State v. Taylor

• Decision Date: 08 June 1891
• Citation: 68 Miss. 730,9 So. 894
• Court: Mississippi Supreme Court
• Parties: STATE EX REL., ETC., v. TOLIVER TAYLOR

9 So. 894

68 Miss. 730

STATE EX REL., ETC., v. TOLIVER TAYLOR

Supreme Court of Mississippi

June 8, 1891

FROM the circuit court of Adams county, Hon. W. P. CASSEDY, Judge.

This action was brought May 4, 1891, by Wirt Adams, state revenue agent, to recover of the appellee, Taylor, the amount of unpaid privilege taxes for 1889 and 1890, which it is alleged he ought to have paid as a retailer of intoxicating liquors. The first count alleges merely that the defendant was a merchant, and in 1890, in connection with his business, did sell vinous and spirituous liquors in less quantities than one gallon, without having paid the second count alleges a similar default for 1889; and further, that the sheriff of Adams county, for and in behalf of the state, in May 1, 1891 had assessed against the defendant the sum of $ 300 as a license-tax for doing said business in 1889, and had notified him thereof, whereby, etc.

The defendant demurred to the declaration upon the ground that the demand was not such a debt as the law authorized the state revenue agent to sue for and collect, and because there had been no legal assessment.

Affirmed.

J. M Gibson and Calhoon & Green, for appellant.

In State v. Piazza, 66 Miss. 426, and State v. Adler ante, p. 487, there was no allegation that the board of supervisors and the sheriff had assessed the tax. Under the latter case, and under chap. 8 of the revenue act of 1890, we submit the demurrer should be overruled. The act of 1890 being prospective conferred the remedy by suit for the tax of 1890, and the tax of 1889 was collectible because of the assessment which made it a debt due the state.

Frank K. Winchester and A. H. Geisenberger, for appellee.

Unless there has been a valid assessment there can be no tax due and hence no suit maintainable under the act of 1890 by the revenue agent. State v. Adler, ante, p. 487. The attempted assessment by the sheriff two years after the time the license was due conferred no right on the revenue agent to sue, since the sheriff had no right to make the assessment of an unpaid privilege tax.

Neither the revenue act of 1890, nor § 513, code 1880, which authorizes the sheriff to assess lands and other property left unassessed by the assessors, authorized him to assess privilege taxes which had escaped collection in former years. Even if the tax was assessed properly, no suit will lie for its collection. State v. Piazza, 66 Miss. 426;...