrs Willis, the appellee, was the plaintiff' in the court below; Smith, the appellant, was defendant there. From a judgment in plaintiff's favor, the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Walter Sillers, for appellant.

It cannot be said the law is unconstitutional, because the constitution establishes the district, and imposes the tax.

Section 227 of the constitution provides that "a levee system shall be maintained in the state, as provided in this article."

Section 228 recognizes the district as it then existed, anti provides, "And said districts shall so remain until changed by law." The district has never been changed by law.

Section 234 provides that the boundaries of said district shall not be changed except by an act of the legislature.

Section 236 provides that "the legislature shall impose, for levee purposes, in addition to the levee taxes heretofore levied, or authorized by law, a uniform tax of not less than two nor more than five cents per acre per annum, upon each and every acre of land now or hereafter embraced within the limits of either or both of said levee districts." The tax required to be levied by this section of the constitution is the tax sought to be recovered by appellee.

This suit is virtually an appeal to the courts to relieve the lands upon which the tax is levied, and lands similarly situated, from levee taxes.

We submit that the appeal should he made to the legislature, and not to the courts. The power is vested in the legislature to change the limits of the district, and thus relieve the territory from taxation, but the levee board has no power to relinquish this territory or relieve it from the taxation required by the constitution to be imposed. Neither have the courts.

Dabney & McCabe, for the appellee.

Instead of the land in question being benefited by the levee which terminates north of it, it is absolutely damaged thereby. No matter what the letter of the law is, the intent is to be ascertained from the evils to be cured, the benefits to be derived, and the objects to be attained by the legislation and the law should be construed with reference to these considerations. From the first act on this subject, in 1858, down to the present time, including the acts of 1865, 1867, and numerous amendments and acts since that time, the perfectly recognized and manifest purpose has been to protect alluvial lands from overflow, caused by high water in the Mississippi river. Not only is this known, from a general knowledge of the subject, to be the case, but the acts themselves declare it repeatedly. Shall the law be enforced according to its letter, although this is contrary to the whole spirit, purpose, and intent of the law?

Within legal contemplation, it seems to us that the lands of appellee will be held by the court to lie between the levee and the river. Certainly they are not behind the levee, therefore it is as true to say that they are between the levee and the river--that is, outside of the levee--as within the levee district.

By sec 238 of the constitution there is excepted out of the lands subject to levee taxes those lands lying between the levee and the river, manifestly because they are not protected by the levee. It was assumed by the legislature that all of the lands in the levee district were protected by this levee, but such is not the fact. Therefore we say that the tax ought not to be imposed on lands which not only get no benefit from the levee, but are damaged by it. The same reason which would exempt the lands lying between the levee and the river from taxation, would apply to a...