Opinion
No. 27678.
May 6, 1929.
1. CONSTITUTIONAL LAW. Levees and flood control. Statute for levee tax purposes dividing railroads into classes, depending on mileage in district, held to violate due process and equal protection clauses ( Laws 1926, chapter 259; Constitution United States Amendment 14).
Laws 1926, chapter 259, imposing levee taxes on railroads and dividing railroads into two classes: First, railroads having not more than twenty-five miles of railroad in levee district; and, second, all other railroads therein — held arbitrary and unreasonable, and in violation of due process and equal protection clauses of Fourteenth Amendment to Federal Constitution, since classification has no reasonable relation to purpose for which statute was enacted.
2. CONSTITUTIONAL LAW. Tax collector could raise constitutionality of statute taxing railroads, where railroads discriminated against would have gained nothing by having statute held void ( Laws 1926, chapter 259; Laws 1914, chapter 282).
Tax collector could raise constitutionality of Laws 1926, chapter 259, imposing levee tax on railroads on ground that it discriminated between railroads, where railroads discriminated against would have gained nothing by having statute held void, since Laws 1914, chapter 282, would remain in full force and effect, under which complaining railroads' tax would be three hundred fifty dollars per mile, the exact amount imposed by Laws 1926, chapter 259.
3. CONSTITUTIONAL LAW. It was unnecessary to allege that statute was void because of arbitrary discrimination where defect appeared on face of statute ( Laws 1926, chapter 259).
It was unnecessary to allege in declaration that Laws 1926, chapter 259, was void, because it arbitrarily discriminated between railroads, where defect appeared on face of statute.
4. CONSTITUTIONAL LAW. Constitutional provision held to recognize validity of statutes in effect at time of adoption imposing levee tax on railroads (Constitution 1890, section 236; Laws 1886, chapter 7).
Constitution 1890, section 236, providing that "legislature shall impose for levee purposes, in addition to the levee taxes heretofore levied or authorized by law, a uniform tax," etc., held to recognize validity of Laws 1886, chapter 7, imposing levee tax on railroads, which laws were in effect at time of adoption of constitutional provision.
APPEAL from circuit court of Montgomery county, HON. JOHN F. ALLEN, Judge.
Franklin, Easterling Fox, of Jackson, and P.C. Canizaro, of Vicksburg, for appellant.
The proviso of chapter 259 of Laws of 1926, which attempts to fix the tax per mile at fifty dollars upon any railroad company owning a railroad of less than twenty-five miles situated in the levee district is an unreasonable, arbitrary and unlawful discrimination and renders the exception or proviso of said law inoperative, null and void.
Chapter 282 of the Laws of 1914; Section 236 of Constitution of 1890; Johnson, State Rev. Agt., v. Long Furniture Co., 74 So. 282; Adams, State Rev. Agt., v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Smith, Tax Collector, v. Perkins, 73 So. 797; 12 C.J., page 1152; New Jersey Central Ry. Co. v. Jersey City, 199 Fed. 237; Johnson County v. Johnson, 173 Ind. 76, 89 N.E. 590; Peo v. Raynes, 136 App. Div. 417, 120 N.Y.S. 1053; State v. Donald, 161 Wis. 188, 153 N.E. 238; State v. Donald, 160 Wis. 21, 151 N.W. 331; Detroit, etc., R. Co. v. Fuller, 205 Fed. 86; New York Consolidated Gas Co., 190 N.Y. 350, 83 N.E. 299, 16 L.R.A. (N.S.) 335; Northwestern Mutual Life Ins. Co. v. State, 163 Wis. 484, 155 N.W. 609, 158 N.W. 328; 12 C.J., page 1153; Nashville, etc., R. Co. v. Taylor, 86 Fed. 168; 12 C.J., page 1155; People v. Mesching, 187 N.Y. 8, 10 Ann. Cas. 104; Vicksburg v. Mulane, 106 Miss. 199; 63 So. 412, 50 L.R.A. (N.S.) 421; 26 R.C.L., secs. 216 and 217; Fiscal Court of Owen County v. S. A. Cox Co., 21 L.R.A. (N.S.) 85; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Cooley on Constitutional Limitations (7 Ed.), 246-248; Hyland, Sheriff, v. Sharp, 41 So. 264, 88 Miss. 567; Louisville Gas Electric Co. v. Clell Coleman, Advance Opinions of the Supreme Court of the United States, No. 12, page 486 (May 15, 1928).
The state tax collector may attack the constitutionality of a statute on the ground of unjust discrimination, although he does not belong to class discriminated against.
12 C.J. 764, sec. 181; Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; Section 236 of the State Constitution; Chapter 280, Laws of Mississippi of 1914; Davis Construction Co. v. Boone County, 132 N.E. 629, 21 A.L.R. 557; 6 R.C.L. 91, 92; 2 R.C.L. Supp. 23; Zuelly v. Casper, 160 Ind. 255, 63 L.R.A. 133, 67 N.E. 103; Miller v. Jackson, 178 Ind. 503, 99 N.E. 102, 111; Norton v. Shelby County, 118 U.S. 425, 30 L.Ed. 178; State v. Candland, 104 P. 285, 36 Utah, 406, 140 Am. St. R. 834; 12 C.J. 765, section 183; Johnston v. Long Furniture Co., 74 So. 283; Adams, Revenue Agt., v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Buchanan v. Warley, 245 U.S. 60, 72, 62 L.Ed. 149; L.R.A. 1918C 210. Gardner, Odom Gardner, of Greenwood, for appellee.
One cannot attack the constitutionality of an act without pointing out in express direct terms that section of the Constitution that is violated or that he invokes.
Meek v. Humphreys County, 133 Miss. 386; Maxey v. The State, 40 Miss. 570; Williams v. Warren County, 146 Miss. 727; Dart v. Gulfport, 147 Miss. 534.
Objection that a statute is unconstitutional because discriminatory can only be taken and made by those discriminated against.
14 L.R.A. (N.S.) 787; 18 A. E. Ann. Cas. 1146; 56 L.R.A. 252; 176 U.S. 114, 44 L.Ed. 392; 187 U.S. 540, 47 L.Ed. 293; 105 U.S. 305, 26 L.Ed. 1044; 183 U.S. 300, 46 L.Ed. 207.
Watkins, Watkins Eager, of Jackson, for appellee.
Act of the state legislature should not be stricken down as being in violation of either state or National Constitution, unless such conflict appears beyond a reasonable doubt.
Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; University of Miss. v. Waugh, 105 Miss. 623; Johnson, State Rev. Agt., v. Reeves Co., 112 Miss. 227, 72 So. 925; Miller v. State, 130 Miss. 564, 94 So. 706; State v. Wheatley, 113 Miss. 555, 74 So. 426.
Great liberality and discretion allowed legislature in matter of classification, and a statute will never be stricken down by the courts by reason of legislative classification, unless the same be arbitrary and unreasonable.
Justice Harlan F. Stone, Address, American Bar Ass'n, Seattle, Wash., Vol. 53, p. 271; Weaver v. Palmer, 270 U.S. 402, 70 L.Ed. 654; United States v. Katz, 271 U.S. 354, 70 L.Ed. 986; Ft. Smith L. T. Co. v. Board of Improvement, 274 U.S. 487, 71 L.Ed. 1112; Rast, Tax Collector, v. Vandeman, 240 U.S. 342, 60 L.Ed. 679; Clark v. Kansas City, 176 U.S. 114, 44 L.Ed. 392; Railway Co. v. Cade, 233 U.S. 642, 58 L.Ed. 1135; South Carolina v. McMaster, 237 U.S. 63, 59 L.Ed. 839; Middleton v. Texas P. L. Co., 249 U.S. 152, 63 L.Ed. 527; Dominion Hotel v. State of Arizona, 249 U.S. 265, 63 L.Ed. 597; Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095; Traction Co. v. Bd. of Improvement, 274 U.S. 387, 71 L.Ed. 1112; Kidd v. Alabama, 188 U.S. 730, 47 L.Ed. 669; Railroad Co. v. Matthews, 174 U.S. 96, 43 L.Ed. 909; Insurance Co. v. Lewis, 233 U.S. 389, 58 L.Ed. 1011; Orient Ins. Co. v. Daggs, 172 U.S. 557, 43 L.Ed. 552; Heath v. Worst, 207 U.S. 338, 52 L.Ed. 236; Mutual Line Co. v. Martel, 222 U.S. 225, 56 L.Ed. 175; Halter v. Nebraska, 205 U.S. 234, 51 L.Ed. 696; Miller v. Wilson, 236 U.S. 373, 59 L.Ed. 628; Huggins v. Home Mutual Fire Ins. Co., 65 So. 646, 107 Miss. 650; Robertson, Rev. Agt., v. Express Co., 94 So. 210, 130 Miss. 305; State ex rel. Knox v. R.R. Co., 138 Miss. 70, 104 So. 689; Railroad Co. v. State, 110 Miss. 290, 70 So. 355; Knox, Atty.-Gen., v. G., M. N.R. Co., 138 Miss. 70, 104 So. 689.
The legislature may, in its discretion, for purposes of taxation, classify railroads on mileage basis, such classification being neither palpably arbitrary nor unreasonable.
C., B.R.R. Co. v. Curtis, Atty.-Gen., 94 U.S. 155, 24 L.Ed. 94; Dow v. Beidelman, 125 U.S. 680, 31 L.Ed. 841; New York N.H.R. Co. v. New York, 165 U.S. 628, 41 L.Ed. 853; Erb, Receiver, v. Morasch, 177 U.S. 584, 44 L.Ed. 837; Chi., R.I.R. Co. v. Arkansas, 219 U.S. 453, 55 L.Ed. 290; Chas. Ohio R. Co. v. Conley, Atty.-Gen. (W. Va.), 230 U.S. 513, 57 L.Ed. 1597; Citizens' Telephone Co. v. Fuller, 229 U.S. 322, 57 L.Ed. 1206; Atlantic Coast Line v. Georgia, 234 U.S. 280, 58 L.Ed. 1312; Tanner v. Little, 240 U.S. 369, 60 L.Ed. 691; Iron Mountain Co. v. Arkansas, 240 U.S. 518, 60 L.Ed. 776; Wilson v. New, 243 U.S. 332, 61 L.Ed. 755; Middleton v. Tex. P. L. Co., 249 U.S. 152, 63 L.Ed. 527; So. Pac. Ry. Co. v. Bartime, 170 Fed. 743; Consumers' League v. Ry. Co. (Colo.), Ann. Cas. 1914A, 1158; So. Ind. Ry. Co. v. R.R. Commission (Ind.), 87 N.E. 972; R.R. Co. v. Conley (W. Va.), 67 S.E. 637; Wellman v. Chi. Ry. Co. (Mich.), 47 N.W. 493; Storrs v. R.R. Co., 11 So. 230; Northern Pac. v. Barnes (N.D.), 51 N.W. 393; N.O.R.R. Co. v. State, 110 Miss. 290.
Argued orally by P.C. Canizaro and Lamar F. Easterling, for appellant, and by A.F. Gardner, for appellee.
The defendant owns and operates a railroad, eighteen and forty-one hundredths miles of which lie in the Mississippi levee district, and this suit is to recover from it the sum of twelve thousand one hundred fifty dollars and sixty cents, levee taxes alleged to be due by it for the years 1926 and 1927, and statutory damages thereon. A demurrer to the tax collector's declaration was sustained in the court below, and his suit dismissed.
Chapter 7, Laws of 1886, imposed a levee tax on railroads in the Mississippi levee district of one hundred dollars per annum on each mile of the main line thereof in the district. This statute was amended by chapter 282, Laws of 1914, so as to impose a tax of three hundred fifty dollars per annum upon each mile of the main line of railroads in the district. By chapter 259, Laws of 1926, the 1914 statute was amended by adding thereto the following: "Provided, further, that the tax per mile per annum on the main line of any railroad company which does not own in excess of twenty-five miles of railroad in the Mississippi levee district shall be fifty dollars per annum."
The appellee paid fifty dollars per mile on its eighteen and forty-one hundredths miles of railroad in the district for the years 1926-1927, and this suit is to recover the difference between that amount and three hundred fifty dollars per mile and damages thereon. The appellant's contentions are: That chapter 259, Laws of 1926, is void, and that consequently chapter 282 of the Laws of 1914 remains in full force and effect; but, if mistaken in this, that the proviso in chapter 259, Laws of 1926, is void.
Chapter 259, Laws of 1926, divides railroads into two classes: First, railroads having not more than twenty-five miles of railroad in the levee district; and, second, all other railroads therein. The ground of the appellant's contention is that this classification has no reasonable relation to the purpose for which the statute was enacted, but is arbitrary and unreasonable, and therefore in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution. This is so manifestly correct that the citation of authorities therefor would be supererogatory. It will not be necessary for us to decide whether this results simply in the proviso of chapter 259, Laws of 1926, being void, or in the whole statute being void, for in either event the tax which the appellee will have to pay will be the same; that is, three hundred fifty dollars per annum on each mile of its railroad in the levee district.
But it is said that the question of the statute's constitutionality, because of its arbitrary discrimination between railroads, can be raised only by a railroad therein discriminated against. The rule thus invoked "is that a court will not declare a statute void because of repugnance to a provision of a Constitution for the protection of persons, unless requested so to do by a person of the class for whose protection the provision of the Constitution was adopted." City of Jackson v. Miss. Fire Insurance Co., 132 Miss. 415, 95 So. 845. There are several exceptions to this rule, and according to counsel for the appellant there are two such exceptions within which this case comes: First, this rule does not apply where taxes claimed to be due the state or its subdivisions are involved; and, second, it does not apply where there is no probability of the validity of the statute being challenged by one of the class discriminated against, or, if so challenged, it will not be necessary for the court to decide that question. We will pretermit the first of these contentions, and come at once to the second, which is supported by authority.
In event a railroad discriminated against by this statute should challenge the validity thereof on the ground that it is arbitrarily discriminated against, it would not be necessary for the court to decide the question, for so to do would profit the complaining railroad nothing; for, if the statute should be held void, chapter 282, Laws of 1914, would remain in full force and effect, under which the complaining railroad's tax would be three hundred fifty dollars per mile, the exact amount imposed by chapter 259, Laws of 1926; or, if the proviso only of chapter 259, Laws of 1926, is void, the same result would follow. This rule seems not to have been called to the attention of this court, and was overlooked by it, in the case of City of Jackson v. Mississippi Fire Insurance Co., 132 Miss. 415, 95 So. 845.
Again, it is said that the appellant cannot challenge the validity of the statute, for the reason that the declaration does not allege that the statute is void, for the reason that it arbitrarily discriminates between railroads. No such allegation in the declaration was necessary for the reason that the defect appears on the face of the statute.
The appellee's last contention is that chapter 7, Laws of 1886, as amended by the statutes hereinbefore referred to, is void for the reason that the tax thereby imposed is on property, and therefore violates section 112 of the state Constitution, which was adopted in 1890. It will not be necessary for us to decide whether these statutes conflict with that section of the Constitution. When the Constitution was adopted, chapter 7, Laws of 1886, was in full force and effect, and was recognized and continued in force by section 236 of the Constitution, which provides that "the Legislature shall impose for levee purposes, in addition to the levee taxes heretofore levied or authorized by law, a uniform tax of not less than two nor more than five cents an acre, per annum, upon every acre of land now, or hereafter, embraced within the limits of either, or both, of said levee districts." The words we have italicized recognize the validity of the tax here in question and authorize the Legislature to continue to impose it. The demurrer to the declaration should have been overruled.
Reversed and remanded.