State ex rel. Rice v. Evans-Terry Co

• Decision Date: 25 February 1935
• Docket Number: 31585
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. RICE, ATTY.-GEN., et al. v. EVANS-TERRY CO

159 So. 658

173 Miss. 526

STATE ex rel. RICE, ATTY.-GEN., et al. v. EVANS-TERRY CO

No. 31585

Supreme Court of Mississippi

February 25, 1935

Division B

Suggestion Of Error Overruled April 8, 1935.

APPEAL from chancery court of Jones county HON. A. B. AMIS, SR. Chancellor.

Suit by the state, on the relation of Greek L. Rice attorney-general, and Joe S. Price, state auditor of public accounts, against the Evans-Terry Company. From a decree for defendant, complainants appeal. Reversed, and judgment for complainants.

Reversed, and judgment for appellants.

W. W. Pierce, assistant attorney-general, for appellants.

The power of the state to levy and collect taxes exists independently of the Constitution of the United States, and there is no restriction on the right of the legislature to raise funds for the maintenance of roads in this state.

Union Pacific Ry. Co. v. Peniston, 85 U.S. 5, 21 L.Ed. 787; Hager v. Walker, 129 Am. St. Rep. 284; State v. Lawrence, 108 Miss. 291.

The public highways of the state are public property owned by the state and their primary and preferred purpose is for public use in the ordinary way and their use in the furtherance of a commercial business enterprise is special and extraordinary, which the legislature may prohibit on condition as it sees fit.

Packard v. Banton, 264 U.S. 104, 68 L.Ed. 596; Stephenson v. Binford, 287 U.S. 251, 77 L.Ed. 288; Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1167; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Hudson et al. v. Stuart, 166 Miss. 339.

The state in dealing with its own property and in protecting its investment in public roads devoted to a public use is not subject to the same restrictions as when dealing with property of its citizens not affected with a public use.

Packard v. Banton, 264 U.S. 104, 68 L.Ed. 596; Stephenson v. Binford, 287 U.S. 251, 77 L.Ed. 288; Riley v. Ayer & Lord Tie Co., 147 Miss. 105.

Chapter 126 of the General Laws of Mississippi 1934, amendatory to House Bill No. 3 of the Acts of the Mississippi Legislature, Extraordinary Session 1932, and chapter 135 of the General Laws of Mississippi 1932, is not unconstitutional and void because of the classifications, exemptions and partial exemptions therein contained.

The provisions of the statute exemption from the permit carrier class, motor vehicles engaged solely and exclusively in transporting school children and teachers to and from public schools, and motor vehicles engaged exclusively in the transportation of agricultural, forest and/or dairy products when such agricultural, forest and/or dairy products are owned by the producer, or where forest products are being transported not exceeding fifty miles in their raw or unmanufactured state or as lumber, and motor vehicles engaged in hauling sand, gravel, dirt, stone and/or aggregate for road building purposes only, and motor vehicles used in lieu of street cars in or between municipalities or by a hotel exclusively for its patrons and employees operating not exceeding fifteen miles from such hotel, and taxi cabs within the city limits of a municipality, or not exceeding three miles therefrom, and motor vehicles used by employees of the United States on official business, and motor vehicles used and operated exclusively by the United States, the state of Mississippi or by its subdivisions, does not render the statute unconstitutional.

Hudson et al. v. Stuart, 166 Miss. 339; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Carley & Hamilton, and Cottingham et al. v. Snook, 281 U.S. 66, 74 L.Ed. 704; State ex rel. Wisconsin Allied Truck Owners' Assn., et al. v. Public Service Commission of Wisconsin, 242 N.W. 668; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Hoover Motors Express Co., Inc., et al. v. Fort, 72 S.W.2d 1052.

The classification of motor vehicles according to carrying capacity does not violate the fourteenth amendment of the constitution of the United States, nor the corresponding section of the state constitution.

Carley & Hamilton, and Cottingham et al. v. Snook, 281 U.S. 66, 74 L.Ed. 704; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Hudson et al. v. Stuart, 166 Miss. 339.

The selection of a mileage basis in levying a privilege tax on motor vehicles is not violative of the fourteenth amendment of the constitution of the United States.

Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Columbus & Greenville Ry. Co. v. Miller, 283 U.S. 96, 75 L.Ed. 861; Chesapeake & Ohio R. R. Co. v. Conley, 230 U.S. 513, 57 L.Ed. 1597; Pullman Co. v. Adams, 78 Miss. 814, 47 L.Ed. 877; Zemurray v. Bouldin, 87 Miss. 583.

The classification of passenger vehicles separately from freight carrying vehicles and levying a tax thereon differently does not violate the state or federal constitution.

Hudson et al. v. Stuart, 166 Miss. 239; Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1183; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Hendricks v. Maryland, 253 U.S. 610, 59 L.Ed. 385; Kane v. New Jersey, 242 U.S. 160, 61 L.Ed. 222; Carley & Hamilton, and Cottingham v. Snook, 281 U.S. 66, 74 L.Ed. 704.

Chapter 126 of the General Laws of Mississippi 1934 is not unconstitutional because it imposes a privilege tax upon motor vehicles used exclusively or partially upon the streets of incorporated municipalities even though no part of the tax is returned to the municipalities.

State ex rel. Mitchell v. Jackson, 126 So. 2, 156 Miss. 306; Carley & Hamilton, and Cottingham v. Snook, 281 U.S. 66, 74 L.Ed. 704; Nashville, Chattanooga & St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 77 L.Ed. 730; Eastern Air Trans. v. South Carolina Tax Commission, 285 U.S. 147, 76 L.Ed. 673; Trinityfarm Construction Co. v. Grosjean, 291 U.S. 446, 78 L.Ed. 918.

The statute is not unconstitutional because all trucks of less than two and one-half tons carrying capacity are not required to have speedometers.

Hudson et al. v. Stuart, 166 Miss. 339; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1167; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Quong Wing v. Kuykendall, 293 U.S. 59, 56 L.Ed. 351; State Tax Commission v. Flora Drug Co., 148 So. 373; Beers et al. v. Glynn, 211 U.S. 477, 53 L.Ed. 290.

The statute as a whole is not unconstitutional because of the sliding scale of automatic reductions in the amount of tax provided for in subparagraph 8 of section 2 thereof.

Hudson et al. v. Stuart, 166 Miss. 339; State ex rel. Knox v. Gulf, Mobile & Northern R. R. Co., 138 Miss. 70; Stingley v. Jackson, 140 Miss. 19.

There is a presumption in favor of the constitutionality of the statute and the burden of showing some factual basis to overthrow this presumption rests upon appellee.

O'Gorman & Young v. Hartford, 282 U.S. 251, 75 L.Ed. 328.

The court here must assume that the legislature paid due heed to all economic considerations in making classifications of motor vehicles for the purpose of imposing a privilege tax.

Portland Van & Storage Co. v. Hoss, 81 A.L.R. 1136.

S. B. Thomas, of Greenville, for appellee.

Chapter 126 of the General Laws of Mississippi of 1934, amendatory of House Bill No. 3 of the Acts of the Mississippi Legislature, Extraordinary Session of 1932, and chapter 135 of the General Laws of Mississippi of 1932 is unconstitutional and void because of the classifications, exemptions and partial exemptions therein contained.

The exemptions granted under the statute render the act unconstitutional and void and deny to the appellee the equal protection of the law as guaranteed under the fourteenth amendment of the constitution of the United States and article 14 of the bill of rights of the constitution of the state of Mississippi.

Smith v. Cahoon, 283 U.S. 553, 75 L.Ed. 1264, 51 S.Ct. 582.

Hannah & Simrall, of Hattiesburg, for appellee.

The legislature in dealing with trucks of two and one-half tons carrying capacity, expressly and deliberately pursued a different course to what it pursued with reference to the trucks of less than two and one-half tons carrying capacity by expressly requiring the said trucks of two and one-half tons and up to be provided with a speedometer and to keep and make daily and monthly reports and pay the said mileage tax.

If this act is to be given the construction contended for by the appellant in this case, we find these tax gatherers saying to the operator of the two and one-half ton truck that you must lay down your mileage tax for every mile that you travel either on the public highways of the state, or the streets of a municipality, and saying to the taxicab operator who operates within the municipality or within a radius of three miles thereof, and to the busses that are used in lieu of street cars, either in municipalities, or between municipalities, and to the hotels who operate busses for their patrons and employees not exceeding fifteen miles distant from the hotel, that we are excusing you from any such mileage tax.

The classification is arbitrary, fanciful and wholly lacking in reasonable foundation.

The tax is unreasonable in amount.

The Fourteenth Amendment to the Constitution of the United States, and Article Fourteen of the Constitution of the state of Mississippi, and the decisions of the courts of last resort of the United States and of the state of Mississippi, positively forbid the legislature to make discriminatory classifications. That is to say, classifications that are not based on some substantial difference or reason.

Lowry, Insurance Commissioner, v. City of Clarksdale, 122 So. 195, 197, 154 Miss. 155; Smith v. Cahoon, 75 L.Ed. 1264; Adams, State Revenue Agent, v. Standard Oil Co., 97 Miss. 879, 53 So. 692.

The amount of the charges and the method...