Smith v. Willis

78 Miss. 243 | Miss. | 1900

Calhoon, J.,

delivered the opinion of,the court.

The land of Mrs. Willis had been in Warren county, but was taken from Warren and put in Issaquena, in order to compensate that county for territory taken from it for the construction of the county of Sharkey. Laws 1877, p. 58. Afterwards all of Issaquena was put in the Mississippi levee district. Laws 1877, p. 73, sec. 1; Id., p. 77, sec. 12. Thereupon the tax collectors proceeded to collect the levee tax from her land, though while it was in Warren it was in no levee district, and therefore free from that tax.

Having paid the levee tax under protest, she sued to recover it back, and the learned court below sustained her claim for recovery on the ground, no doubt, that, although her land is in the levee district, all of which is taxed by the letter of the law, nevertheless she ought not, according to the reason and spirit of it, be made to pay, because the land is to the south and east of the extreme southern end of the levee, and actually injured by it instead of receiving any benefit. Her contention is that, being in fact entirely unprotected, the courts should hold the land, according to the purpose of the law and of the constitution, within the exemption of the lands between the levee and the river, though not in fact between them. Constitution 1890, sec. 238, expressly prohibits the taxation for levee purposes of any land between the levee and the river, but section 228 recognizes the ‘ ‘ Mississippi levee district ’ ’ as formerly created by the legislature, and provides that it shall remain as so created until changed by law. Section 234 prohibits any consideration of a change of the boundary of the district, even by the legislature, except upon four weeks’ previous publication of the proposed bill, and, besides, other restrictions are thrown around such legislation. It would seem to result, logically, from the argument of the learned counsel for Mrs. Willis, that, in any case of land directly east of the main line of the levee, which, for any reason, it did not in fact protect or benefit in any degree — and such instances, no doubt, may be found — the courts should hold such land not liable to levee taxation. From such a • position it is inescapable that we should assert a doctrine of comparative benefits and graduation of levee tax servitudes. We may not do this. When the constitution and the laws put an entire county in a district for local taxation, the courts cannot legislate any part of it out of their operation. The only appeal Mrs. Willis has must be to the lawmaking department of the government.

Reversed and remanded.