Adams v. Mississippi Lumber Co.

Oalhoow, J., delivered the opinion of the court. ; Appellant declined to answer oí plead' further', on’a judgment-sustaining a demurrer to his declaration, and the whole ques-> tion,,.on his appeal from that action, is as to the validity-; ,0» inyaljdity of sec. $,. eh.; 43,yp. 44, Laws 1900, which;; act, is ms, follows: . .“Section 8. On,.each land timber mill, company, oi;,corpora-; tion, or individual in .each county, who buys timber" without; buying the'land, for 5.00 acres, or less, $25. Same,'fqr-.1,OO.0\ acres, or more than 500 acres, $50, and so on at the rate .of'$25; on each 500 acres in each county so purchased; provided, that, this does not apply to sawmill operators' who -do not ship -timbe'j? orlumber out of the state.” - ''The declaration seeks to recover from the.-Mississippi Lumber-Company this privilege tax. It was demurred to, the demurrer, sustained, and the"revenue agent declined 'to amend-or pl&ad; further, and appeals to this court-. ' - The proviso makes the section void. It violates, sec. 112, of -our constitution, declaring that “taxation shall be uniform and equal throughout the state.” -It is a discrimination between [28] subjects of property ownership of the samé class. Adams v. Kuykendall, 83 Miss., 571 (35 So. Rep., 830). There is no inherent difference between timber for home sale and timber for export, and there can be no valid classification between the two. Adams v. Kuykendall, 83 Miss., 371 (s. c., 35 So. Rep., 830); Mississippi Mills v. Cook, 56 Miss., 40; Adams v. Bank, 75 Miss., 701 (23 So. Rep., 395); State v. Moore (N. C.), 18 S. E., 342 (22 L. R. A., 172); State v. Pennoyer (N. H.), Atl., 878 (5 L. R. A., 709); Ballard v. Mississippi Cotton Oil Co. 81 Miss. 507 (34 So. Rep., 533; 62 L. R. A., 407). Very many other cases might be cited. Moreover, this section is practically a tax on interstate commerce. The right of any citizen of any state to take himself or his property out of or into any state cannot be taken away, nor can it be hampered by discriminative taxation in any degree whatsoever. This right is universal, subject, only, to regulations in the exercise of the police power to conserve health or moral's-, and even these must not be arbitrarily exercised to Work discrimination. Tiedeman, State and Fed. Control, vol, 4, pp. 490, 191; Id., vol. 2, pp. 1032-1038; State v. Moore, 113 N. C., 704 (18 S. E., 342; 22 L. R. A., 472); State v. Wagener, 69 Minn., 207 (72 N. W., 67; 38 L. R. A., 677; 65 Am. St. Rep., 565); Welton v. Missouri, 91 U. S., 275 (23 R Ed., 347); State v. Bengsch, 170 Mo., 81 (70 S.W., 710); State v. Mitchell, 97 Me., 66 (54 Atl., 887; 94 Am. St. Rep., 481); State v. Montgomery (Me.), 47 Atl., 165 (80 Am. St. Rep., 389, 390); 2 Tucker on the Const., 528-534, 552. The foregoing authorities will be found to be based, some on state constitutional uniformity clauses, and some on the interstate commerce clause of the constitution of the United States, and some on the fourteenth amendment of this constitution, forbidding the abridgment of the privileges or immunities of citizens of the United States, or the denial of the equal protection of the laws. The bar can examine them at leisure. The only decision we find at all infringing on the proposi [29] tion. of the right of free egress and regress of property ont of and into a state is that of Geer v. Connecticut, 161 U. S., 519 (16 Sup. Ct., 600; 40 L. Ed., 793). In that decision Justices Brewer and Beckham took no part, and Justices Eield and Harlan dissented. However, the opinion there distinctly recognizes the principles we have announced, but makes a differentiation as to game birds killed and sought to be transported to another state, against a law forbidding their transportation, in a learned dissertation on the proprietorship by the state, in its sovereignty, of all animals feme naturae for the benefit of all the people as a food supply. The chief justice concurs in the conclusion, but prefers to put it solely on the ground that the effect of the legislation is to deny to appellee the equal protection of the laws. Affirmed.