Streckfus Steamers, Inc. v. Kiersky

Decision Date04 November 1935
Docket Number31761
Citation174 Miss. 125,163 So. 830
CourtMississippi Supreme Court
PartiesSTRECKFUS STEAMERS, INC., v. KIERSKY, ASSESSOR

Division A

Suggestion Of Error Overruled January 6, 1936.

APPEAL from the circuit court of Washington county HON. S. F. DAVIS Judge.

Suit by Abe Kiersky, Assessor and Tax Collector of the City of Vicksburg, against the Streckfus Steamers, Inc. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

Ben Wilkes, of Vicksburg, and Leo J. Sandman, of Louisville, Ky., for appellant.

The court erred in sustaining the exceptions to the petition to remove this cause to the federal court and in refusing to permit the same to be removed.

Ohio v. Swift, 270 F. 141; Lee v. Continental, 292 F. 408; Brady v. J. B. McCrary Co., 244 F. 602; Kingston v. American Car & Foundry Co., 285 U.S. 560; 271 U.S. 99; 102 U.S. 135; 196 U.S. 239; 106 U.S. 118; 140 U.S. 137; 213 U.S. 207; Sec. 29, U.S. Judicial Code; 4 Hughes Fed. Practice, page 7, sec. 2271, page 20, sec. 2274, and page 61, sec. 2302; Byson v. McPherson, 71 Iowa 437, 32 N.W. 418; Louisiana St. Bank v. Morgan, 4 Mart. 433; 7 La. 390; 14 La. 515; 6 Rob. (La.) 33; 2 Alb. Law J. (N.Y.) 157.

The court erred in sustaining the demurrer to the appellant's plea in abatement.

The court erred in overruling the appellant's objection to the introduction in evidence of the two ordinances made exhibits to the appellee's declaration, and the minutes of the city council in regard thereto.

Our objection to the introduction of the two ordinances in question is based largely upon the grounds set forth in our notice given under the plea of general issue, it being our contention that the said ordinances are absolutely void and particularly void as to this company; the basis for this contention being that these boats are duly licensed and enrolled to operate passenger excursion boats upon the navigable streams of the United States, and particularly the Mississippi River, copies of which said licenses, enrollments and certificates of inspection are filed as exhibits to the notice given under the plea of the general issue.

Streckfus Steamers v. Mayor and Board, etc., 167 Miss. 856; Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282; Rodd v. Heartt, 21 Wall. 538; Brown v. Maryland, 12 Wheat. 445; Gibbons v. Ogden, 9 Wheat. 1; N. Y. v. Miln, 11 Pet. 134; People v. Brooks, 4 Den. 476; Steamboat Co. v. Livingston, 3 Cow. 743; John Hopkins Univ. Studies, Series 40, No. 3; Cov. & Cin. Bridge Co. v. Commonwealth, 154 U.S. 204; Pitts v. Vicksburg, 78 Miss. 181; Henderson v. Wickham & Comr. of Immigration, 92 U.S. 259; Passenger cases, 7 How. 463; London Guaranty & Acc. Co. v. Industrial Acc. Com., 279 U.S. 109; U. S. v. N. Y. Cen. R. R. Co., 272 U.S. 457; Wabash & St. L. & P. R. R. v. Ill., 118 U.S. 557; Hays v. So. Pac. S. S. Co., 17 How. 596; Pickard v. Pullman So. Car Co., 117 U.S. 34; Morgan v. Parham, 16 Wall. 471; Handley v. Kansas, 187 U.S. 617; Mo. Pac. v. Stroud, 267 U.S. 683; Cox v. Lott, 79 U.S. 204; Moran v. New Orleans, 112 U.S. 69; Helson v. Commonwealth, 279 U.S. 245; Harmon v. Chicago, 147 U.S. 396; Sinnott v. Davenport, 22 How. 227; Port Richmond Ferry v. Hudson County, 234 U.S. 317; McNeeley v. Mayor of City of Vidalia, 274 U.S. 676; The Belfast, 7 Wall. 624; Perry v. Haynes, 191 U.S. 17; 1 Benedict on Admiralty (5 Ed.), sec. 53, page 74; 2 Hughes Fed. Prac. sec. 1284; The Thomas Barlun, 55 S.Ct. 31; Gloucester Ferry Co. v. Pa., 114 U.S. 196; Parkersburg v. City of Parkersburg, 107 U.S. 691; Cannon v. City of New Orleans, 20 Wall. 577; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149; So. Pac. v. Jenson, 244 U.S. 205; 19 R. C. L. 892; 43 C. J. 537 and 827; 28 Cyc. 355; Heins v. Lincoln, 102 Iowa 690; Miss. Code of 1930, sec. 2642-3; Chicago, etc. v. R. R. Co., 109 Iowa 425; New Iberia v. Moss Hotel Co., 36 So. 552; Whitney v. Pt. Huron, 88 Mich. 268; State v. Butler, 178 Mo. 272; Padabano v. Fagan, 66 J. J. L. 167; Cooley Const. Lim. 198.

Navigation is commerce and the business of navigation is commerce as used in the Constitution according to the interpretations of the Supreme Court. Thus our boats being engaged in the business of navigation are protected and exempted from the payment of a license tax, and thus we contend that not only by reason of the movement of our boats, but also the business our boats are engaged in involves commerce.

While the Supreme Court has held in some instances that ferry boats may be required to pay a franchise tax, it has not countenanced the requirement of the payment of a license fee.

Vollor & Teller and R. M. Kelly, of Vicksburg, and Edw. J. Bogen, of Greenville, for appellee.

The cause was not removable to Federal Court.

U. S. C. A., sec. 41 (1), Title 28 (Judicial Code, sec. 24, amended); 1 R. C. L., page 408, sec. 7.

The state court has the right and is under a duty to decide for itself, purely as a question of law, whether or not upon its face the petition, considered in connection with the rest of the record, presents a removable case and thereby has terminated the jurisdiction of such court.

54 C. J. 331-333; 23 R. C. L. 774; Hercules Powder Co. v. Nix, 109 So. 862, 144 Miss. 113; State v. Louisville & Nashville R. Co., 104 Miss. 413, 61 So. 425; St. Louis & S. F. Ry. Co. v. Kirk, 101 So. 377, 136 Miss. 608; Y. & M. V. Ry. Co. v. Adams, 81 Miss. 90, 32 So. 937; Phoenix Ins. Co. v. Summerfield, 13 So. 253, 70 Miss. 827; S. H. Kress & Co. v. Crosby, 98 So. 437, 44 S.Ct. 460, 265 U.S. 598, 68 L.Ed. 1199; Tennessee v. Union & Planters' Bank, 152 U.S. 454, 38 L.Ed. 511, 14 S.Ct. 654; Mexican Nat. R. Co. v. Davidson, 157 U.S. 201, 39 L.Ed. 672, 15 S.Ct. 563; Metcalf v. Watertown, 128 U.S. 586, 32 L.Ed. 543, 9 S.Ct. 173; Minnesota v. Northern Securities Co., 194 U.S. 48, 48 L.Ed. 870, 24 S.Ct. 598.

A claim for state and county taxes levied upon the property under the revenue law of the state is not a maritime lien nor cognizable in admiralty.

1 C. J., 1285.

That the appellee was availing of a common-law remedy is apparent; and that the courts have so declared is not a matter of meritorious dispute.

Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 30 L.Ed. 447.

The demurrer to abatement plea was properly sustained.

Carbolineum Wood-Preserving & Mfg. Co. v. Meyer, 25 So. 298, 76 Miss. 586; Griffin v. Levee Comrs., 71 Miss. 770, 15 So. 107; State v. Large, 164 Miss. 318, 145 So. 347; Foote v. Myers, 60 Miss. 307; 1 C. J. 61, 87 and 88.

It is axiomatic and elementary that this honorable court, being a court of appellate jurisdiction, considers only those questions and matters which are legally presented and embodied in the transcript of the record before the court. In rendering any adjudication, this honorable court, so we have observed from numerous decisions, has confined itself strictly to the record before it.

Hemphill v. Smith, 128 Miss. 586, 91 So. 337, 24 A.L.R. 1456; Ins. Co. v. Nero, 108 Miss. 329, 66 So. 780.

Having this in mind, we call the attention of this honorable court to the former litigation between the parties hereto, as is now officially reported 150 So. 215, 167 Miss. 856.

A judgment rendered by a court having jurisdiction of the parties and subject-matter, whether correct or not, is conclusive and indisputable evidence as to all rights, questions, or facts put in issue in the suit and actually adjudicated therein, when the same come again into controversy between the same parties or their privies in proceedings upon the same or a different cause of action.

34 C. J. 902.

That the doctrine of res judicata is applicable to tax proceedings as to matters actually litigated and determined in the former proceeding is also well settled.

34 C. J. 749 and 966; 15. R. C. L. 973, 976; Cotton v. Walker, 144 So. 45, 164 Miss. 208; Love v. Mayor & Board of Aldermen of Yazoo City, 138 So. 600, 162 Miss. 65; Darrow v. Moore, 142 So. 453, 163 Miss. 705; Town of Beloit v. Morgan, 7 Wall. 619, 19 L.Ed. 205; Grubb v. Public Utilities Commission of Ohio, 281 U.S. 470, 74 L.Ed. 972; Tate v. Western Maryland R. R. Co., 289 U.S. 620, 77 L.Ed. 1405; Fidelity National Bank & Trust Co. of Kansas v. Swope, 274 U.S. 123, 71 L.Ed. 959.

Appellant is bound by stipulations that "test case" would govern.

66 A.L.R. 130; 7 A.L.R. 1433; 2 McQuillan on Municipal Corporations, 867; 3 McQuillan on Municipal Corporations, 651; Hogue v. Armstrong, 132 So. 446, 159 Miss. 875; Fair Tire Co. v. Warrell, 112 So. 24, 147 Miss. 412; 21 C. J. 1202 and 1227; Williams v. First Nat. Bank, 216 U.S. 582; Darrill v. Dodds, 78 Miss. 912; Long v. Shackleford, 25 Miss. 559.

No question arising from the coasting license is here involved.

Title 46, U.S.C. A., secs. 251, 252 and 253; Conway v. Taylor, 1 Black 603, 17 L.Ed. 202, 66 U.S. 635.

The ordinance was legally passed and in force.

Corinth v. Sharp, 107 Miss. 696, 65 So. 888.

OPINION

Cook, J.

On the 31st day of December, 1930, the mayor and aldermen of the city of Vicksburg passed an ordinance creating and levying certain privilege license taxes on specific businesses, trades, callings, and professions carried on in the city for the year 1931 and subsequently years, which included a tax of two hundred dollars for each day, or part thereof, upon each excursion boat taking passengers from the said city and returning thereto; and on January 16, 1933, an ordinance in all respects identical with the aforesaid ordinance, insofar as it affected the liability of appellant for privilege license taxes, was enacted and declared to be in force and effect on and after January 1, 1933.

During the year 1931, the appellant was operating steamers on the Mississippi river, which were engaged in the business of carrying on pleasure excursions from the various...

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