State ex rel. Knox v. Gulf, M. & N.R. Co., 25044

CourtMississippi Supreme Court
Writing for the CourtSMITH J.
Citation138 Miss. 70,104 So. 689
PartiesSTATE ex rel. KNOX, ATT'Y GEN., v. GULF, M. & N., R. CO. [*] SAME v. STONE
Decision Date01 June 1925
Docket Number25044,25045

104 So. 689

138 Miss. 70

STATE ex rel. KNOX, ATT'Y GEN.,
v.

GULF, M. & N., R. CO.
[*]

SAME
v.
STONE

Nos. 25044, 25045

Supreme Court of Mississippi

June 1, 1925


Suggestion of Error Overruled July 7, 1925.

1. TAXATION. "Income tax" held not subject to constitutional requirement of taxing property in proportion to value and assessment under general laws according to value.

An "income tax" is an excise, and not a tax on property within the meaning of the requirement of section 112 of the state Constitution, that property shall be taxed in proportion to its value, and shall be assessed for taxes under general laws and by uniform rules according to its true value.

2. CONSTITUTIONAL LAW. Taxation. If all of same class for taxation are taxed alike, equality clauses of state and federal Constitutions are complied with.

The legislature may make a reasonable classification of the subjects of taxation, and, if all of the same class are taxed alike, the equality clauses of both the state and federal Constitutions are complied with.

3. CONSTITUTIONAL LAW. Taxation. Income tax, graduated according to amount of income, held not to violate requirement of equality of taxation; income tax, graduated according to amount of income, does not deny equal protection of laws.

A tax on income, graduated according to the amount of the income, does not violate either the equality clause of section 112 of [138 Miss. 71] the state Constitution nor the equal protection of the laws clause of the Fourteenth Amendment to the federal Constitution.

4. CONSTITUTIONAL LAW. Statutes. Taxation. Exemption from income tax, resting upon classification which legislature has power to make, held not to violate equality clause of Constitution; exemption from income tax, resting on classification which legislature has power to make, held not to deny equal protection of laws.

An exemption from income tax, which rests upon classification which the legislature has the power to make, does not violate the equality clauses of either the state or federal Constitutions.

5. CONSTITUTIONAL LAW. Taxation. Constitutional provision for redemption of property from tax sales held self-executing; statute providing for sale of property for nonpayment of taxes is not void for failure to provide for redemption of property.

Section 79 of the Constitution, which provides for the redemption of property from sales thereof for the nonpayment of taxes, is self-executing, and a statute providing for the sale of property for the nonpayment of taxes is not void because it fails to provide for the redemption of the property.

6. TAXATION. Constitutional requirement that taxes shall be assessed by assessor and collected by sheriff held not to apply to income taxes.

The requirement of section 135 of the state Constitution that taxes shall be assessed by the assessor and collected by the sheriff has no application to income taxes, but only to such as can only be fixed by an assessment of, and is primarily a charge against, property.

7. COMMERCE. Tax on net income is not burden on interstate commerce, although included therein is income derived in whole or in part from such commerce.

A tax on net income is not a burden on interstate commerce, although included therein is income derived in whole or in part from interstate commerce.

8. TAXATION. State may impose tax on net income of residents and corporations created by it, and may include therein income derived from business without state.

A state imposing a tax on net income of residents therein and corporations created by it may include therein income derived from business without the state.

[138 Miss. 72] 9. CONSTITUTIONAL LAW. Sale of land for payment of income taxes held not to deprive owner of property without due process of law.

The sale of land for the payment of income taxes, due by the owner thereof, made by the sheriff in the manner prescribed by law for sales under an execution on a judgment, does not deprive the owner of the land of property without due process of law.

10. CONSTITUTIONAL LAW. Statutes. Constitutionality of provision of statute cannot be raised by one not affected thereby; if separable from remainder of statute, invalid portions leave remainder valid.

The constitutionality of a provision of a statute cannot be raised by one not affected thereby, if it is separable from the remainder of the statute.

ANDERSON and MCGOWEN, JJ., dissenting.

HON. G. E. WILSON, Judge.

APPEAL from circuit court of Newton county, HON. G. E. WILSON, Judge.

Action by the state, on the relation of Rush H. Knox, attorney general, against the Gulf, Mobile & Northern Railroad Company. Action by the state of Mississippi, on the relation of Rush H. Knox, attorney general, against V. E. Stone. From a judgment for defendants, plaintiff appeals. Cases considered together on appeal. Reversed and remanded.

Judgment reversed.

Rush H. Knox, Attorney General, and J. W. Cassedy, E. C. Sharp and Creekmore & Creekmore, for appellant.

[138 Miss. 73] I. All presumptions and constructions are in favor of the Validity of the Act. Richards v. City Lbr. Co., 101 Miss. 678; Darnell v. Johnson, 109 Miss. 570; Johnson v. Reeves, 112 Miss. 227; State v. Wheatley, 113 Miss. 555; University v. Waugh, 105 Miss. 623; Colley's Constitutional Limitations (7 Ed.), pp. 227, 228, 232, 233, 236, 242, 252, 254, 256; Natchez R. R. Co. v. Crawford (Miss.), 55 So. 596; State v. L. & N. R. R. Co., 53 So. 454 (Miss.); State v. Henry, 87 Miss. 125; Hart v. State, 87 Miss. 171.

II. The act does not violate section 112 of the Constitution. Sec. 112, Constitution; Hattiesburg Gro. Co. v. Robertson, 126 Miss. 34, 88 So. 4, 26 R. C. L. 35 and 141 et seq.; Brushaber v. Union R. R. Co., 240 U.S. 1, 60 L.Ed. 493; Glasgow v. Rowse, 43 Mo. 479; Ludlow v. Wallbrick, 272 Mo. 339, 205 S.W. 196; Waring v. Savannah, 60 Ga. 93; Purnell v. Page, 133 N.C. 125, 45 S.W. 534; State v. Philadelphia R. R. Co., 45 Md. 361, 24 A. R. 511; 4 Cooley on Taxation (4 Ed.), sec. 1743, p. 3477; 4 Cooley on Taxation, (4 Ed.), secs. 1751 and 1752; Cooley's Constitutional Limitations (7 Ed.), 680; Thomas v. U.S. 192 U.S. 363, 48 L.Ed. 481; Judson on Taxation (2 Ed.), par. 567, p. 645, 26 R. C. L. 24; Black on Income Taxes (3 Ed.), par. 44, p. 31, 26 R. C. L. 142; Commonwealth v. Werth, 116 Va. 604, 82 S.E. 695, 1916 B Ann. Cas. 1263; Adams v. Bank, 78 Miss. 532; Code 1906, Secs. 3775, 3784, 3789, 3790, 3800, 3801, 3813, 3823, 3824, 3830, 3849, 3852, 3855, 3856, 3857, 3858, 3862, 3872, 3876, 3877, 3884, 3886, 3888, 3890; Constitution 1869, art. 12, sec. 20; Adams v. Kuykendall, 83 Miss. 571; Daily v. Swope, 47 Miss. 386; Vassar v. George, 47 Miss. 121; Mississippi Mills v. Cook, 56 Miss. 40; Bank v. Worrell, 67 Miss. 47; Adams v. Bank of Oxford, 78 Miss. 535; Winona v. Bank, 69 Miss. 663; Alexander v. Thomas, 70 Miss. 517; Enochs v. State, 133 Miss. 103; Coca Cola Co. v. Skillman, 91 Miss. 677; Ins. Agency v. Cole. 87 Miss. 646; Bank v. Worrell, 67 Miss. 47; Barataria Canning Co. v. State, 101 Miss. 890; Holberg v. Macon, 55 Miss. 112; State v. Widman, 72 So. 782; Postal Tel. Co. v. Robertson, 116 Miss. 204; 26 R. C. L., sec. 124, p. 152. [138 Miss. 74]

II-A. Section 5 of the Act does not make tax a property tax. Section 5, Income Tax Act; Section 30, Income Tax Act; Section 31, Income Tax Act; Flint v. Stone Tracy Co., 1912 B Ann. Cas. 1316; Thompson v. Kreutzer, 112 Miss. 165; Thompson v. McLeod, 112 Miss. 383; Adams v. Y. & M. V. R. R. Co., 75 Miss. 275; Norsworthy v. Roseberry, 135 Miss. 845; Lewis' Sutherland, Statutory Construction (2 Ed.), 410-411; McIntyre v. Ingraham, 35 Miss. 28; Koch v. Bridges, 45 Miss. 247; Yerger v. State, 91 Miss. 802; Wray v. Kelly (Miss), 53 So. 492; Green v. Weller, 32 Miss. 650; N. O. & N.E. R. R. Co. v. Hemphill, 35 Miss. 17.

III. The act does not violate section 135, state Constitution. Enochs v. State, 133 Miss. 143; State v. Adler, 68 Miss. 487; Thibodeaux v. State, 69 Miss. 683.

IV. Act need not state for what purpose tax is imposed. Laws 1918, p. 88; Laws 1920, p. 103; Laws 1922, p. 98; Laws 1924, p. 107.

V. The act does not conflict with the commerce clause of the Federal Constitution. U. S. Glue Co. v. Oak Creek, 62 L.Ed. 1141, 247 U.S. 321; Underwood Typewriter Co. v. Chamberlain, 65 L.Ed. 169, 254 U.S. 113; Shaffer v. Carter, 64 L.Ed. 445, 252 U.S. 36.

VI. The act is not violative of the Fourteenth Amendment to the Federal Constitution--the exemptions in the act do not invalidate it. Sec. 201, Model Income Tax Act; Laws New York, 1917, ch. 726; Laws Mass., 1921, ch. 156, sec. 2; Income Tax Act of Ore., sec. 14, sub-sec. 10; Standard Lbr. Co. v. Pierce (Ore.), 228 P. 812; Bells Gap R. R. Co. v. Pennsylvania, 33 L.Ed. 892, 134 U.S. 232; Flint v. Stone Tracy Co., supra; A. C. L. Ry. Co. v. Daughton, 67 L.Ed. 1051, 262 L.Ed. 413; Fort Smith Lbr. Co. v. Arkansas, 64 L.Ed. 396, 251 U.S. 532; Billings v. Illinois, 47 L.Ed. 403; 188 U.S. 102; Keeney v. N. Y., [138 Miss. 75] 56 L.Ed. 305, 222 U.S. 536; Mills v. Cook, 56 Miss. 40; Adams v. Tombigbee Mills, 78 Miss. 676; Harrison Co. v. G. C. M. A., 126 Miss. 729.

VII. Even if exemption of banks and others be held invalid, the act will not be struck down. Sec. 42, Income Tax Act, 1924; Adams v. Standard Oil Co., 97 Miss. 879; American Express Co. v. Beer, 107 Miss. 535; Johnson v. Long Furniture Co., 113 Miss. 377.

VIII. State may tax incomes of residents and domestic corporations derived from sources both within and without the state. Schaffer v. Carter, supra; Maguire v. Commissioner, 230 Mass. 503, 120 N.E. 162; Maguire v. Trefry, 64 L.Ed. 789, 253 U.S. 12.

IX. The right to question the constitutionality of the income tax act, or any provision thereof, must be bottomed on the defendant's own situation. Shaffer v. Carter, supra; 6 R. C. L. 89-90; N. O. M. & C. R. R. Co. v. State, 110 Miss. 305; American...

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44 practice notes
  • Southern Package Corporation v. State Tax Commission, 31888
    • United States
    • Mississippi Supreme Court
    • November 11, 1935
    ...Constitution has no application to a privilege or excise tax. Postal Tel. Co. v. Robertson, 116 Miss. 204; State v. G. M. & N. Ry. Co., 138 Miss. 70; State v. Lawrence, 108 Miss. 291; Barataria Canning Co. v. State, 101 Miss. 890; Coca Cola Co. v. Skillman, 91 Miss. 677; Clarksdale Ins. Age......
  • Parker v. State Highway Commission, 31771
    • United States
    • Mississippi Supreme Court
    • May 27, 1935
    ...16 So. 434; Union Savings Bank & Trust Co. v. City of Jackson, 122 Miss. 557, 84 So. 388; State v. Gulf, Mobile & Northern R. R. Co., 138 Miss. 70, 104 So. 689. E. R. Holmes, Jr., Assistant Attorney-General, for appellee. Section 17 of the Constitution of Mississippi of 1890 is not self-exe......
  • Fernwood Lumber Co. v. Mississippi State Tax Commission, 30655
    • United States
    • Mississippi Supreme Court
    • September 25, 1933
    ...Island Railroad Co. v. Adams, 90 Miss. 559, 45 So. 91; Gulf Refining Co. v. Cleveland Trust Co., 108 So. 158; State v. G. M. & N. R. R., 104 So. 689, 138 Miss. 70; Brushaber v. Union Pac. R. R. Co., 240 U.S. 1, 60 L.Ed. 493; Eisner v. Macomber, 252 U.S. 205, 64 L.Ed. 528; Peck v. Lowe, 247 ......
  • Hudson v. Stuart, 30434
    • United States
    • Mississippi Supreme Court
    • January 16, 1933
    ...Cole, 87 Miss. 637, 40 So. 328; Coca Cola Company v. Skillman, 91 Miss. 677; Dale v. Swope, 47 Miss. 367; State v. G. M. & N. R. R. Co., 104 So. 689. There is no restriction upon the power of the Legislature to impose a privilege tax upon motor vehicles to raise funds to be expended in the ......
  • Request a trial to view additional results
44 cases
  • Southern Package Corporation v. State Tax Commission, 31888
    • United States
    • Mississippi Supreme Court
    • November 11, 1935
    ...Constitution has no application to a privilege or excise tax. Postal Tel. Co. v. Robertson, 116 Miss. 204; State v. G. M. & N. Ry. Co., 138 Miss. 70; State v. Lawrence, 108 Miss. 291; Barataria Canning Co. v. State, 101 Miss. 890; Coca Cola Co. v. Skillman, 91 Miss. 677; Clarksdale Ins. Age......
  • Parker v. State Highway Commission, 31771
    • United States
    • Mississippi Supreme Court
    • May 27, 1935
    ...16 So. 434; Union Savings Bank & Trust Co. v. City of Jackson, 122 Miss. 557, 84 So. 388; State v. Gulf, Mobile & Northern R. R. Co., 138 Miss. 70, 104 So. 689. E. R. Holmes, Jr., Assistant Attorney-General, for appellee. Section 17 of the Constitution of Mississippi of 1890 is not self-exe......
  • Fernwood Lumber Co. v. Mississippi State Tax Commission, 30655
    • United States
    • Mississippi Supreme Court
    • September 25, 1933
    ...Island Railroad Co. v. Adams, 90 Miss. 559, 45 So. 91; Gulf Refining Co. v. Cleveland Trust Co., 108 So. 158; State v. G. M. & N. R. R., 104 So. 689, 138 Miss. 70; Brushaber v. Union Pac. R. R. Co., 240 U.S. 1, 60 L.Ed. 493; Eisner v. Macomber, 252 U.S. 205, 64 L.Ed. 528; Peck v. Lowe, 247 ......
  • Hudson v. Stuart, 30434
    • United States
    • Mississippi Supreme Court
    • January 16, 1933
    ...Cole, 87 Miss. 637, 40 So. 328; Coca Cola Company v. Skillman, 91 Miss. 677; Dale v. Swope, 47 Miss. 367; State v. G. M. & N. R. R. Co., 104 So. 689. There is no restriction upon the power of the Legislature to impose a privilege tax upon motor vehicles to raise funds to be expended in the ......
  • Request a trial to view additional results

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