Evans v. State

105 So. 501 | Miss. | 1925

^* Headnotes 1. Highways, 29 C.J., section 520 (Anno); 2. Highways, 29 C.J., Section 520 (Anno). The appellant, Matt Evans, was convicted in the circuit court of the First Judicial District of Jasper county on a charge of failing to perform the labor required by law on the public roads for the year 1923, or to pay the commutation tax required by law. The prosecution originated in a justice of the peace court on an affidavit made by the county tax collector. Upon the conviction in the circuit court a fine of five dollars was imposed, from which judgment this appeal was prosecuted.

It appears from the record that this prosecution is under chapter 276, Laws of 1920, which provides (section 2) among other things, for a commutation tax of five dollars and (section 3) that any person, in lieu of this commutation tax, shall have the right to perform eight days of work under the road commissioner, provided it shall be done before the first day of December following the levy of the same; and further that any person who fails to perform the required amount of work or to pay said commutation tax shall be guilty of a misdemeanor and, on conviction, fined not less than five dollars or more than twenty-five dollars, and that the tax collector shall begin prosecutions before the proper justice of the peace as soon after the 1st day of December as possible against all persons who have failed to perform the labor or pay the tax.

Section 6 of the said chapter 276, Laws of 1920, provides that the provisions of the act shall not apply to any county or supervisors' district except those operating under chapter 150, Laws of 1910, and amendments, until the board of supervisors shall place an order on its minutes placing the county or district under said act.

There is nothing in this record to show that the supervisors' district in which this prosecution originated ever operated under chapter 150, Laws of 1910, and the record does not contain any resolution or order of the board of supervisors placing said district under the provisions of the Act of 1920. In order to maintain this prosecution under the provisions of this act, it is necessary that it shall affirmatively appear that the district had been placed under the provisions of the act.

Counsel for the state suggests that sections 4416 and 4417, Code of 1906 (sections 7096 and 7097, Hemingway's Code) which levies a commutation tax of five dollars on all persons between certain ages, is applicable, and that the conviction can be sustained under these sections. These sections provide for the working of public roads under the overseer system, and under this system the overseer is required to make a list, under oath, of all delinquent road hands and file the same with a justice of the peace of the district, and in Bishop v. State, 97 Miss. 498, 52 So. 690, it was held that a justice of the peace was without jurisdiction to try a person whose name was not contained in an overseer's report, as such report is the charge against delinquent road hands, and no other affidavit is necessary. No such list was filed in this case, and it is manifest that these sections are not applicable.

The peremptory instruction requested by the defendant in the court below should have been granted, and therefore the judgment will be reversed, and the appellant discharged.

Reversed, and appellant discharged.