Zemurray v. Bouldin

40 So. 15, 87 Miss. 583

Opinion

Harree, Special J.,

Footnotes

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delivered the opinion of the court.

This cause comes here on appeal from a final judgment dismissing plaintiff’s action, after a demurrer to the declaration had been sustained. Upon the showing made by the declaration, the plaintiff was entitled to recover some part of his demand; and, since this cause must be reversed and remanded, we content ourselves with indicating the general principles which should control on the trial in the court below.

It is clear that the privilege tax levied upon “trading cars” is on the occupation, and not on a specific car, and that plaintiff in this case, upon the facts shown, was exercising such occupation. It is also clear that the legislature meant to limit the operation of each license to one particular route, for a distance not exceeding the miles named, for a period, of one year, and that the distance is to be computed, not from the point where the car first enters the state, but from the point where it first offers for business as a trading car. In the case at bar, the license issued in May, 1904, in the city of Jackson, by the sheriff of Hinds county, operates as a state license to plaintiff for one year, over one particular route, and only one, for a distance not exceeding one hundred and fifty miles from the point where, under said license, bananas are first offered for sale. Likewise the levee-board license, being entirely separate and distinct, must take into account, in determining the distance, the miles operated within the levee district, counting from the point where bananas are first offered for sale in such levee district, and not from the point where the car first enters the state.

Laws 1902, ch. 80, sec. 10, p. 134, granting the levee board power to levy and collect privilege taxes, specifically fixes the damages to be collected for nonpayment at ten per cent of such tax. This provision remains in force, not being affected by Laws 1904, ch. 76, sec. 112, p. 84. Since tbe legislature has fixed the penalty, tbe levee board bas no power to change it by order. The penalty fixed in Laws 1902, ch. 80, sec. 4, p. 133, applies only to one who has been convicted of a default, and can only be exacted under a judgment of court, and not by the tax collector.

The cause is reversed and remanded, to he proceeded with in accordance with this opinion.

Owing to illness, Chief Justice Whitfield was forced to retire from the bench for a few days, and William It. Harper, Esq., a member of the supreme court bar, was appointed and commissioned to act in his place. The opinion in this case was rendered by Special Judge Harper while so acting.