Adams v. Fragiacomo

Woods, J., delivered the opinion of the court. Has the revenue agent the authority to maintain this action? The answer will be found to have already been made in several recent opinions of this court. In the case of the State v. Order of Elks, 69 Miss., it is declared that the second section of the act of February 24, 1890, was repealed by the general revenue law, chapter 116, code of 1892. (It will be seen, in the opinion in this case, page 897, 69 Miss., that § 2, act of February 24, 1890, is said to have been repealed by the chapter of the code of 1892, entitled “ Revenue Agent; ” but it is clear that, by some inadvertence, these words, “revenue agent,” are erroneously used, and that reference was had to chapter 116, entitled “ Revenue.” The mere verbal inaccuracy, however, is so manifest that the legal reader will not be misled.) In the case of State v. Hill, ante, p. 106, it is held that the act of February 22, 1890, creating the office of revenue agent, was repealed by chapter 126, code of 1892, entitled “ State Revenue Agent.” The authority of the state revenue agent to maintain this action must be found now in the code of 1892. The only action to be found in this code maintainable against persons selling liquors unlawfully, is in § 1590, in which it is provided that every person so offending “ shall be subject to pay to the state, county arid the city, town or village where the offense was committed, each, the sum of five hundred dollars,” etc. In McBride v. State, ante, p. 716, it is held that this sum of five hundred dollars was a penalty recovei’able only by civil suit by the state, county or city, town or village, and not by the revenue agent. It is useless to elaborate, for, on the authority of the cases hereinbefore named, it is settled that the action against appellee cannot be maintained by the state revenue agent. [803] Counsel for appellant are in error in supposing that § 3408, code of 1892, confers authority for maintaining civil actions against persons selling liquors without paying the license tax required in such cases. The section named is part of chapter 108, code of 1892, which treats of and deals with privilege taxes as distinguished from a license tax to retail liq.uors. • In the privilege taxes enumerated and provided for in that chapter, the license tax of a retail liquor-dealer is not to be found, and the proceedings, civil and criminal, provided for in the concluding sentence of said section are applicable only to the delinquent privilege tax-payers, whose callings are taxed under said chapter 108. Affirmed.