Bennett v. Jones

Reed, J., delivered the opinion of the court. Appellees filed their petition in the circuit court of Forrest county, praying for a writ' of mandamus to compel appellant, the sheriff and tax collector of that county, to issue to petitioners a privilege tax license, authorizing them to conduct the business of a pool room upon their payment of the sum of four hundred dollars, the amount of the privilege tax required by law. Appellees were conducting a pool room, under the name of “Smoke House,” in Hattiesburg, a city of less than 20,000, but not less than 10,000, inhabitants. Their privilege tax license expired on April 1,1914. They failed to procure a license during April, 1914, being the month in which such license was due. In May, 1914, they offered to pay appellant, the sheriff and tax collector, the amount [887] of four hundred dollars as a privilege tax, and requested the issuance by him of the license. He refused to receive the amount and issue the license, and demanded eight hundred dollars, being double the amount of the tax which he claimed he was compelled to collect by the requirements of section 3901 of the Code of 1906. Appellees stated all this in their petition, and claimed that, by reason of the enactment of chapter 104 of. the Acts of 1912, which is an act to raise revenue by levying privilege taxes on places for bowling alleys, billiards, Jenny Lind, pool tables, etc., and which specifies that the fax on the pool room in a city the size of Hattiesburg should be the amount of four hundred dollars, and particularly, because of the provision in section 7 of the act that all laws and parts of laws in conflict therewith are repealed, section 3901 of the Code has no application at present', and that there is now no law in force requiring the collection of the penalty for failing to pay the privilege tax under the act of 1912. Appellant filed bis demurrer to the petition, in which he assigned as a ground that he was required by section 3901 to collect double the amount of the privilege tax, because appellees were in default and had failed to procure their license during the month in which it was due. • The demurrer was overruled, and the court directed the issuance of the.writ of mandamus, commanding appellant, as sheriff and tax collector, to issue and deliver to appellees, upon the payment by them of the sum of four hundred dollars, a privilege tax license as of date the 1st of April, 1914, expiring on the 1st of April, 1915. Section 3901 of the Code of 1906, which provides damages in case of failure to procure a license reads: “All persons or corporations liable for privilege tax who shall fail to procure the license during the month in which it is due shall be liable for double the amount of the tax, and it is hereby made the duty of the tax collector to collect the amount, issue a separate license therefor, [888] and to indorse across its face the words ‘Collected as damages.’ ” We see nothing in chapter 104 of the Laws of 1912 in conflict with section 3901. Chapter 104 is an act to raise revenue by levying privilege taxes on certain places, including places operating pool tables. This act is in conflict with section 3778 of the Code of 1906 levying taxes on places for pool tables, etc., and, being in conflict, will repeal that section. So in like manner chapter 104 will operate to repeal all other laws enacted before its date which provide a privilege tax on places for pool tables, etc. Section 3901, however, is not a law to raise revenue by levying privilege taxes. It is a general provision of the statute laws for the collection of privilege tax after default has been made, by imposing a penalty in the way of damages amounting to a double tax. It applies to all privilege taxes imposed by legislative enactment, unless there is some provision in the act levying the tax to prevent its operation. We find no such provision in the act of 1912. We see nothing in chapter 210 of the Laws of 1910 which amends section 3899 and 3905', and repeals sections 3897 and 3898 of the Code of 1906 in conflict with section 3901; nor do we see anything in the section violative of the Constitution. The trial court erred in overruling the demurrer, and directing the issuance of mandamus. The sheriff was performing his duty, made by the plain requirements of the statute, when he refused to issue the license until double the amount of the tax had been paid him. Reversed. The demurrer is sustained, and the petition dismissed. Reversed.