Thompson v. Krutzer

• Decision Date: 13 January 1913
• Docket Number: 16,136
• Citation: 60 So. 334,103 Miss. 388
• Court: Mississippi Supreme Court
• Parties: THOMPSON, STATE AUDITOR, ET AL., v. KRUTZER

60 So. 334

103 Miss. 388

THOMPSON, STATE AUDITOR, ET AL., v. KRUTZER

No. 16,136

Supreme Court of Mississippi

January 13, 1913

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL chancellor.

Suit by A. L. Kreutzer and others against D. L. Thompson, state auditor and others, treasurer of the state, to enjoin the collection of a privilege tax. From a decree overruling a demurrer to the bill, defendants appeal.

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

Reversed and bill dismissed.

Ross Collins, Attorney-general, and Frank Johnson, assistant attorney-general, for state.

Green &amp Green, attorneys, for appellees.

No brief of counsel on either side found in the record.

Argued orally by Ross A. Collins, attorney-general, and Frank Johnston, assistant attorney-general, for appellants and Marcellus Green, for appellees.

OPINION

SMITH, C. J.

Appellees seek to enjoin the collection of a privilege tax imposed by chapter 112 of the Laws of 1912. The chancellor having overruled a demurrer to the bill, the case comes to us on an appeal to settle the principles thereof. The statute is alleged to be void and otherwise unenforceable for a number of reasons not necessary to be set out in detail. One of the questions presented to us for determination, and which, if decided in favor of appellant, will render it improper for us to express an opinion upon the other matters involved, is whether or not the court below had jurisdiction to try the cause. Since the injunction sought is for the purpose only of staying the collection of an alleged illegal tax, the jurisdiction of the court below is measured by section 533 of the Code of 1906, which is as follows: "The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law." It will be observed that this section confers upon the court power to restrain the collection of taxes in two instances only: First, when they have been levied without authority of law; and, second, when they are attempted to be collected without authority of law.

The word "levy" "is a term frequently used in more than one sense; its meaning in a particular instance being determined by a resort to the context, and bearing different significations according to its object." 25 Cyc. 206. With reference to taxation, "it is used indiscriminately to denote the legislative function of charging the collective body of taxpayers with the sums to be raised, and the ministerial function of extending the taxes against the individual taxpayers." 27 Am. & Eng. Ency. Law (2 Ed.), 729. In Moore v. Foote, 32 Miss. 469, it was held that "the term 'levy,' when applied to the action of the board of police in relation to the county taxes, imports not only the ascertainment of the amount necessary to be raised for the county taxes, but also the performance of all such acts by the board of police, as would authorize the tax collector to proceed to collect them."

In the statute now under consideration, the word "levied" also imports that...