Ratliff v. Beale

74 Miss. 247

• Court: Mississippi Supreme Court
• Decided: October 15, 1896
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The appellant, the sheriff and tax collector of Hinds county, seized an article of household furniture, which is by law exempt from taxation, to coerce the payment of a poll tax due by the appellee. The appellee thereupon sued out a writ of injunction to restrain the sale of or further proceeding against said property, and, on final hearing, the injunction was made perpetual. From that decree the tax collector appeals.

There are no controverted facts in the ■ case. It is admitted that the tax is due and unpaid and that the proceeding is, in all respects, regular, if the property seized by the officer was subject to be taken and sold for the tax. The question involved is whether nontaxable property may be sold for the payment of poll taxes, and the solution of this question rests upon the construction of section 213 of our constitution, which is as follows: ££A uniform poll tax of two dollars, to be used in aid of the common schools, and for no other purpose, is hereby imposed upon every male inhabitant of this state between the ages of twenty-one and sixty years, except persons who are deaf and dumb or blind or who are maimed by loss of hand or foot, said tax to be a lien only upon taxable property. The board of supervisors of any county may, for the purpose of aiding the common schools in that county, increase the poll tax in said county, but in no case shall the entire poll tax exceed, in any one year, three dollars on each poll. No criminal proceedings shall be allowed to enforce the collection of the poll tax. ’ ’ The question is, what is meant by that part of this section which declares £ £ said tax to be a lien only upon taxable property,” and this is determinable by the inquiry in what sense the word £ £ lien ’ ’ is employed.

For the tax collector it is contended that the word was used to designate that right or condition created and fixed by our then existing statutes, by which a charge or lien was given to the state and its counties upon all property assessed for taxes, which lien took relation back to the first day of February of the year in which the property was assessed and the tax levied, and by virtue of which the property, into whosesoever hands it might come, was liable to seizure and sale. _ This statutory lien, it is correctly argued, did not render the property in the hands of the owner to whom it was assessed liable to seizure for taxes, for this liability arose from the facts of his ownership and the assessment of the property and the levy of the tax thereon. And so it is contended that the purpose of the constitutional provision is simply to declare that no lien shall be created upon nontaxable property which would render it liable to the poll tax of the owner after it has passed into the hands of third persons.

For the appellee it is argued that the word “lien” is used in its broadest sense, and excludes not only the idea of a technical lien enforceable against third persons, but excludes also all right or power in the legislature or any executive officer or in any court to proceed against, to charge, or to subject nontaxable property to the payment of the poll tax. - -„

Counsel for the respective parties press upon the attention of the court, with great earnestness, those matters which, if viewed alone, would lead to the one or the other construction contended for. In our opinion, they are all of importance, and are to be considered. In construing the constitution, we are to resort to such rules as would aid in the construction of a statute, keeping always in view the fact that while statutes descend into particulars and details, constitutions deal usually in generalities, and furnish along broad lines the framework of government. In Daily v. Swope, 47 Miss., 367, it was said: ‘£ The constitution is a law, differing only from a statute as it is of superior and paramount force, irrepealable by the legislature, and which prescribes where it conflicts with a statute. Where the framers of the constitution employ terms which, in legislative and judicial interpretation, have received a definite meaning and application, which may be more restricted or general than where employed in other relations, it is a safe rule to give to them that signification sanctioned by the legislative and judicial use. ’ ’ To find the true meaning of the language of the constitution, we are to look to the existing body of the law, whether common or statutory (Endlich on Inter. Stat., sec. 520), to former constitutions (Alleghany v. Gilson, 90 Penn. St., 397), to existing evils, to the objects and purposesto.be accomplished, and to the remedies intended to be provided (Cooley on Const. Lim., 70; People v. Chatauqua, 43 N. Y.; Endlich on Inter. Stat., sec. 518).

We know that a large part of the property of this state has, for many years, been exempt from taxation. Since the year 1871, there has been exempt, among other things, the wearing apparel of all persons, provisions on band necessary for family consumption, all farming produce raised in this state in the hands of the producer, one gun, all poultry, household furniture not to exceed in value two hundred and fifty dollars, two cows and calves, ten head of hogs, ten head of sheep or goats, colts foaled in the state under three years old, farming utensils used for agricultural purposes, . . . the tools of any mechanic necessary for carrying on his trade, the libraries of all persons, and pictures and works of art not kept or offered for sale as merchandise. ’ ’

The valuation of real and personal property for taxation, in the year 1880, ivas $165,847,334. If to this be added the assessed value of railroads in the state, approximately, $24,-000,000, we have total value of taxable property, $189,847,334. By the eleventh census of the United States the value of the agricultural products of this state for the year 1889 was given at $73,342,995. There were in the state in that year 144,310 farms. If to each farm it be assumed that there was of all other exempt property the value of $25, there would be $3,607,950 to be added, making a total valuation of property exempt from taxation of $76,950,945. Of this exempt property, probably fully oiie-half was in cotton, the staple agricultural product of the state, and this in the course of the year all passed out of the hands of the producer. There is great force therefore in the suggestion that the framers of the constitution did not intend to provide that one-third of the property of the state should be held as exempt from a tax imposed by the convention itself in aid of a cherished object — the common schools of the state — but only intended that the property should not be subjected after it had passed into the hands of third persons— innocent purchasers of our great staple.

But we are not to look to the existing statutes alone to determine in what sense the word “lien” was used. We are to consider the condition of things as existing at the time, and fespecially must we note those grave and permeating forces for evil which were known by all men to exist, the silent and increasing influences of which were corrupting' the public conscience and threatening to involve in common ruin the morals and civilization of our race and the liberty and safety of another.

It is not the province of this court to consider with whom rested the fault which gave origin to the conditions under which the convention was assembled. We deal with those conditions only as existing facts, forming a part of the history of the times. We consider them because we are seeking to discover the sense in which an ambiguous word was employed by the convention, and because, as existing facts, they cast a light upon the question under investigation. It cannot be doubted that the question involved in the proper settlement of the electoral franchise .had been the subject of more reflection and thought, for a period of many years, than were bestowed upon all other subjects as to which our constitution underwent material change. Not only in this state, but throughout our sister states, thoughtful and anxious men turned upon the solution of the question all the light to be gathered from history or speculation. Our unhappy state had passed, in rapid succession, from civil war through a period of military occupancy, followed by another in which the control of public affairs had passed to a recently enfranchised race, unfitted by education or experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct and in intelligence, was restored to power. The anomaly was then presented of a government, whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled, under its organic law, to exercise the electoral franchise. The habitual disregard of one law not only brings it finally into contempt, but tends to weaken respect for all other laws. The most dangerous and insidious form in which this evil can exist is that which manifests itself in the disregard of public, rather than of private, right; for not only are the consequences more widely diffused and less rapidly eradicated, but because no particular right of individuals is directly involved, resistance is less prompt, and the evil progresses to dangerous proportions before its existence is noted.

Not only was the question of the franchise a most difficult one for solution, by reason of its nature, but there was added to its treatment the limitations upon state action imposed by the amendments to the federal constitution. The difficulty, as all men knew, arose from racial differences. The federal constitution prohibited the adoption of any laws under which a discrimination should be made by reason of race, color or previous condition of servitude.

It would too much extend the volume of this opinion to enter upon a review and examination in detail of all the provisions of our recent constitution in which the subject of the electoral franchise, and the cognate one of the selection of governmental agencies, are dealt with. We deal with so much only as is necessary to a determination of the question involved.

He who reads the constitution of 1869 and that of 1890 will have his attention arrested by the marked differences in the number and character of the provisions upon the franchise, and the selection of the chief magistrate of the state.

The constitution of 1869, in its single article on the franchise, sec. 2, art. 7, provided simply that “all male inhabitants of this state, except idiots and insane persons, and Indians not taxed, citizens of the United States, or naturalized, twenty-one years old aqd upwards, who have resided in this state for six months, and in the county one month next preceding the day of election, at which said inhabitant offers to vote, and who are duly registered according to the requirement of section 3 of this article, and who are not disqualified by reason of any crime, are declared to be qualified electors.” The governor and other state and county officers were, under this constitution, selected by popular election.

The corresponding article in the constitution of 1890, sec. 241, is as follows: “Every male inhabitant of this state, except idiots, insane persons, and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who has resided in this state for two years, and one year in the election district, or in the incorporated town or city, in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy, and who has paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law, for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but any minister of the gospel, in charge of an organized church, shall be entitled to vote after six months’ residence in the election district, if otherwise qualified.”

By other provisions representation in the house and senate was apportioned among the counties and the counties were arranged in three groups, and the minimum representation to which each group should be entitled in the house was fixed, but it was provided that a reduction in the number of senators and representatives might be made by the legislature ‘ ‘ if the same be uniform in each of said three divisions.” To the election of the governor by the popular vote it is necessary that some person shall receive not only a majority of the popular vote, but also a majority of “electoral votes,” which are votes distributed among the several counties in proportion to the number of representatives to which they are respectively entitled. If no person shall receive such majorities, then the house of representatives is required to choose a governor from the two persons who shall have received the highest number of popular votes. Constitution, secs. 254, 255, 256, 140, 141.

If we look at the map of the state and at the census reports showing the racial distribution of our population, and consider these in connection with the apportionment of the constitution, it will at once appear that unless there shall be a great shifting of populations, the control of the legislative department of the state is so fixed in the counties having majorities of whites as to render exceedingly improbable that it can be changed in the near future by the ordinary flow of immigration, or by the growth by births among our own people. The election of the chief executive of the state is also largely affected by the same means. It is in the highest degree improbable that there was not a consistent, controlling, directing purpose governing the convention by which these schemes were elaborated and fixed in the constitution. • Within the field 'of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain peculiarities of habit, of temperament and of character, which clearly distinguished it, as a race, from that of the whites — a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given l’atjier to furtive offenses than to the robust crimes of the whites. ' Restrained by the federal constitution from discriminating against the negro race, the' convention discriminated against'its characteristics and the offenses to which its weaker members were prone. A voter who should move out of his election precinct, though only to an adjoining farm, was declared ineligible until his new residence should have continued for a year. Payment of taxes for two years at or before a date fixed many months anterior to an election is another requirement, and one well calculated to disqualify the careless. Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder, and other crimes in which violence was the principal ingredient, were not.

True, as argued by counsel, the provision is a revenue measure, for it imposes a tax. But it is also true that the payment of the tax is one of the qualifications of an elector, and the question is, whether its primary purpose is for revenue with incidental disqualification to vote attached upon its nonpayment, or whether the tax was levied primarily as an additional disqualification to those who should not pay it, with the incident of revenue derivable from those who should pay. It is to be noted that the section is a part of the article on franchise, and not of that on common schools, in aid of which the tax was levied, and where it would more appropriately be placed as a revenue measure. This is not of great importance, but is of some weight. When a constitution is submitted to the vote of the people and becomes operative only when adopted by them, we are aware of the rule that the debates of the convention and the journals, showing how and when amendments were introduced, and the course of procedure, are of little weight. The reason is, that under such circumstances it is not so much what the members of the convention thought or said upon a given subject as what the people intended to declare by adopting the instrument, that is material. But it must be remembered that our constitution was never submitted to the people. It was put in operation by the body which framed it, and therefore the question is what that body meant by the language used.

In this view the following history of the subject of poll taxes, as appearing in the journals of the convention, will cast some light upon the question involved. The poll tax was first suggested by some amendments offered by Mr. Calhoon, the president of the convention, of which three hundred copies were ordered to be printed, and the amendments were referred to the appropriate committees. The poll tax section was among the amendments relating to franchise, and, as offered, provided that its payment should be a prerequisite to entitle one to vote. “No penalty, other than levy and sale of landed property, shall ever be exacted for its nonpayment.” Journal, p. 38.

The seventh section of the article on education, as reported by the committee on that subject, was as follows: “The legislature shall levy a poll tax of two dollars a head in aid of the school fund, and for no other purposes, and the payment of said tax shall be made compulsory, under such conditions and exceptions as may be deemed best by the legislature.” Journal, p. 121. As reported to the convention by the committee on franchise, the clause now under consideration read as follows: “Said tax to be a lien on taxable property.” Journal, p. 135. As adopted it was in its present form. Journal, p. 228.

It is evident therefore that the convention had before it for consideration two antagonistic propositions — one to levy a poll tax as a revenue measure and to make its payment compulsory; the other to impose the tax as one of many devices for excluding from the franchise a large number of a class of persons, which class it was impracticable wholly to exclude and not desirable wholly to admit. In our opinion, the clause was primarily intended by the framers of the constitution as a clog upon the franchise, and, secondarily and incidentally only, as a means of revenue.

Having reached this conclusion, it follows, as a corollary, that when the language used is susceptible of two constructions, it must be so construed as to carry into effect the purpose of the convention.

It is evident that the more the payment of the tax is made compulsory, the greater will be the number by whom it will be paid, and therefore the less effectual will be the clause for the purpose it was intended. It cannot be denied that it was the purpose of the convention to declare a different rule in reference to property subjected to taxation and that which was exempt, and when we consider the fact that a very large proportion of those it was thought desirable to exclude from the exercise of the franchise owned no other property than that which had for many years been exempted from taxation, the conclusion becomes irresistible that it was intended to leave the payment of the tax to the voluntary action of those who owned no other than nontaxable property.

Having reached this conclusion, it is nob deemed necessary to examine and review the various statutes which have been brought to our attention. They were all brought forward into the code of 1892 from the code of 1880, which was enacted under our former constitution, in which there were no restrictions. They must now be confined in their operation to such property as is within the competency of the legislature to subject to seizure and sale.

The decree is affirmed.