Adams v. Ducate

Teult, J., delivered the opinion of the court. The charter of the town of Biloxi provides: “That the resources of the corporation may be derived from such establishments as may be authorized and put to use or rent, and from the taxes on privileges granted under the provisions of this act, and from the fines to be assessed for the violations of its ordinances, and the mayor and aldermen are hereby authorized to levy and collect for the use of said town on all real estate within the corporation which is by law taxable for state purposes ; provided, that said tax shall not exceed in any one year one-fourth of one per cent upon its assessed value; and said mayor and aldermen shall have power to tax vendors of vinous and spirituous liquors an amount not to exceed fifty per cent of the amount levied for state purposes.” This constitutes the sole authority which the’ municipal [279] authorities possess with regard to the levying of taxes, and, as the power of the revenue agent is purely a derivative one, it also defines the scope of his authority in the premises. It will be noted that by the fundamental law of this municipality its resources are to be derived from certain specifically and definitely designated sources. It is not granted any general authority to levy taxes, but merely a restricted power to levy on a certain specifically denominated species of property. The principle of law that a municipality can only exercise such general power of taxation as is delegated to it by the state is of such universal acceptation as to be now both unquestioned and unquestionable. If the sovereign does not expressly delegate power to tax to a municipality, it can levy no taxes for general purposes by any inherent power. In the instant case we find that the city of Biloxi was not granted any power to assess any tax on any class or species of personal property. Being without power to make such levy, acting through its own legally constituted fiscal officers, the revenue agent cannot compel it to levy such tax. This distinction is plainly recognized in the case of Adams, Rev. Agt., v. Kuykendall, 83 Miss., 571 (35 South. Rep., 830). That case was one where the legislature, having granted a municipality full and complete power to assess taxes upon every species of property, both real and personal, undertook to except from the operation of this general grant of power a certain specially favored class of solvent credits, and this exception was held to be invalid, as being in contravention of the “uniformity and equality” clause of the constitution. But in that case the court says: “It may be taken as an established doctrine that- municipalities derive their power of levying taxes for general purposes only through a delegation from the state. The sovereign power of taxation is ■vested solely in the state.” In the instant case the sovereign did not choose to grant the city of Biloxi a general and unlimited power to levy taxes, and no taxing power can be vested in a municipality, nor can a restricted grant be expanded, by [280] judicial construction. This would be legislation. Tbe authorities of the municipality being without power to levy the tax which'the revenue agent seeks to have imposed and collected, it follows that the judgment of the circuit court in refusing to command them to do an unwarranted and void act was correct. Affirmed.