State v. Widman

• Decision Date: 30 October 1916
• Docket Number: 18923
• Citation: 72 So. 782,112 Miss. 1
• Court: Mississippi Supreme Court
• Parties: STATE v. WIDMAN

72 So. 782

112 Miss. 1

STATE v. WIDMAN

No. 18923

Supreme Court of Mississippi

October 30, 1916

APPEAL from the circuit court of Pike county, HON. J. B. HOLDEN Judge.

Will Widman was charged by affidavit before a justice of the peace with failing to pay a dog tax. Demurrer to affidavit sustained, affidavit quashed and state appeals.

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

Reversed.

Ross Collins, Attorney-General, for the state.

Price &amp Price and F. D. Hewitt, for appellee.

OPINION

POTTER, J.

This is an appeal under the provisions of section 40 of the Code of 1906, providing, among other things specified therein, that the state or any municipal corporation may prosecute an appeal from a judgment sustaining a demurrer to, or a motion to quash, an indictment or an affidavit charging crime.

Will Widman was charged by an affidavit in the justice of the peace court in Pike county with failing and refusing to pay a tax on a dog levied under the provisions of chapter 148 of the Laws of 1910 put into operation in said county by an order of the board of supervisors on the 5th day of February, 1914.

Chapter 148 of the Laws of Mississippi of 1910 provides for a per capita tax of one dollar upon each and every male dog over six months old, and the sum of three dollars upon every female dog over six months old, to be collected from the owner, keeper, or harborer of any such dog. This act leaves it optional with each county whether or not its provisions shall be put in operation therein, and provides two methods whereby the counties may elect to put said law into operation: First, the board of supervisors may of its own motion levy the tax in question; second, on the failure of the board to levy the tax in question on petition in writing of twenty per cent. of the qualified electors the board of supervisors must submit to the qualified electors of the county at an election the question of this levy, and upon a vote of a majority of those voting at such election the board of supervisors is required to enter an order levying the tax in question.

"When any county shall have once levied said tax the board of supervisors shall levy said tax each succeeding year until the same shall be voted down by the majority of the electors at an election to be held for that purpose upon petition for the same in the same way and manner as provided herein for initiating the same."

The above-mentioned law was put in force in Pike county by order of the board of supervisors on the 5th day of February, 1914 and remained the law in Pike county until the 3d day of April, 1915, when an election was held as provided in said statute, and the same was suspended from operation in said county by a vote of the people.

The following affidavit in a justice of the peace court in Pike county was made against the appellee Will Widman:

"State of Mississippi, Pike county. Before me, the undersigned officer for and in said county and state aforesaid, Thomas Mitchell, on information makes affidavit that on the 1st day of February, 1914, in the county and state aforesaid, in district No. 2 thereof, one Will Widman was the owner of and had control over one male dog, which dog was then and there subject to taxation, and was, by the proper authorities, duly assessed for the taxes for the fiscal year of 1914, which tax amounted to the sum of one dollar, and that said assessment was made under and by virtue of chapter 148 of the Laws of Mississippi of 1910, and also under and by virtue of an order duly passed by the board of supervisors of Pike county, Mississippi, on the 5th day of February, 1914, which order of the board of supervisors made it the duty of the tax assessor to assess each and every owner of dogs with one dollar taxes on male dogs, and three dollar taxes on female dogs.

"That the said Will Widman was assessed as being the owner of one male dog, and, notwithstanding these facts, the said Will Widman willfully failed and knowingly refused to pay said taxes on said dog, as he was required to do by chapter 148 of the Laws of Mississippi of 1910, and the order of the board of supervisors, as promulgated by said board on date aforesaid, and in so doing, the said Will Widman violated chapter 148 of the Laws of 1910, and the order of the board of supervisors of Pike county, Mississippi, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi."

A demurrer was filed to this affidavit by the defendant, setting out the following grounds of demurrer:

"First. Because chapter 148 of the Laws of 1910 of the state of Mississippi is unconstitutional, in that it is in violation of section 112 of the Constitution of the state of Mississippi, and also violates section 30 of the Constitution...