Riley v. Ammon, 108 So. 296

Riley v. Ammon

108 So. 296 | Miss. | 1926

^* Corpus Juris-Cyc References: Licenses, 37CJ, p. 214, n. 73; p. 257, n. 9; p. 258, n. 24. Statutes, 36Cyc, p. 947, n. 76 New; p. 974, n. 23. Appellee was doing business at Greenwood, in this state, under the name of Woodbine Billiard Hall. Greenwood is the county seat of Leflore county, and in the Yazoo Mississippi delta levee district. Appellee brought this action in the circuit court of the first district of Hinds county, the official residence of appellant, the state auditor, for a writ of mandamus to compel appellant to audit and allow appellee's claim for a refund of privilege *867 taxes alleged to have been unlawfully collected from him by the Yazoo Mississippi delta levee district, and to certify the same to the board of levee commissioners for payment. This refund of privilege taxes was claimed under authority of section 4346, Code of 1906 (Hemingway's Code, section 6980). Appellant demurred to appellee's petition. The demurrer was overruled by the trial court. Appellant declined to plead further. Thereupon final judgment was entered in favor of appellee. From that judgment appellant prosecutes this appeal.

The facts set out in appellee's petition admitted by the demurrer are substantially as follows: That Greenwood, the county seat of Leflore county, is in the levee district; that appellee resided in Greenwood, and there operated a billiard hall with billiard tables therein; that he operated his billiard hall in 1920 and in 1925; that for the year 1920 the tax collector of Leflore county, acting also as tax collector for the levee district board, collected from appellee the sum of two hundred dollars as a privilege license tax claimed by him to be due said levee district, and for the year 1925 collected the sum of three hundred dollars for the same purpose; that said payments were made by appellee "under duress and compulsion," that on June 12, 1925, appellee applied to appellant as state auditor under the authority of section 4346, Code of 1906 (Hemingway's Code, section 6980), for an audit, approval, and refund of the sums so paid by him as privilege taxes; that appellant withheld his approval, and refused to issue his certificate to the levee board for the refund so claimed by appellee.

The privilege tax in question was collected under authority of chapter 155, Laws of 1918, which act amended section 1, chapter 104, Laws of 1912. The two acts are identical except the latter exempted from its operation Young Men's Christian Associations having billiard halls solely for the use of its members. It is apparent at once on reading the two acts that the levee district board had no authority thereunder to collect a privilege tax from *868 appellee. In each of them it is expressly provided that the privilege tax therein authorized "shall be in lieu of any and all other privilege tax, save and except a municipal tax of not exceeding fifty per cent." of the tax provided for in the acts.

Appellant, however, argues that, even if that be true, nevertheless the collection of the privilege tax in question was authorized by chapter 80, Laws of 1902, which expressly provides that the board of levee commissioners for the Yazoo Mississippi delta levee district shall be authorized to levy and collect the privilege tax therein provided on billiard halls. Appellant concedes that the Acts of 1912 and of 1918, except for section 234 of the Constitution, would have repealed chapter 80, Laws of 1902, but that section of the Constitution not having been complied with, the Act of 1902 stands unrepealed. Section 234 of the Constitution provides that no bill affecting the taxation of revenue of the Yazoo Mississippi delta levee district shall be considered by the legislature, unless such bill shall have been published in some newspaper in the county in which is situated the domicile of the board of levee commissioners of the district for four weeks prior to the introduction of such bill in the legislature, and that no such bill shall be considered for final passage by either the Senate or the House, unless the same shall have been referred to and reported by the appropriate committee of each house, and that no such committee shall consider or report any measure, unless publication thereof shall have been made as provided. The record in this case is silent as to whether the publication required by the Constitution was made or not. If such a contention could be entertained by the courts, it would require the party attacking the law upon that ground to allege, and prove that the publication required by the Constitution was not made. The statute was passed by the legislature, and it will be presumed that in doing so all constitutional requirements were complied with. Postal Tel. Co. v. Robertson Revenue Agent,116 Miss. 204, 76 So. 560. We *869 do not decide whether that presumption is a conclusive presumption or not. It is unnecessary to decide that question in this case. We conclude, therefore, that chapter 104, Laws of 1912, as amended by chapter 155, Laws of 1918, repealed chapter 80, Laws of 1902. It follows that there was no authority of law for the collection of the privilege tax in question.

Furthermore, neither the Act of 1912 nor the Act of 1918 comes within the protection of section 234 of the Constitution, because both of those acts are general, applying to the whole state. They deal with revenues of the entire state, although they indirectly affect the revenues of the levee district. Section 234 of the Constitution applies alone to legislation dealing directly and specifically with levee districts. It does not prevent the consideration and passage of a general revenue bill application to the whole state. Such a bill imposing privilege taxes for the entire state and forbidding the levy of further like taxes by counties, municipalities, or levee boards is not within the constitutional provision. Insurance Co. v. LeveeCommissioners, 95 Miss. 168, 48 So. 183.

Appellant contends, however, that, even though the tax was illegally collected, it cannot be recovered back by appellee because it was not paid under protest. Appellee's petition for mandamus does not allege that the tax was paid under protest, but it is alleged therein that it was not due; that it was unlawfully exacted and collected; and "was paid by him involuntarily and under duress and compulsion."

We think it is unnecessary to decide this question in view of the recent amendment of section 4346, Code of 1906 (Hemingway's Code, section 6980), by chapter 196, Laws of 1926. The statute as amended provides for a refund of taxes erroneously paid, whether such payment was made under protest or not, or as the result of coercive measures taken on the part of collecting officers to enforce payment, and the statute is both prospective *870 and retroactive. It applies in express terms to taxes paid both before and after its adoption.

It follows from these views that the judgment of the court below should be affirmed.

Affirmed.