State v. Lawrence

• Decision Date: 07 December 1914
• Docket Number: 17755
• Court: Mississippi Supreme Court
• Parties: STATE v. LAWRENCE

66 So. 745

108 Miss. 291

STATE v. LAWRENCE

No. 17755

Supreme Court of Mississippi

December 7, 1914

October, 1914

APPEAL from the circuit court of Hinds county. HON. JAS. A. TEAT Judge.

H. C Lawrence was charged with failure to pay the privilege tax imposed on motor vehicles. From a verdict discharging the defendant, the state appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Geo. H. Ethridge, attorney-general, for appellant.

I have been informed that the court's reason for ruling chapter 120 void is that it violates section 112 of the state Constitution, it being claimed that section 2 discriminates the class of vehicles and that the tax levied is not altogether uniform under the requirements of the state Constitution.

I think it is well settled in this state that the section mentioned in the Constitution does not apply to privilege tax. This proposition I think was definitely settled in the case of the Clarksdale Insurance Agency v. Cole, in 40 So. 228, 87 Miss. 637. Judge TRULY delivering the opinion of the court in that case stated: "It is settled in this state that the equality and uniformity clause of the Constitution only applies to ad valorem taxes for general purposes (see Daily v. Swope, 47 Miss. 367). It is also settled that it is competent for the legislature to tax any occupation or calling according to its discretion, and if all of the same class are taxed alike the Constitutional mandate is complied with. See Bank v. Worrell, 67 Miss. 47; Holberg v. Macon, 55 Miss. 112.

In the Coca Cola Company v. Skillman, 44 So. 985, 91 Miss. 677, the court spoke through Judge MAYES. The question was whether the privilege tax imposed upon certain drinks, to wit, Coca Cola and similar proprietary drinks was constitutional. He said, "We do not think that any provision of the Constitution of the state or the United States, is violated by the imposition of the privilege tax upon the class of articles mentioned in section 3780 of the Code. The articles mentioned, in this section are proper subjects of classification--the right of the legislature to select certain species of property, or following the occupation classified, a certain privilege tax, is too well established in the law to be successfully controverted." See 2 Cooley on Taxation, page 1094; Bank v. Worrell, 67 Miss. 47, 7 So. 219; Cooley on Constitutional Limitations, 678; Bartaria Canning Co. v. State, 58 So. 769; State v. Applegarth, page 771, 81 Md. 296, 31 A. 961, 28 L. R. A. 812; Jones v. Belzoni Drainage District, 59 So. 921.

A careful examination of section 2 will show that the owner of an automobile is not taxed unless he uses the highway, and it is also certain when the act is examined that the law applies and operates equally upon all persons standing in the same class, and taxing only varies with the power and the size of the motor used. An automobile operated as they are usually, may be dangerous to other travel on account of the great weight and the speed used by this vehicle of locomotion. Most of them weigh several thousand pounds and are operated at a great rate of speed and would inflict great injury upon any other vehicle coming in contact with it. Also the great weight causes a greater wear and tear on the highway and will inflict greater damages to the highway and bridges and culverts on the highway than lighter vehicles used by other people. There is no discrimination between individuals. Any individual who travels the highway with an auto is required to pay a privilege tax. He stands on a precise footing of equality with every other individual who uses the highway for a like motive and for a like period of time, etc.

In the case of Commonwealth v. Hawkins, 14 Pa. District Reports, 593, it is held that in a similar manner to section 2 a tax may be levied upon automobiles according to the size and horse power of the motors. This would apply to any other vehicle, other than an auto and does not violate any part of the Constitution. See, also, Mobile v. Gentry, 54 So. 488; Christy v. Elliott, 216 Ill. 31; 1 L. R. A. New Series 215, and note the masterly way in which it is shown that the measures of taxation and regulation are valid. See, also, People v. Schenider (Mich.), 12 Detroit Legal News 32; 69 L. R. A. 345; 103 N.W. 172; Commonwealth v. Boyd, 188 Mass. 79, 74 N.E. 255.

James R. McDowell, for appellee.

To summarize, my contention is that the act is void, because in truth and if it is a revenue measure and therefore a tax, and that in effect it is a tax on the ownership of property, as will be seen by section 15, it punishes by fine or imprisonment any owner who fails to pay this tax, regardless of whether he operates his automobile on the public roads.

It is void as class legislation, since it attempts to place automobiles in a class by themselves and assesses against them a tax not assessed against other vehicles using the roads as much or more, and which damage the roads as much or more than automobiles, and which are not sought to be assessed with any taxes whatever.

It is void because it is taking the property of a citizen without due process of law; hence, it is an attempt in an indirect way to collect a tax on automobiles which it could not do directly as a police measure or as a tax on property. It is void because it discriminates against a resident of this state. It will be seen that nonresidents may use the roads for two months without payment of this fee. It is void because it is an attempt to levy a privilege tax upon the ownership of property, or upon its use by its owners who have a right to use it in any lawful manner, and not upon any vocation, occupation or calling. It is therefore void if it is a tax, because it is not uniform and equal and according to value, and any attempt to exact it is in violation of both the state and Federal Constitutions. It is void if it is a privilege tax, because it is not levied upon an occupation, but upon a legitimate use by the owner of his property. It is void if it is a road tax, because the public roads are open to all who use them in a legitimate way; and the legislature cannot require the owners of one class of property to maintain them, and discriminate against them in favor of the owners of other classes of property.

The attorney-general treats this tax as if it was levied under the police power of the state; if this is true, then only that part of the tax collected as a registration fee can be upheld, for the reason that the police power extends only to the registration and regulation by prescribed rules of the use of the automobiles on the public highways. Any effort to collect more than a reasonable amount for such registration and regulation has already been condemned by this court in the Lawrence case in 61 So. 975.

I take it therefore, that in order to save it from this condemnation the legislature provided that the overplus sought to be exacted should be applied to road purposes. It is perfectly clear that it could not have been applied to any other purpose; and that it is now for the court to decide whether this application after collected will save it from condemnation.

OPINION

REED, J.

Appellee, the owner of an automobile, was charged with failure to pay the privilege tax required by section 2, chapter 120, Laws of 1914. The purpose of the act (chapter 120) is, quoting from the title, "to levy a privilege tax on motor vehicles and motor cycles for using the public roads and to provide for the registration of motor vehicles and motor cycles." Section 2, which imposes the annual privilege tax on motor vehicles and motor cycles, begins with the following: "There is hereby levied the following annual privilege tax for the privilege of using the public roads." Then follows in detail what the tax is on the different motor vehicles and motor cycles. The case was heard before the judge, jury being waived, on an agreed statement of facts. We quote therefrom as follows:

"It is agreed that he violated said section of said act, but his contention is that said law is unconstitutional and void; and it is agreed that the only question for determination by the court is the constitutionality and validity of said law. It is also agreed that the defendant has paid all ad valorem taxes on said automobile due the state, county, and city, and that he has paid the privilege license required by law on an automobile kept for hire, and an additional privilege license for operating a public garage."

The trial judge held section 2 of chapter 120 unconstitutional and void, and discharged appellee.

The state's right to require registration of a motor vehicle and motor cycles, as provided in chapter 120, is conceded by counsel for appellee. It is contended that the state has no right to exact of appellee the payment of an additional tax in the way of privilege for the use of the public roads. It is provided in the act that the privilege tax shall be collected by the tax collector of the county, and shall be paid into the treasury and credited to the road and bridge privilege tax fund, and shall be used by the supervisors in improving, repairing, maintaining, extending or constructing the roads and bridges of the county. This law does not impose a tax on motor vehicles and motor cycles as property, nor is it a tax on the person for the ownership of the vehicle. It is a tax on the privilege of using the vehicle upon the public roads. It is in the nature of a toll for the use of the highway. Not the vehicle, but the privilege of using the vehicle, is...