City of Jackson v. Newman

Cooper, J., delivered the opinion of the court. The police power conferred upon the board of mayor and aldermen of the city of Jackson did not authorize them to so regulate the business of the residents of the town as to derive a revenue therefrom. The power to tax is a separate, independent power, and exists in municipal corporations only to the extent to which it is clearly conferred by their charters, and its existence cannot be implied or deduced from other powers conferred. The ordinances under which the collections were made from the appellee were clearly intended as means for raising revenue, and it is apparent that the fees required were not for the purpose of paying the cost of the labor and material in issuing the license. The ordinances declare that “ there is hereby levied a tax on privileges as follows.” It is said, however, that, admitting the claim to have been made under the power to tax, instead of under the police power, the city had such authority, and it is claimed to exist under section three of the act of incorporation, which provides as follows: “ They shall have power to levy a tax in each and every year in a sum not exceeding fifty cents on every hundred dollars of value thereof, on all lots of ground, or lots and tenements within said city; and they shall have full power and authority to levy taxes on all property and things not hereinafter specified in this act, subject to taxation in the city; and [389] they shall have power to fix the rate of taxes on all merchants, auctioneers, brokers, vendors of lottery tickets, tavern keepers, proprietors of theatres, circuses and menageries, and on all persons making any public exhibition of their personal powers or agility, or anything they may possess, for which exhibition they shall charge an admittance fee to such as may attend.” Section twenty-three provides that “ the amount of licenses assessed and received, and all fines and forfeitures that may arise, accrue, or that may be assessed for or in virtue of this act, shall inure to said corporation for the benefits of said city.” The power to tax conferred by section three of the statute of incorporation includes only taxation of property and the callings therein enumerated. The privileges enumerated upon which taxes may be levied are those of merchants, auctioneers, brokers, vendors of lottery tickets, tavern-keepers, proprietors of theatres, circuses and menageries, and other exhibitions to which an admittance fee is charged. In Ex parte Taylor, 58 Miss. 478, it was held that the city of Vicksburg, under a clause of its charter authorizing it to levy and collect a corporation privilege tax “upon the business, trade, or employment of all auctioneers, grocers, merchants, brokers, bankers, cotton factors and cotton sellers, retailers, taverns, hotels, boarding-house keepers, coffee-house keepers, retail liquor dealers, confectioners, pedlers, junk-dealers, and others of like character, as the board may designate,” could not impose a privilege tax upon a person exercising the business of a commercial traveller, because the employment was not of like character with those which the city was authorized to tax. The present case is one more clearly beyond the exercise of the power to tax by the town, and the appellee is entitled to the recovery obtained, unless it appears that the payment was voluntarily made. The evidence shows that the appellee was spoken to by the tax collector of the town, and requested to pay the license fees as they became due under the ordinances ; and that the tax collector stated to him that he would have to stop his team if the taxes were not paid, and thereupon the appellee went to the office of the collector, and paid the license fees, complaining, however, that the amount charged was exorbitant. Under [390] what circumstances the payment of an illegal or unwarranted tax will be considered to have been made under compulsion, the authorities in the different States are widely divergent. In this State, it is settled that, if at the time the demand is made the collector is armed with authority of law to seize the goods or arrest the party if the tax is not paid, and the party objects to its collection because of its illegality, but pays to prevent a seizure of his goods or the arrest of his person, the payment is compulsory and may be recovered back. Vicksburg v. Butler, 56 Miss. 72. On the other hand, if the payment is made by the party without objection, it cannot be recovered, although non-payment would have subjected him to criminal prosecution. Tupelo v. Beard, 56 Miss. 532. In the case at bar, the collector had no authority, at the time he called on the appellee for payment, to seize his property or arrest his person, nor was any suggestion made that either would be attempted. At most the statement was that the appellee would not be permitted to pursue his business unless the licenses were obtained. No duress of person or of property was threatened, and the payments were voluntarily made, and the appellee was not entitled to recover the same. Judgment reversed.