Smith v. City of Vicksburg

54 Miss. 615 | Miss. | 1877

Simralh, C. J.,

delivered the opinion of the court.

This suit was brought to procure a judicial interpretation of the question whether the second article of the twenty-seventh section of the charter of the city of Vicksburg, granted by the legislature the 7th of April, 1876, is inconsistent with the first sectipn of the act of March 1, 1875, entitled “ An Act to regulate the tax on privileges, and to provide a uniform license system.” The city construed its charter as conferring the unrestricted right to levy and collect license taxes, and accordingly passed an ordinance fixing the rate of taxation on the business, trades and employments carried on within the corporate limits, from its own views and discretion, and without reference to the first section of the act of 1875. W. H. Smith, the appellant, under the ordinance was assessed on his business as a merchant, dealing on a capital stock of between 110,000 and $15,000, a larger sum than was authorized by the act of 1875, and complains that the tax is excessive and illegal.

The article of the city charter referred to empowers the board of mayor and aldermen to levy and collect, for municipal purposes, a privilege or license tax on the businesses, trades and employments therein enumerated, “ and others of like character, as the board may designate,” &c. No reference is made to a rate of taxation. The scope of the article seems to be to impart the right to assess license or privilege taxes.

It is contended by Smith, the appellant, that the general statute of March 1, 1875, imposed a limit on the power of incorporated cities and towns to assess and collect license or privilege taxes, which was not repealed by the city charter. This act, in its first section, contains a schedule of the business, trades and occupations on which, in its own language, “ a tax upon privileges is levied,” at the several specific rates therein set forth. It is the trade or business on which the burden is laid, and not the capital therein invested or the property owned, though the amount of the stock in trade, or the value of the property operated in the business, is made in many instances the criterion by which the tax is graduated. The theory of the act is to exact a certain sum from persons pursuing trades, employments or professions, as a license to carry on the business. A clause in the last paragraph of the first section is, “ The tax on privileges imposed by this section shall not be liable to taxation by any incorporated city or town to an amount exceeding fifty per centum of the State tax herein provided, nor by any county in any amount whatever, provided that no additional tax shall be collected by county, city or town on any insurance, telegraph, express or sleeping-car companies.”

It is the duty of the courts, in the construction of statutes, to lean against a repeal by implication. Although two acts are seemingly repugnant, yet they shall, if possible, have such construction that one may not be a repeal of the other by implication, though there be negative words even. Dwarris on Statutes, 674; Goldson v. Buck, 15 East, 372; McAfee v. Southern Railroad, 36 Miss. 669, 675. Repeal by implication arises from necessity only, because the two statutes are incoU-sistent, and the one cannot have effect without displacing the other. If the charter of the city in the particular quoted can be so construed as to harmonize with the act of 1875, there is no necessary inconsistency, and no repeal of the latter by the former. The scope and intent of art. 2 of § 28 of the city charter was to authorize the board of mayor and aldermen to levy and collect privilege taxes. The purpose of the clause of the first section of the act of 1875, already quoted, was to impose a limitation on tbe power of incorporated cities and towns to assess such taxes. The State had by general law declared a policy on this subject, that the towns and cities, while they might tax the privilege to pursue the business of merchant, grocer, factor, banker, and the like, within their corporate limits, should not exceed fifty per centum on the State tax. This general law applied to all the cities and towns then incorporated, as well as to such as might thereafter be incorporated. The subsequent incorporation of the city of Vicksburg with a privilege to assess license taxes must be regarded as in subordination to the general law. This construction of the two statutes, doing no violence to the language of either, gives them an harmonious operation, and carries out the legislative plan and intent. The city has authority to assess and collect privilege taxes, but must exercise it within the limits prescribed by the general law. The grant of the power to tax employments for city purposes does not necessarily repeal the prior law which limited the rate.

We reverse the decree of the Chancery Court, and remand the cause, with instructions, on payment by Smith, the appellant, of fifty per centum of the privilege tax assessed to him by the State under the act of 1875, or which might have been assessed to him as a privilege tax, to make perpetual the injunction against the collection of the residue of the tax assessed to him, and attempted to be collected by the city officials.