| Miss. | Apr 15, 1892
delivered the opinion of the court.
There was a failure to maintain by evidence the averment of the declaration that the tax-collector of Warren county had knowledge of the liability of the defendant to pay the retaillax, and, for that, the verdict should be for the defendant; but., if that averment was maintained, the action could not be sustained under the former decisions of this court, because the essential prerequisite — the indispensable thing— a due assessment of the tax as prescribed by law for the. imposition of the tax, did not exist. As held in State v. Adler, 68 Miss., 487" court="Miss." date_filed="1891-04-15" href="https://app.midpage.ai/document/state-v-adler-7987011?utm_source=webapp" opinion_id="7987011">68 Miss., 487, whenever a tax is according to value, or depends on ascertainment of person or value by some designated official, assessment as prescribed is necessary. This is no new doctrine, or one calculated to excite surprise. It is as old as the law of taxation, and is the one proposition on which all courts and writers are agreed. It is upheld by all courts,' state and federal, as that without which there cannot be a valid charge for a tax. It was distinctly announced in this state a third of a century ago, and must be adhered to as a cardinal rule in taxation. Whenever a tax is to be fixed by assessment, the due assessment must precede any valid claim of such tax. This does not apply to that large class called privilege taxes, or taxes imposed on various callings or pursuits. There assessment is not essential, from the nature of the case, and, if th'e law does not require it, a demand for the tax may exist without it. It is competent for the legis
Section 1109 of the code of 1880, was designed to meet the case of merchants and other dealers who gave away liquors. It speaks of selling in order to prevent evasion, but its manifest purpose was to deter from giving away liquors by dealers, by subjecting them to the liability of having the tax imposed on retail liquor-dealers assessed upon and required of them by the sheriff and tax-collector of the county. He alone could fix the liability. He could not sue, but could proceed as prescribed for him in other cases where he collects taxes. In no other way could liability be imposed under that law. It was part of the system regulating the liquor traffic, and to be carried out according to its specific provisions, or not at all. The offender against this section, besides incurring liability to a fine for each act violating the law, ran the risk of being assessed by the sheriff and compelled to pay, as a tax, what licensed dealers were required to pay. This was the whole of it. It may be cause for regret that an action was not given for this tax, so that the state or its appointee might collect by suit, but that is not ground for maintaining an action where no right of action exists. "We cannot disregard settled legal rules, in which all find their protection, in. order to reach those who deserve no sympathy, and in morals should be held liable for all their misdeeds. It would give us pleasure to enforce the law against them, if we had it applicable, but we declare it as we find it. It was distinctly de
Reversed and remanded.